EXHIBIT 1.5
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR THE SECURITY
REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered into as of
the date of grant set forth below ("Date of Grant") by and between Accesspoint
Corporation, a Nevada corporation ("Company"), and the optionee named below
("Optionee") as contemplated in the Company's 1999 Stock Incentive Plan
("Plan"). Capitalized terms not defined herein shall have the meaning ascribed
to them in the Plan.
Optionee: Xxxxxxx X. Xxxxxxx
Social Security Number: ###-##-####
Address: 00000 Xxx Xx Xxxxxx, #000, Xxxxxxxx Xxxxx, XX 00000
Total Option Shares: 2,000
Exercise Price Per Share: 4.75
Date of Grant: May 2nd, 2000
First Vesting Date: See Section 3
Expiration Date for Exercise of Options: May 2nd, 2005
Type of Stock Option:
(Check one): [X] Incentive Stock Option [ ] Statutory Stock Option
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1. Grant of Option. The Company hereby grants to Optionee an option (the
"Option") to purchase the total number of shares of Common Stock of the
Company set forth above (the "Shares") at the Exercise Price Per Share set
forth above (the "Exercise Price"), subject to all of the terms and
conditions of this Agreement and the Plan. If designated as an Incentive
Stock Option above, the Option is intended to qualify as an "incentive
stock option" ("ISO") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). Only Employees of the
Company shall receive ISOs. This Agreement shall be deemed a Grant
Agreement as defined in the Plan. The terms and conditions of the Plan are
incorporated herein by this reference.
2. Exercise Price. The Exercise Price, is not less than the fair market value
per share of Common Stock on the date of grant, as determined by the Board;
provided, however, in the event Optionee is an Employee and owns stock
representing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or of its Parent or Subsidiary
corporations immediately before this Option is granted, said exercise price
is not less than one hundred ten percent (110%) of the fair market value
per share of Common Stock on the date of grant as determined by the Board.
3. Exercise of Option. This Option shall be exercisable during its term in
accordance with the provisions of Section 8 of the Plan as follows:
(i) Vesting:
(a) This Option shall not become exercisable as to any of the
number of the Shares until the date that is one (1) year
from the date of grant of the Option (the "Anniversary
Date"). On the Anniversary Date, this Option may be
exercised to the extent of 33% of the Shares. Upon the
expiration of each calendar month from the Anniversary Date,
this Option may be exercised to the extent of the product of
(a) the total number of Shares set forth at the beginning of
this Agreement and (b) the fraction the numerator of which
is one (1) and the denominator of which is thirty-six (36)
(the "Monthly Vesting Amount"), plus the shares as to which
the right to exercise the Option has previously accrued but
has not been exercised; provided, however, that
notwithstanding any of the above, the 33% exercisable on the
Anniversary Date and the Monthly Vesting Amount with respect
to any calendar month shall become exercisable only if the
Employee or Consultant was an employee or consultant, as
applicable, of the Company or any Subsidiary of the Company
as of the Anniversary Date and the last day of such month,
respectively. Any time that the Optionee is on leave or is
absent from performing services for the Company shall not be
counted towards the vesting provided herein.
(b) This Option may not be exercised for a fraction of a Share.
(c) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option
is governed by Sections 7, 8
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and 9 below, subject to the limitations contained in
subsection 3(i)(d).
(d) In no event may this Option be exercised after the date of
expiration of the term of this Option as set forth in
Section 11 below.
(ii) Method of Exercise. This Option shall be exercisable by written
notice which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being
exercised, and such other representations and agreements as to
the holder's investment intent with respect to such shares of
Common Stock as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by
Optionee and shall be delivered in person or by certified mail
to the President, Secretary or Chief Financial Officer of the
Company. The written notice shall be accompanied by payment of
the exercise price.
No Shares will be issued pursuant to the exercise of an Option
unless such issuance and such exercise shall comply with all
relevant provisions of law and the requirements of any stock
exchange upon which the Shares may then be listed. Assuming such
compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which the
Option is exercised with respect to such Shares.
