EXHIBIT 10.20
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), entered into as of this
15th day of September, 1999, by and between Xxxxxx Software, Inc., an Ohio
corporation (the "Company"), and [EMPLOYEE NAME HERE] (the "Optionee").
WITNESSETH:
WHEREAS, the Board of Directors of the Company and the Shareholders of
the Company have adopted the Xxxxxx Software, Inc. 1998 Share Incentive
Compensation Plan (the "Plan"); and
WHEREAS, in order to provide additional incentive to the Optionee to
serve as an employee of the Company and to devote substantial time and effort to
further the Company's business and operations, the Board has determined that the
Optionee should be granted a stock option upon the terms and conditions set
forth in this Agreement, and for the number of common shares, without par value,
of the Company set forth in this Agreement (the "Shares");
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
1. Definitions. Capitalized terms shall have the meanings set
forth below unless otherwise specifically set forth elsewhere herein:
(a) The word "Agreement" shall mean this instrument, including the
Schedules and Exhibits attached hereto in their latest form.
(b) The word "Board" shall mean the Board of Directors of the
Company or, in the event a Committee has been established to
administer the Plan, such Committee.
(c) The word "Code" shall mean the Internal Revenue Code of 1986,
as amended, and any successor thereto.
(d) The word "Option" shall mean the right and option of the
Optionee to purchase Shares pursuant to the terms of this
Agreement.
(e) The words "Option Price" shall mean the price at which Shares
may be acquired upon the exercise of any Option.
2. Grant of Options. Upon the terms and conditions set forth in
this Agreement, the Company agrees that it shall grant to the Optionee Options
to purchase Shares as set forth on Schedule A attached hereto and incorporated
herein by reference. The Company reserves the right to revise and amend Schedule
A at any time and from time to time during
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the term of this Agreement to reflect the granting of additional Options
hereunder, and the terms thereof; provided, however, that, except as expressly
permitted under the Plan, the Company will not make any amendment to Schedule A
which adversely affects the rights and interests of the Optionee in any Options
which have been granted and remain outstanding and effective as of the date of
such proposed amendment, without the written consent of the Optionee to such
amendment. The nature of such Options, the number of Shares for which such
Options are exercisable, the Option Price per Share of such Options, the date of
grant of such Options, the term of such Options, the vesting provisions related
to such Options and certain other terms of such Options shall be as set forth on
Schedule A attached hereto, as amended by the Company as described above.
3. Exercise of Options. An Option may be exercised by delivering
to the President of the Company at its principal office, The Bridge Building,
X-00,00000 Xxxx Xxxx, Xxxxx Xxxxx, Xxxx 00000, a completed Notice of Exercise of
Option in the form of Exhibit A attached hereto setting forth the number of
Shares with respect to which the Option is being exercised. Such Notice shall be
accompanied by payment in full of the Option Price for such Shares. Such payment
shall be made by the Optionee's good check payable to the Company in the amount
of the aggregate Option Price for such Shares.
4. Issuance of Share Certificates. Subject to the provisions of
the last sentence of this Section 4, upon receipt by the Company prior to
expiration of an Option of a duly completed Notice of Exercise of Option to
exercise such Option, accompanied by full payment for the Shares being purchased
pursuant to such Notice (and, with respect to any Option exercised pursuant to
Section 8 by someone other than the Optionee, accompanied in addition by proof
satisfactory to the Board of the right of such person to exercise such Option)
and upon establishment to the Company's satisfaction that such payment has been
irrevocably credited to the appropriate Company bank account, the Company shall
promptly cause to be made or otherwise delivered to the Optionee (or such other
person having the right to exercise such Option), a certificate for the number
of Shares so purchased. The Optionee shall not have any of the rights of a
shareholder with respect to the Shares which are subject to an Option unless and
until a certificate representing such Shares is issued pursuant to the valid
exercise of such Option. The Company shall not be required to issue any
certificates for Shares upon the exercise of an Option prior to (a) obtaining
any approval from any governmental agency which the Board of Directors of the
Company shall, in its sole discretion, determine to be necessary or advisable,
(b) the admission of such Shares to listing on any national securities exchange
on which the Shares may be listed, and (c) completion of any registration or
other qualification of the Shares under any state or federal law or ruling or
regulations of any governmental body which the Board of Directors of the Company
shall, in its sole discretion, determine to be necessary or advisable, or the
determination by the Board of Directors, in its sole discretion, that any
registration or other qualification of the Shares is not necessary or advisable.
