1998-OP5/A
Xxxxxxxxx X. Xxxxx
Optionee
THIS AGREEMENT SUPERSEDES AND RENDERS NULL AND VOID A PRIOR INCENTIVE STOCK
OPTION AGREEMENT BETWEEN THE PARTIES MADE AS OF DECEMBER 8, 1998.
VDC COMMUNICATIONS, INC.
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INCENTIVE STOCK OPTION AGREEMENT
UNDER THE VDC COMMUNICATIONS, INC.
1998 STOCK INCENTIVE PLAN, AS AMENDED (THE "PLAN")
This Agreement is made as of October 1, 1999, (the "Grant Date") by and
between VDC Communications, Inc., a Delaware corporation (the "Corporation") and
Xxxxxxxxx X. Xxxxx (the "Optionee").
WHEREAS, Optionee is an employee of the Corporation or one of its
subsidiaries and the Corporation, in December 1998, considered it desirable and
in its best interest that Optionee be given an inducement to acquire a
proprietary interest in the Corporation and an incentive to advance the
interests of the Corporation and granted the Optionee an option to purchase
shares of common stock of the Corporation (the "Common Stock"); and
WHEREAS, the parties entered into an Incentive Stock Option Agreement
dated December 8, 1998 (the "December Option Agreement") representing an option
to purchase 200,000 shares of Corporation Common Stock (the "December Option");
WHEREAS, the Board of Directors of the Corporation has repriced the per
share exercise price for the shares subject to the December Option; and
WHEREAS, the parties wish to enter into a new agreement that reflects
the new exercise price, and supersedes and renders null and void the December
Option Agreement and the December Option.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree that as of the Grant Date, the Corporation hereby grants Optionee
an option to purchase from it, upon the terms and conditions set forth in the
Plan (a copy of which is attached hereto) and this Agreement, that number of
shares of the authorized and unissued Common Stock of the Corporation as is set
forth on Schedule A hereto.
1. Terms of Stock Option. The option to purchase Common Stock granted
herein is subject to the terms, conditions, and covenants set forth in the Plan
as well as the following:
(a) This option shall constitute an Incentive Stock Option
which is intended to qualify under Section 422 of the
Internal Revenue Code of 1986, as amended;
(b) The per share exercise price for the shares subject to
this option shall be higher than 110% of the Fair
Market Value (as defined in the Plan) of the Common
Stock on the Grant Date, which exercise price is set
forth on Schedule A hereto;
(c) This option shall vest in accordance with the vesting
schedule set forth on Schedule A hereto; and
(d) No portion of this option may be exercised more than
five (5) years from December 8, 1998.
2. Payment of Exercise Price. The option may be exercised, in part or
in whole, only by written request to the Corporation accompanied by payment of
the exercise price in full either: (i) in cash for the shares with respect to
which it is exercised; (ii) by delivering to the Corporation a notice of
exercise with an irrevocable direction to a broker-dealer registered under the
Securities Exchange Act of 1934, as amended, to sell a sufficient portion of the
shares and deliver the sale proceeds directly to the Corporation to pay the
exercise price; (iii) in the discretion of the Plan Administrator, through the
delivery to the Corporation of previously-owned shares of Common Stock having an
aggregate Fair Market Value equal to the option exercise price of the shares
being purchased pursuant to the exercise of the Option; provided, however, that
shares of Common Stock delivered in payment of the option price must have been
held by the Optionee for at least six (6) months in order to be utilized to pay
the option price; (iv) in the discretion of the Plan Administrator, through an
election to have shares of Common Stock otherwise issuable to the Optionee
withheld to pay the exercise price of such Option; or (v) in the discretion of
the Plan Administrator, through any combination of the payment procedures set
forth in Subsections (i) - (iv) of this paragraph.
3. Miscellaneous.
(a) This Agreement and the option represented hereby may
not be assigned or transferred in any manner except
by will or by the laws of descent and distribution.
(b) This Agreement will be governed and interpreted in
accordance with the laws of the State of Connecticut,
and may be executed in more than one counterpart,
each of which shall constitute an original document.
(c) No alterations, amendments, changes or additions to
this agreement will be binding upon either the
Corporation or Optionee unless reduced to writing and
signed by both parties.
(d) All controversies or claims arising out of this
Agreement shall be determined by binding arbitration,
conducted at the Corporation's offices in Greenwich,
Connecticut, or at such other location designated by
the Corporation, before the American Arbitration
Association (the "AAA").
(e) No rule of construction requiring interpretation
against the drafting party shall apply to the
interpretation of this Agreement.
(f) This Agreement supersedes and renders null and void
the December Option Agreement and the December
Option.
(g) The recitals to this Agreement constitute a part of
this Agreement.
(h) If any provision of this Agreement is held to be
invalid, the remaining provisions shall remain in
full force and effect.
In witness whereof, the parties have executed this Agreement as of the
Grant Date.
CORPORATION:
VDC COMMUNICATIONS, INC.
By:/s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
Chief Executive Officer
OPTIONEE:
/s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxx
Optionee
SCHEDULE A
1. Grant Date: October 1, 1999
2. Number of Shares of Common Stock covered by the Option: 200,000
3. Exercise Price (higher than 110% of Fair Market Value of Common Stock on the
Grant Date): $1.38
4. The Option shall vest in accordance with the following schedule:
(i) 40,000 shares shall vest on December 8, 1999, provided
Optionee remains continuously employed by the Corporation from
December 8, 1998 through December 7, 1999;
(ii) 40,000 shares shall vest on December 8, 2000, provided
Optionee remains continuously employed by the Corporation from
December 8, 1998 through December 7, 2000;
(iii) 40,000 shares shall vest on December 8, 2001, provided
Optionee remains continuously employed by the Corporation from
December 8, 1998 through December 7, 2001;
(iv) 40,000 shares shall vest on December 8, 2002, provided
Optionee remains continuously employed by the Corporation from
December 8, 1998 through December 7, 2002; and
(v) 40,000 shares shall vest on December 8, 2003, provided
Optionee remains continuously employed by the Corporation from
December 8, 1998 through December 7, 2003.