(iii) Adjustments, Merger, etc. The number and class of the Shares
and/or the exercise price specified above are subject to
appropriate adjustment in the event of changes in the capital
stock of the Company by reason of stock dividends, split-ups or
combinations of shares, reclassifications, mergers,
consolidations, reorganizations or liquidations. Subject to any
required action of the stockholders of the Company, if the
Company shall be the surviving corporation in any merger or
consolidation, this Option (to the extent that it is still
outstanding) shall pertain to and apply to the securities to
which a holder of the same number of shares of Common Stock that
are then subject to this Option would have been entitled. A
dissolution or liquidation of the Company, or a merger or
consolidation in which the Company is not the surviving
corporation, will cause this Option to terminate, unless the
agreement or merger or consolidation shall otherwise provide,
provided that the Optionee shall, if the Board expressly
authorizes, in such event have the right immediately prior to
such dissolution or liquidation, or merger or consolidation, to
exercise this Option in whole or part. To the extent that the
foregoing adjustments relate to stock or securities of the
Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and
conclusive.
4. Optionee's Representations. By receipt of this Option, by its execution,
and by its exercise in whole or in part, Optionee represents to the Company
that Optionee understands that:
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(i) both this Option and any Shares purchased upon its exercise are
securities, the issuance by the Company of which requires compliance
with federal and state securities laws;
(ii) these securities are made available to Optionee only on the condition
that Optionee makes the representations contained in this Section 4
to the Company;
(iii) Optionee has made a reasonable investigation of the affairs of the
Company sufficient to be well informed as to the rights and the value
of these securities;
(iv) Optionee understands that the securities have not been registered
under the Securities Act of 1933, as amended (the "Act") in reliance
upon one or more specific exemptions contained in the Act, which may
include reliance on Rule 701 promulgated under the Act, if available,
or which may depend upon (a) Optionee's bona fide investment
intention in acquiring these securities; (b) Optionee's intention to
hold these securities in compliance with federal and state securities
laws; (c) Optionee having no present intention of selling or
transferring any part thereof (recognizing that the Option is not
transferable) in violation of applicable federal and state securities
laws; and (d) there being certain restrictions on transfer of the
Shares subject to the Option;
(v) Optionee understands that the Shares subject to this Option, in
addition to other restrictions on transfer, must be held indefinitely
unless subsequently registered under the Act, or unless an exemption
from registration is available; that Rule 144, the usual exemption
from registration, is only available after the satisfaction of
certain holding periods and in the presence of a public market for
the Shares; that there is no certainty that a public market for the
Shares will exist, and that otherwise it will be necessary that the
Shares be sold pursuant to another exemption from registration which
may be difficult to satisfy; and
(vi) Optionee understands that the certificate representing the Shares
will bear a legend prohibiting their transfer in the absence of their
registration or the opinion of counsel for the Company that
registration is not required, and a legend prohibiting their transfer
in compliance with applicable state securities laws unless otherwise
exempted.
5. Method of Payment. Payment of the purchase price shall be made by cash,
check or, in the sole discretion of the Board at the time of exercise,
promissory notes or other Shares of Common Stock having a fair market value
on the date of surrender equal to the aggregate purchase price of the
Shares being purchased.
6. Restrictions on Exercise. This Option may not be exercised if the issuance
of such Shares upon such exercise or the method of payment of consideration
for such Shares would constitute a violation of any applicable federal or
state securities or other law or regulation. As a condition to the exercise
of this Option, the Company may require Optionee to make any representation
and warranty to the Company as may be required by any
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applicable law or regulation.
7. Termination of Status as an Employee or Consultant. In the event of
termination of Optionee's Continuous Status as an Employee or Consultant
for any reason other than death or disability, Optionee may, but only
within thirty (45) days after the date of such termination (but in no event
later than the date of expiration of the term of this Option as set forth
in Section 11 below), exercise this Option to the extent that Optionee was
entitled to exercise it at the date of such termination. To the extent that
Optionee was not entitled to exercise this Option at the date of such
termination, or if Optionee does not exercise this Option within the time
specified herein, this Option shall terminate.