5. Restrictions on Transfer in Code of Regulations. The Optionee
hereby acknowledges the existence of restrictions on the transfer of Shares
under the Code of Regulations of the Company, a copy of which restrictions are
attached hereto as Exhibit B.
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Upon the exercise of the Option, the Optionee agrees to be bound to the terms
thereof (as the same may be amended from time to time in accordance with its
terms). If at any time it becomes necessary or appropriate for the Optionee to
execute an agreement containing comparable restrictions on transfer which the
Company has determined to substitute for such restrictions on transfer in the
Code of Regulations, the Optionee hereby agrees to promptly do so upon request
by the Company.
6. Call Option Agreement. As a condition precedent to the
issuance by the Company of certificates evidencing the ownership of Shares after
the exercise of an Option, the Optionee must have executed a Call Option
Agreement substantially in the form of Exhibit C attached hereto and
incorporated herein by reference prior to the date of issuance of such a
certificate upon the first exercise of such Option. Notwithstanding anything to
the contrary, if the Optionee has not executed such Call Option Agreement for
any reason, any exercise of such Option will be null and void and of no force or
effect, ab initio, and the Optionee shall not be entitled to the issuance of
Shares pursuant thereto. In such event, the Company will promptly return to the
Optionee the Option Price paid by the Optionee upon such exercise.
7. Other Provisions Relating to Shares. All Shares issued
pursuant to the exercise of Options shall bear such notation or other statement
concerning the restrictions on such Shares imposed by the Code of Regulations of
the Company as may be required by Ohio law in order to make such restrictions
enforceable against the holder thereof, subsequent holders, and any potential or
actual transferees of such Shares.
8. Successors in Interest, Etc. This Agreement shall be binding
upon and inure to the benefit of any successor of the Company. The Options shall
not be transferable other than by will or the laws of descent and distribution
as set forth on Schedule A attached hereto and may be exercised during the
lifetime of the Optionee only by the Optionee; provided that a guardian or other
legal representative who has been duly appointed for the Optionee may exercise
an Option on behalf of the Optionee.
9. No Liability Upon Distribution of Shares. The liability of the
Company under this Agreement and any distribution of Shares made hereunder is
limited to the obligations set forth herein with respect to such distribution
and no term or provision of this Agreement shall be construed to impose any
liability on the Company or the Board in favor of any person with respect to any
loss, cost or expense which the person may incur in connection with or arising
out of any transaction in connection with this Agreement.
10. Provisions of Plan Control. This Agreement is subject to all
of the terms, conditions and provisions of the Plan, as amended from time to
time, and to such rules, regulations and interpretations of the Plan as may be
adopted by the Board and in effect from time to time. A copy of the Plan is on
file at the Company and is incorporated herein by reference. In the event and to
the extent that this Agreement conflicts or is inconsistent with the terms,
conditions and provisions of the Plan, the Plan shall control and this Agreement
shall be deemed to be modified accordingly.
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11. Withholding. The Optionee agrees that the Company may make
appropriate provision for tax withholding with respect to any exercise of an
Option including, without limitation, withholding such amount that the Company
deems appropriate from any compensation or other amounts due the Optionee from
the Company and requiring the Optionee to provide the Company with funds in the
amount the Company deems appropriate as a condition precedent to the Optionee's
exercise of an Option and the issuance of Shares pursuant to any such exercise.