Disability of Optionee. In the event of termination of Optionee's
Continuous Status as an Employee or Consultant as a result of Optionee's
disability, Optionee may, but only within six (6) months from the date of
termination of employment or consulting relationship (but in no event later
than the date of expiration of the term of this Option as set forth in
Section 11 below), exercise this Option to the extent Optionee was entitled
to exercise it at the date of such termination; provided, however that if
the disability is not total and permanent (as defined in Section 22(e)(3)
of the Code) and the Optionee exercises the option within the period
provided above but more than three months after the date of termination,
this Option shall automatically be deemed to be a Nonstatutory Stock Option
and not an Incentive Stock Option; and provided, further, that if the
disability is total and permanent (as defined in Section 22(e)(3) of the
Code), then the Optionee may, but only within one (1) year from the date of
termination of employment or consulting relationship (but in no event later
than the date of expiration of the term of this Option as set forth in
Section 11 below), exercise this Option to the extent Optionee was entitled
to exercise it at the date of such termination. To the extent that Optionee
was not entitled to exercise this Option at the date of termination, or if
Optionee does not exercise such Option (which Optionee was entitled to
exercise) within the time periods specified herein, this Option shall
terminate.
9. Death of Optionee. In the event of the death of Optionee:
(i) during the term of this Option while an Employee or Consultant of the
Company and having been in Continuous Status as an Employee or
Consultant since the date of grant of this Option, this Option may be
exercised, at any time within one (1) year following the date of death
(but, in the case of an Incentive Stock Option, in no event later than
the date of expiration of the term of this Option as set forth in
Section 11 below), by Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only
to the extent of the right to exercise that had accrued at the time of
death of the Optionee. To the extent that such Employee or Consultant
was not entitled to exercise the Option at the date of death, or if
such Employee, Consultant, estate or other person does not exercise
such Option (which such Employee, Consultant, estate or person was
entitled to exercise) within the one (1) year time period specified
herein, the Option shall terminate; or
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(ii) during the thirty (30) day period specified in Section 7 or the one
(1) year period specified in Section 8, after the termination of
Optionee's Continuous Status as an Employee or Consultant, this Option
may be exercised, at any time within one (1) year following the date
of death (but, in the case of an Incentive Stock Option, in no event
later than the date of expiration of the term of this Option as set
forth in Section 11 below), by Optionee's estate or by a person who
acquired the right to exercise this Option by bequest or inheritance,
but only to the extent of the right to exercise that had accrued at
the date of termination. To the extent that such Employee or
Consultant was not entitled to exercise this Option at the date of
death, or if such Employee, Consultant, estate or other person does
not exercise such Option (which such Employee, Consultant, estate or
person was entitled to exercise) within the one (1) year time period
specified herein, this Option shall terminate.
10. Non-Transferability of Option. This Option may not be transferred in any
manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee, only by Optionee. The
terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of Optionee.
11. Term of Option. This Option may not be exercised more than five (5) years
from the date of grant of this Option, and may be exercised during such
term only in accordance with the Plan and terms of this Option; provided,
however, that the term of this option, if it is a Nonstatutory Stock
Option, may be extended for the period set forth in Section 9(i) or Section
9(ii) in the circumstances set forth in such Sections.
12. Early Disposition of Stock; Taxation Upon Exercise of Option. If Optionee
is an Employee and the Option qualifies as an ISO, Optionee understands
that, if Optionee disposes of any Shares received under this Option within
two (2) years after the date of this Agreement or within one (1) year after
such Shares were transferred to Optionee, Optionee will be treated for
federal income tax purposes as having received ordinary income at the time
of such disposition in any amount generally measured as the difference
between the price paid for the Shares and the lower of the fair market
value of the Shares at the date of exercise or the fair market value of the
Shares at the of disposition. Any gain recognized on such premature sale of
the Shares in excess of the amount treated as ordinary income will be
characterized as capital gain. Optionee hereby agrees to notify the Company
in writing within thirty (30) days after the date of any such disposition.
Optionee understands that if Optionee disposes of such Shares at any time
after the expiration of such two-year and one-year holding periods, any
gain on such sale will be treated as long-term capital gain laws subject to
meeting various qualifications. If Optionee is a Consultant or this is a
Nonstatutory Stock Option, Optionee understands that, upon exercise of this
Option, Optionee will recognize income for tax purposes in an amount equal
to the excess of the then fair market value of the Shares over the exercise
price. Upon a resale of such shares by the Optionee, any difference
between the sale price and the fair market value of the Shares on the date
of exercise of the Option will be treated as capital gain or loss. Optionee
understands that the Company will be required to withhold tax from
Optionee's current compensation in some of the circumstances
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described above; to the extent that Optionee's current compensation is
insufficient to satisfy the withholding tax liability, the Company may
require the Optionee to make a cash payment to cover such liability as a
condition to exercise of this Option.
13. Tax Consequences. The Optionee understands that any of the foregoing
references to taxation are based on federal income tax laws and regulations
now in effect, and may not be applicable to the Optionee under certain
circumstances. The Optionee may also have adverse tax consequences under
state or local law. The Optionee has reviewed with the Optionee's own tax
advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. The Optionee is relying solely
on such advisors and not on any statements or representations of the
Company or any of its agents. The Optionee understands that the Optionee
(and not the Company) shall be responsible for the Optionee's own tax
liability that may arise as a result of the transactions contemplated by
this Agreement.
14. Severability; Construction. In the event that any provision in this Option
shall be invalid or unenforceable, such provision shall be severable from,
and such invalidity or unenforceability shall not be construed to have any
effect on, the remaining provisions of this Option. This Option shall be
construed as to its fair meaning and not for or against either party.
15. Damages. The parties agree that any violation of this Option (other than a
default in the payment of money) cannot be compensated for by damages, and
any aggrieved party shall have the right, and is hereby granted the
privilege, of obtaining specific performance of this Option in any court of
competent jurisdiction in the event of any breach hereunder.
16. Governing Law. This Option shall be deemed to be made under and governed by
and construed in accordance with the laws of the State of California
Jurisdiction for any disputes hereunder shall be solely in Orange County,
California.
17. Delay. No delay or failure on the part of the Company or the Optionee in
the exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise by any of them of any
right, power or remedy preclude other or further exercise thereof, or the
exercise of any other right, power or remedy.
18. Restrictions. Notwithstanding anything herein to the contrary, Optionee
understands and agrees that Optionee shall not dispose of any of the
Shares, whether by sale, exchange, assignment, transfer, gift, devise,
bequest, mortgage, pledge, encumbrance or otherwise, except in accordance
with the terms and conditions of this Section 18, and Optionee shall not
take or omit any action which will impair the absolute and unrestricted
right, power, authority and capacity of Optionee to sell Shares in
accordance with the terms and conditions hereof.
Any purported transfer of Shares by Optionee that violates any provision of
this Section 18 shall be wholly void and ineffectual and shall give to the
Company or its designee the
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right to purchase from Optionee all but not less than all of the Shares
then owned by Optionee for a period of 90 days from the date the Company
first learns of the purported transfer at the Agreement Price and on the
Agreement Terms (as those terms are defined in subsections (vi) and (vii),
respectively, of this Section 18). If the Shares are not purchased by the
Company or its designee, the purported transfer thereof shall remain void
and ineffectual and they shall continue to be subject to this Agreement.
The Company shall not cause or permit the transfer of any Shares to be made
on its books except in accordance with the terms hereof.
(i) Permitted Transfers.
(a) Optionee may sell, assign or transfer any Shares held
by the Optionee but only by complying with the
provisions of subsection (iv) of this Section 18.
(b) Optionee may sell, assign or transfer any Shares held
by the Optionee without complying with the provisions
of subsection (iv) by obtaining the prior written
consent of the Company's shareholders owning 50% of the
then issued and outstanding shares of the Company's
Common Stock (determined on a fully diluted basis) or a
majority of the members of the Board of Directors of
the Company, provided that the transferee agrees in
writing to be bound by the provisions of this Option
and the transfer is made in accordance with any other
restrictions or conditions contained in the written
consent and in accordance with applicable federal and
state securities laws.
(c) Upon the death of Optionee, Shares held by the Optionee
may be transferred to the personal representative of
the Optionee's estate without complying with the
provisions of subsection (iv). Shares so transferred
shall be subject to the other provisions of this
Option, including in particular, and without
limitation, subsection (v).
(ii) No Pledge. Unless a majority of the members of the Board of
Directors consent, Shares may not be pledged, mortgaged or
otherwise encumbered to secure indebtedness for money borrowed
or any other obligation for which the Optionee is primarily or
secondarily liable.