12. Employment by Company. Nothing herein shall be construed as
an offer or commitment by the Company to continue for any period of time the
employment of, or as a limitation on the right of the Company at any time with
or without cause to terminate the employment of, the Optionee.
13. Captions. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of this
Agreement.
14. Investment Representation. The Optionee hereby represents and
warrants that any Shares which may be acquired by virtue of the exercise of an
Option shall be acquired for investment purposes only and not with a view to
distribution or resale.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without regard to or
for the conflicts of laws principles thereof.
16. Exhibits and Schedules. The Exhibits and Schedules attached to
this Agreement shall constitute an integral part of this Agreement as if fully
rewritten herein.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer, and the Optionee has
hereunto set his hand, all as of the date first above written.
XXXXXX SOFTWARE, INC. OPTIONEE
By__________________________________ ____________________________
It's_______________________________
Date:______________________________
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SCHEDULE "A"
GRANTS AND CERTAIN TERMS OF OPTIONS
Option Grants
1. DATE OF GRANT:
OCTOBER 15, 1999
NAME OF OPTIONEE:
[OPTIONEE NAME HERE]
NUMBER OF SHARES COVERED BY OPTION:
An aggregate of up to 100 Shares
OPTION PRICE:
$0.00 per Share
DURATION OF EXERCISE PERIOD OF OPTION:
General. The period from the date, and to the extent, such
Option becomes exercisable under "VESTING SCHEDULE" below until the tenth (10th)
anniversary of the date of grant of such Option, subject to earlier expiration
as provided for below. Such Option shall expire at the close of regular business
hours at the Company's principal office in Cleveland, Ohio, on the last day of
the term of such Option, or, if earlier, on the applicable expiration date
provided for below.
Termination of Status as an Employee of the Company. On the
date the Optionee ceases to be an employee of the Company for any reason other
than death, the Option shall terminate. The Optionee's employment with the
Company shall not be deemed to have terminated while he is on a military, sick
or other bona fide approved leave of absence from the Company, as such leave of
absence is described in Section 1.42-7(h) of the Federal Income Tax Regulations
or any lawful successor regulations thereto.
Death of Optionee. If the Optionee dies while he is an
employee of the Company and during a period in which the Optionee was entitled
to exercise the Option as described under "VESTING SCHEDULE" below, such person
or persons as shall have acquired, by will or by the laws of descent and
distribution, the right to exercise such Option (the "Personal Representative")
may exercise such Option to the extent of the purchase rights, if any, which
existed as of the date of the Optionee's death and which have not theretofore
been exercised. Notwithstanding anything to the contrary set forth herein, the
Schedule A, GRANT #1
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right of the Optionee's Personal Representative to exercise such Option
hereunder shall terminate upon the earlier of the date which is (a) the last day
of the term of such Option, or (b) the first anniversary of the date of the
Optionee's death.
Dissolution, Liquidation and Certain Mergers. Upon the
dissolution or liquidation of the Company the Option shall terminate. Unless
the surviving corporation assumes the Option, upon the occurrence of a merger
or consolidation in which the Company is not the surviving corporation the
Option shall terminate.
VESTING SCHEDULE:
Vesting and Exercise Dates. The Optionee shall be entitled to
exercise the Option with respect to the number of Shares specified below on or
after the respective times specified below:
NUMBER OF SHARES CUMULATIVE NUMBER OF
WITH RESPECT TO WHICH SHARES WITH RESPECT TO DATE BEGINNING ON
THE OPTION MAY BE WHICH THE OPTION MAY BE WHICH THE OPTION MAY BE
EXERCISED EXERCISED EXERCISED
--------------------- ----------------------- ------------------------
20% of Shares subject 20% of Shares subject First anniversary of date
to the Option to the Option of grant of the Option
20% of Shares subject 40% of Shares subject Second anniversary of
to the Option to the Option date of grant of the Option
20% of Shares subject 60% of Shares subject Third anniversary of date
to the Option to the Option of grant of the Option
20% of Shares subject 80% of Shares subject Fourth anniversary of date
to the Option to the Option of grant of the Option
20% of Shares subject 100% of Shares subject Fifth anniversary of date
to the Option to the Option of grant of the Option
To the extent that the Option becomes exercisable with respect to any Shares, as
provided above, such Option may be exercised by the Optionee only as to all of
the Shares for which such Option is then exercisable at any time or from time to
time prior to the expiration of such Option.