(iii) Stock Certificate Legend. Each stock certificate for Shares
issued to the Optionee shall have conspicuously written,
printed, typed or stamped upon the face thereof, or upon the
reverse thereof with a conspicuous reference on the face
thereof, one or both of the following legends:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED IN THE ABSENCE OF
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REGISTRATION THEREUNDER OR AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT. SUCH SHARES MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF IN ANY MANNER EXCEPT
IN ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THE STOCK OPTION
AGREEMENT, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY. UNLESS A MAJORITY OF THE MEMBERS OF THE BOARD OF DIRECTORS
CONSENT, SUCH STOCK OPTION AGREEMENT PROHIBITS ANY PLEDGE, MORTGAGE OR
OTHER ENCUMBRANCE OF SUCH SHARES TO SECURE ANY OBLIGATION OF THE
HOLDER HEREOF. EVERY CREDITOR OF THE HOLDER HEREOF AND ANY PERSON
ACQUIRING OR PURPORTING TO ACQUIRE THIS CERTIFICATE OR THE SHARES
HEREBY EVIDENCED OR ANY INTEREST THEREIN IS HEREBY NOTIFIED OF THE
EXISTENCE OF SUCH STOCK OPTION AGREEMENT, AND ANY ACQUISITION OR
PURPORTED ACQUISITION OF THIS CERTIFICATE OR THE SHARES HEREBY
EVIDENCED OR ANY INTEREST THEREIN SHALL BE SUBJECT TO ALL RIGHTS AND
OBLIGATIONS OF THE PARTIES TO SUCH STOCK OPTION AGREEMENT AS THEREIN
SET FORTH.
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR
ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS
OF THE STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S
RULES.
(iv) Sales of Shares.
(a) Company's Right of First Refusal. In the event that the
Optionee shall desire to sell, assign or transfer any Shares
held by the Optionee to any other person (the "Offered
Shares") and shall be in receipt of a bona fide offer to
purchase the Offered Shares ("Offer"), the following
procedure shall apply. The Optionee shall give to the
Company written notice containing the terms and conditions
of the Offer, including, but not limited to (a) the number
of Offered Shares; (b) the price per Share; (c) the method
of payment; and (d) the name(s) of the proposed
purchaser(s).
An offer shall not be deemed bona fide unless the Optionee
has informed the prospective purchaser of the Optionee's
obligation under this Option and the prospective purchaser
has agreed to become a party hereunder and to be bound
hereby. The Company is entitled to take such steps as it
reasonably may deem necessary to determine the validity and
bona fide nature of the Offer.
Until 30 days after such notice is given, the Company or its
designee shall have the right to purchase all, but not less
than all, of the Offered Shares at the price offered by the
prospective purchaser and specified in such notice. Such
purchase shall be on the Agreement Terms, as defined in
subsection
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(vi).
Failure of Company or its Designee to Purchase Offered
Shares. If all of the Offered Shares are not purchased by
the Company and/or its designee within the 30-day period
granted for such purchases, then the Offered Shares may be
sold, assigned or transferred pursuant to the Offer;
provided, that the Offered Shares are so transferred within
30 days of the expiration of the 30-day period to the person
or persons named in, and under the terms and conditions of,
the bona fide Offer described in the notice to the Company;
and provided further, that such persons agree to execute and
deliver to the Company a written agreement, in form and
content satisfactory to the Company, agreeing to be bound by
the terms and conditions of this Option.
(v) Manner of Exercise. Any right to purchase hereunder shall be
exercised by giving written notice of election to the Optionee, the
Optionee's personal representative or any other selling person, as
the case may be, prior to the expiration of such right to purchase.
(vi) Agreement Price. The "Agreement Price" shall be the higher of (a)
the fair market value of the Shares to be purchased determined in
good faith by the Board of Directors of the Company and (b) the
original exercise price of the Shares to be purchased.
(vii) Agreement Terms. "Agreement Terms" shall mean and include the
following:
(a) Delivery of Shares and Closing Date. At the closing, the
Optionee, the Optionee's personal representative or such other
selling person, as the case may be, shall deliver certificates
representing the Shares, properly endorsed for transfer, and
with the necessary documentary and transfer tax stamps, if any,
affixed, to the purchaser of such Shares. Payment of the
purchase price therefor shall concurrently be made to the
Optionee, the Optionee's personal representative or such other
selling person, as provided in subsection (b) of this
subsection (vii). Such delivery and payment shall be made at
the principal office of the Company or at such other place as
the parties mutually agree.
(b) Payment of Purchase Price. The Company shall pay the purchase
price to the Optionee at the closing.
(viii) Right to Purchase Upon Certain Other Events. The Company or its
designee shall have the right to purchase all, but not less than
all, of the Shares held by the Optionee at the Agreement Price and
on the Agreement Terms for a period of 90 days after any of the
following events:
(a) an attempt by a creditor to levy upon or sell any of the
Optionee's Shares;
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(b) the filing of a petition by the Optionee under the U.S.