NATURE OF OPTION:
The Option shall be an incentive stock option as defined in
Section 422 of the Code.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer, and the Optionee has
hereunto set his hand, all as of the date first above written.
Schedule A, GRANT # 1 Page 2 of 3
XXXXXX SOFTWARE, INC. OPTIONEE
By_______________________________ ____________________________
IT'S____________________________
Schedule A, GRANT # 1 Page 3 of 3
EXHIBIT "A" TO STOCK OPTION AGREEMENT
XXXXXX SOFTWARE, INC.
Notice of Exercise of Option
President
Xxxxxx Software, Inc.
The Bridge Building, A-10
00000 Xxxx Xxxx
Xxxxx Xxxxx, Xxxx 00000
The undersigned hereby exercises an Incentive Stock Option to
purchase___________________ common shares, without par value (the "Shares"), of
Xxxxxx Software, Inc. at a price of $________ per share. A check in the amount
of $____________________ is attached hereto.
The undersigned hereby represents and warrants that the Shares which
are being acquired by virtue of this Exercise of Option shall be acquired for
investment purposes only and not with a view to distribution or resale.
____________________________
[OPTIONEE NAME HERE]
Date:______________________
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EXHIBIT "B" TO STOCK OPTION AGREEMENT
TRANSFER RESTRICTIONS IN CODE OF REGULATIONS
Paragraph 2.09 Restrictions on Transfer of Shares
In the event that any shareholder or his representative desires to sell all or
any part of his shareholdings in the Corporation he shall first offer in writing
such shares for sale to the Corporation at the same price and upon the same
terms offered to him pursuant to a bona fide written offer that is acceptable to
him. The Corporation shall have the option for 30 days after receipt of such
written offer to accept such offer. If, within such 30-day period, the
Corporation fails to accept such offer, that option to so purchase such shares
shall terminate. Upon termination of the Corporation's option, any shareholder
or his representative may sell the offered shares during the following fifteen
(15) days at the same price and terms as when offered to Corporation, and, if
not so sold, the transfer restriction shall again apply. Any purchaser of said
shares shall take such shares subject to this Paragraph 2.09 transfer
restriction. Notwithstanding the foregoing, this Paragraph 2.09 shall not apply
to the transfer by sale, gift (inter vivos or by Will) of shares to a present
shareholder or to the spouse or children of a shareholder.
In the event of the death of any shareholder, the Executor or Administrator of
the estate of the shareholder or the beneficiary of the shareholder who has been
distributed the shares, shall be deemed to be the representative of the
shareholder hereunder, and shall be subject to the restrictions on
transferability in accordance with this Section. An appropriate provision shall
appear on all certificates for shares of the Corporation sufficient to give due
notice of the aforesaid restrictions on transferability.
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EXHIBIT "C" TO STOCK OPTION AGREEMENT
CALL OPTION AGREEMENT
THIS CALL OPTION AGREEMENT (the "Agreement"), entered into as of this
15th. day of September, 1999, by and between Xxxxxx Software, Inc., an Ohio
corporation (the "Company"), and [OPTIONEE NAME HERE] (the "Shareholder").
WITNESSETH:
WHEREAS, the Shareholder has been granted a stock option to acquire
common shares, without par value, of the Company (the "Shares"); and
WHEREAS, as a condition precedent to the exercise of such stock option
and the issuance of certificates evidencing such Shares, the Shareholder has
agreed to execute and deliver this Agreement to the Company for the purpose of
granting to the Company a call option on the Shares which will be exercisable
under certain circumstances as provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises of this
Agreement and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Company and the Shareholder hereby agree as
follows:
1. Company's Option to Purchase Upon Death or Termination of
Employment of the Shareholder For Cause. In the event of (a) the Shareholder's
death, or (b) the termination of the Shareholder's employment with the Company
by the Company for cause (as hereinafter defined) (regardless of any continuing
obligation of the Company to pay compensation to the Shareholder), the Company
shall have the option, but not the obligation, to purchase from the Shareholder
or, in the case of the Shareholder's death, his estate, legal representatives or
heirs (the "Shareholder's Successor(s)") all, but not less than all, of the
Shares owned by the Shareholder or Shareholder's Successor(s). To exercise this
option, the Company must give written notice to the Shareholder or Shareholder's
Successor(s) within thirty (30) days after (1) the date of the appointment of
the legal representative of the Shareholder's estate, in the case of the
Shareholder's death, or (2) the effective date of termination of employment, in
the case of termination of the Shareholder's employment by the Company for
cause.
For purposes of this Agreement, "cause" for the termination by the
Company of the Shareholder's employment means the Shareholder's (a) commission
of any misdemeanor or felony against the Company, (b) breach of any
confidentiality obligation or noncompetition covenant for the benefit of the
Company, or (c) repeated failure to satisfactorily perform his or her duties and
responsibilities as an employee of the Company, as determined by a majority of
the Board of Directors.
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2. Purchase Price. The price per share at which the Company shall
purchase Shares pursuant to this Section 1 shall be the Per Share Appraisal
Price. The "Per Share Appraisal Price" means the fair market value of a Share,
based upon a determination of the value of the Company as a going concern. Such
determination shall not take into consideration, in valuing the Company as a
going concern, the proceeds of any key-man life insurance policies maintained by
the Company with respect to any of its officers, directors or shareholders. The
Per Share Appraisal Price shall be determined as of the end of the last fiscal
month preceding the month in which the event giving rise to the need to
determine such price occurs, as follows. Within ten (10) days after written
notice of the event giving rise to the need to determine such price, the Company
(acting by a majority of its Board of Directors) and the Shareholder or
Shareholder's Successor(s) shall use their best efforts to agree on a Per Share
Appraisal Price. If they fail to agree, then, not later than the twentieth
(20th) day following the date of the notice in the preceding sentence, the
Company and the Shareholder or Shareholder's Successor(s) shall jointly select a
mutually acceptable independent appraiser who shall determine the Per Share
Appraisal Price. If they fail to agree on an appraiser, then, on the final day
of said twenty (20) day period, the Shareholder or Shareholder's Successor(s)
and the Company shall each notify the other of the identity of an independent
appraiser satisfactory to them. They each shall instruct the appraisers selected
by them to agree upon a third appraiser within five (5) business days after the
end of said twenty (20) day period, which third appraiser shall be selected from
lists of appraisers provided by the Company and the Shareholder or Shareholder's
Successor(s). The third appraiser shall thereupon be retained to determine the
Per Share Appraisal Price. The decision of the appraiser determining the Per
Share Appraisal Price shall be final and binding upon the Company and the
Shareholder or Shareholder's Successor(s), and the expenses of such appraiser
shall be borne by the Company. The Shareholder or Shareholder's Successor(s) and
the Company shall cooperate fully with the appraiser appointed hereunder and
shall fully disclose any and all information (including, without limitation, any
business plans or forecasts of the Company) which is or may be material to the
valuation of the Company as a going concern.