Bankruptcy Code or any insolvency laws;
(c) the filing of a petition against Optionee under any insolvency or
bankruptcy laws by any creditor of the Optionee if such petition
is not dismissed within 30 days of filing;
(d) the entry of a decree of divorce between the Optionee and the
Optionee's spouse; or the termination of Optionee's services as
an employee or consultant with the Company.
The Optionee shall provide the Company written notice of the
occurrence of any such event within 30 days of such event.
(ix) Termination. The provisions of this Section 18 shall terminate and all
rights of each such party hereunder shall cease except for those which
shall have theretofore accrued upon the occurrence of any of the
following events:
(a) cessation of the Company's business;
(b) bankruptcy, receivership or dissolution of the Company;
(c) ownership of all of the issued and outstanding shares of the
Company by a single shareholder of the Company;
(d) written consent or agreement of the shareholders of the Company
holding 50% of the then issued and outstanding shares of the
Company (determined on a fully diluted basis);
(e) consent or agreement of a majority of the members of the Board of
Directors of the Company; or
(f) registration of any class of equity securities of the Company
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended.
(x) Amendment. This Section 18 may be modified or amended in whole or in
part by a written instrument signed by shareholders of the Company
holding 50% of the outstanding shares of Common Stock (determined on a
fully diluted basis) or a majority of the members of the Board of
Directors of the Company.
19. Market Standoff. Unless the Board of Directors otherwise consents, Optionee
agrees hereby not to sell or otherwise transfer any Shares or other
securities of the Company during the 180-day period following the effective
date of a registration statement of the Company filed under the Act;
provided, however, that such restriction shall apply only to the first two
registration statements of the
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Company to become effective under the Act which includes securities to be
sold on behalf of the Company to the public in an underwritten public
offering under the Act. The Company may impose stop-transfer instructions
with respect to securities subject to the foregoing restrictions until the
end of such 180-day period.
20. Complete Agreement. This Agreement constitutes the entire agreement between
the parties with respect to its subject matter, and supersedes all other
prior or contemporaneous agreements and understandings both oral or
written; subject, however, that in the event of any conflict between this
Agreement and the Plan, the Plan shall govern. This Agreement may only be
amended in a writing signed by the Company and the Optionee.
21. Privileges of Stock Ownership. Participant shall not have any of the rights
of a shareholder with respect to any Shares until Optionee exercises the
Option and pay the Exercise Price.
22. Notices. Any notice required to be given or delivered to the Company under
the terms of this Agreement shall be in writing and addressed to the
Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Optionee shall be in writing
and addressed to Optionee at the address indicated above or to such other
address as such party may designate in writing from time to time to the
Company. All notices shall be deemed to have been given or delivered upon:
personal delivery; three (3) days after deposit in the United States mail
by certified or registered mail (return receipt requested); one (1)
business day after deposit with any return receipt express courier
(prepaid); or one (1) business day after transmission by facsimile.
Date of Grant: May 2nd, 2000 Accesspoint Corporation, a Nevada
Corporation
By: /s/ Xxx X. Xxxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxxx
Title: CEO
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO SECTION
3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE OR CONSULTANT AT
THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT THIS OPTION, THE COMPANY'S PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE,
THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH
HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT
AS AN EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL,
AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan, represents that Optionee is
familiar with the terms and provisions thereof, and hereby accepts this Option
subject to all of the terms and provisions thereof. Optionee has reviewed the
Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option and fully understands all
provisions of this Option. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board or of the
Committee upon any questions arising under the Plan.
OPTIONEE
Dated: May 2nd, 2000 By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Page 13 of 14
CONSENT OF SPOUSE
The undersigned spouse of the Optionee to the foregoing Stock Option Agreement
acknowledges on his or her own behalf that: I have read the foregoing Stock
Option Agreement and I know its contents. I hereby consent to and approve of the
provisions of the Stock Option Agreement, and agree that the Shares issued upon
exercise of the options covered thereby and my interest in them are subject to
the provisions of the Stock Option Agreement and that I will take no action at
any time to hinder operation of the Stock Option Agreement on those Shares or my
interest in them.
Dated: May 2nd, 2000 By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Page 14 of 14