3. Payment of Purchase Price; Closing. The aggregate purchase
price for the Shares shall be paid by the Company to the Shareholder or
Shareholder's Successor(s) as follows:
(a) if the Company is purchasing the Shares by reason of the death
of the Shareholder, the Company shall collect the proceeds of
any life insurance policies on the life of the Shareholder
maintained by and payable to the Company and shall, at the
consummation of such purchase and sale, pay to the
Shareholder's Successor(s) so much of such proceeds as does
not exceed the aggregate purchase price for the Shares owned
thereby;
(b) if the Company is purchasing the Shares by reason of the
termination of the Shareholder's employment by the Company for
cause, the Company shall, at the consummation of such purchase
and sale, pay to the
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Shareholder an amount in cash equal to twenty percent (20%) of
the aggregate purchase price for the Shares owned thereby; and
(c) if the amount paid under paragraph (a) above should be less
than the aggregate purchase price for the Shares being
purchased and sold as described therein, and in the case of
any purchase and sale described in paragraph (b), the Company
shall execute and deliver to the Shareholder or Shareholder's
Successor(s) promissory note(s) in principal amount equal to
the balance of the aggregate purchase price for the Shares
being purchased and sold, which shall provide for the payment
of five (5) successive equal annual installments of principal,
together with interest on the unpaid principal balance at the
rate of eight percent (8%) per annum, and otherwise in the
form of the promissory note attached hereto as Exhibit A.
The consummation of a purchase and sale pursuant to this Agreement
shall occur not later than sixty (60) days following the Shareholder's or
Shareholder's Successor(s)' receipt of the written notice from the Company
provided for above. On or prior to the date so specified, and concurrently with
the delivery by the Company of the cash and the promissory note as provided
above, the Shareholder or Shareholder's Successor(s) shall deliver to the
Company (1) the certificates evidencing the Shares, which certificates shall be
duly endorsed in blank or with blank stock powers attached, with signatures
guaranteed and otherwise in proper form for transfer to the Company, and (2)
written representations and warranties to the effect that: (A) the Shareholder
or Shareholder's Successor(s) is the record and beneficial owner of the Shares
being purchased and sold, has good and marketable title thereto and the absolute
right to transfer the same to the Company, and the same, upon transfer to the
Company, will be free and clear of all adverse claims (other than restrictions
imposed by the Company's Code of Regulations and restrictions relative to
transfer under federal and state securities laws); (B) the Shareholder or
Shareholder's Successor(s) has full power and capacity to perform the terms of
this Agreement relating to such purchase and sale; and (C) the transfer of the
Shares by the Shareholder or Shareholder's Successor(s) as contemplated by this
Agreement is not subject to the consent or approval of any governmental
authority, court or third person other than those which have already been
obtained.
4. Amounts Owed by Shareholder. Notwithstanding anything to the
contrary contained in this Agreement, any amounts otherwise owed by the
Shareholder to the Company at the time of any purchase hereunder by the Company
from the Shareholder or Shareholder's Successor(s) shall be set off, first,
against any cash payments by the Company to the Shareholder or Shareholder's
Successor(s) and, next, against the principal amount of any promissory note
issued by the Company to the Shareholder or Shareholder's Successor(s).
5. Compliance with Laws of Ohio. Any purchase of Shares under
this Agreement shall be subject to the laws of the State of Ohio. Except for
acts which
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would violate this Agreement or the Company's Articles of Incorporation, the
Shareholder agrees to do any and all things that he or she may legally do as a
shareholder that may be necessary or advisable to enable this Agreement to be
carried out by the Company, including a change in the Company's capital.
6. Restrictive Endorsements.
(a) Placing Restrictive Endorsements on Certificates. The
certificates representing any Shares held by the Shareholder now or in the
future during the term of this Agreement shall bear the following legend, in
addition to any other legends required by law:
The securities represented by this certificate are subject to a Call
Option Agreement (the "Agreement") dated______________,______among the
Company and the Shareholder, a copy of which has been entered in the
record of minutes of the proceedings of the Board of Directors of the
Company. These securities are subject to certain options of the Company
upon the occurrence of certain events affecting the Shareholder, which
options are binding upon any successor holder or assignee of all or any
of these securities. A copy of the Call Option Agreement will be
forwarded to the registered holder of this certificate not later than
five (5) days following the receipt by the Secretary of the Company of
a written request therefor.
(b) Removal of Restrictive Endorsements. If for any reason any of
the Shares are no longer subject to the restrictions and provisions hereof, the
Company shall promptly issue, execute and deliver a new certificate or
certificates for such Shares without such legend upon the request of the holder
thereof and the surrender to the Company of the certificate or certificates
containing such legend.
7. Transfer of Shares by Company. The Shareholder hereby
authorizes and directs the Company not to make any transfer of record of any of
the Shares subject to this Agreement unless the transferor and transferee have
complied with the requirements of Section 11-c below.
8. Insurance. The Company may, in the discretion of the Board of
Directors, insure the life of the Shareholder for such amounts as it may deem
necessary or advisable to enable it to implement the foregoing provisions. The
Company may name itself as the beneficiary of such policies of insurance and
shall pay all premiums thereon. The Shareholder agrees to submit to any
examination which may be requested for the purpose of obtaining such policies of
insurance. The Company shall be the sole owner of such policies of insurance.
9. Termination of this Agreement. This Agreement shall remain in
effect until terminated by the mutual written consent of the Shareholder and the
Company or by cessation of the Company's business and winding up of its affairs.
Upon termination of this Agreement, the Shareholder shall surrender the
certificate or certificates
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representing the Shares owned of record by him or her to the Company, and the
Company shall issue a new certificate or certificates in lieu thereof for an
equal number of Shares without the restrictive endorsement referred to herein.
10. Notices. All notices, requests, consents, demands and other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be sufficient in all respects if personally delivered, sent
by facsimile or sent by certified mail, with postage fully prepaid, addressed to
the party to whom such notice or other communication is directed at the last
known address for such party as set forth on the records of the Company.
11. Miscellaneous.
(a) Agreement Applicable to All Shares Owned by Shareholder. In
addition to the application of this Agreement to all Shares owned of record or
beneficially by the Shareholder, all of the terms and provisions of this
Agreement shall apply to all shares of the Company of any class now or hereafter
owned by the Shareholder, and such Shareholder shall hold all such shares
subject to the terms of this Agreement.
(b) Amendment. This Agreement may be amended only by the mutual
written consent of the Company and the Shareholder.
(c) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Shareholder and his estate, heirs at law, legatees,
distributees, executors, administrators, other personal representatives,
successors and permitted assigns, and shall be binding upon and inure to the
benefit of the Company and its successors and assigns. The Shareholder
acknowledges and agrees that it is the intent and purpose of this Agreement that
the provisions of this Agreement will be binding upon any transferees of any of
the Shares. Accordingly, the Shareholder agrees that he or she will not sell or
otherwise transfer any of the Shares unless and until the transferee(s) shall
have agreed to acquire and hold such Shares subject to the provisions of this
Agreement by executing a written instrument in form and content acceptable to
the Company in which such transferee(s) acknowledges and agrees to be bound by
this Agreement.
(d) Governing Law; Severability. This Agreement is intended to be
governed by and performed in accordance with, and only to the extent permitted
by, the laws of the State of Ohio applicable to contracts made and to be
performed entirely within such State. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
(e) Entire Agreement. This Agreement sets forth the entire
understanding and agreement of the parties hereto concerning the subject matter
hereof. No
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representation, promise, inducement or statement of intention has been made by
or on behalf of any party hereto concerning the subject matter hereof which is
not set forth in this Agreement.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
personally or by their duly authorized officers as of the date first above
written.
XXXXXX SOFTWARE, INC. OPTIONEE
By____________________________ _____________________________
It's__________________________
Date:________________________
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