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EXHIBIT 4(i)
CORNICHE GROUP INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of February 15th, 2000, by and between Corniche
Group Incorporated, a Delaware corporation with its principal place of business
at 000 X. Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Company"), and
the undersigned (the "Optionee").
WITNESSETH:
WHEREAS, the Company considers it desirable and in its best interests
that the Optionee be encouraged to acquire an ownership interest in the Company,
and thereby have an added incentive to advance the interests of the Company, by
the grant of an option to purchase shares of the Company's common stock, par
value $.001 per share (the "Common Stock"), on the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Optionee hereby
agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Optionee, the right, privilege and
option (the "Option") to purchase 75,000 shares of the Company's Common Stock
(the "Shares") at the exercise prices $1.097 and 100,000 shares of the Company's
Common Stock (the "Shares") at the exercise prices $1.00 on the vesting terms
("Vesting Terms") set forth in Appendix A. Such number of Shares issuable upon
exercise of the Option shall be subject to adjustment as provided in Section 7
below.
2. TIME OF EXERCISE OF OPTION.
Subject to the provisions of Section 4 below, the Option shall vest as
provided in Appendix A, provided, however, that upon a Change in Control of the
Company (as defined in the Employment Agreement between the Company and the
Optionee dated June 26th, 2000), the Option shall be immediately exercisable.
To the extent the Option is not exercised by the Optionee when it becomes
exercisable, it shall continue in full force and effect until the Expiration
Date (as hereinafter defined).
3. METHOD OF EXERCISE.
The Option shall be exercised by written notice in the form of Appendix
B hereto directed to the Company at the Company's address set forth above, duly
executed by the Optionee, specifying the number of shares being purchased and
accompanied by either (i) cash or check payable to the order of the Company in
full payment of the Purchase Price for the
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number of Shares being purchased, or (ii) certificate(s), duly endorsed for
transfer to the Company with signature guaranteed, for that number of previously
acquired Shares having an aggregate fair market value as determined in
accordance with the Plan ("Fair Market Value"), on the date of exercise equal to
the full Purchase Price for the number of Shares being purchased, or (iii) a
combination of (i) and (ii).
The Option shall not be exercisable at any time in an amount less than
100 Shares (or the remaining fraction of a Share then covered by and purchasable
under the Option if less than 100 Shares).
4. TERM OF OPTIONS; EXERCISABILITY.
(i) This Option shall expire 5 years from the date hereof of this
Agreement (the "Expiration Date"), subject to earlier termination as herein
provided.
(ii) Except as otherwise provided in this Section 4, if the Optionee's
employment by the Company is terminated for any reason, the Option shall
terminate on the earlier of (i) three months after the date the Optionee's
employment is terminated, or (ii) the date on which the Option expires by its
terms.
(iii) If the Optionee's employment by, of, or to, the Company is
terminated by the Company for cause (as such term is defined in his employment
agreement), the Option will to the extent not terminated be deemed to have
terminated on the date immediately preceding the date the Optionee's employment
by, or retention as an agent, director of, or consultant to, the Company is
terminated by the Company and its subsidiaries.
(iv) If the Optionee's employment by the Company is terminated because
of disability or death, the Option shall terminate on the earlier of (i) one
year after termination, or (ii) the date on which the Option expires by its
terms.
5. NON-TRANSFERABILITY.
The right of the Optionee to exercise the Option shall not be
assignable or transferable by the Optionee otherwise than by will or the laws of
descent and distribution, and the Option may be exercised during the lifetime of
the Optionee only by the Optionee. The Option shall be null and void and without
effect upon the bankruptcy of the Optionee or upon any attempted assignment or
transfer, except as hereinabove provided, including without limitation, any
purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition contrary to the provisions hereof, or levy of
execution, attachment, trustee process or similar process, whether legal or
equitable, upon the Option.
6. REPRESENTATION LETTER AND INVESTMENT LEGEND.
(a) Notwithstanding the provisions of Sections 3 and 4 hereof, the
Option cannot be exercised, and the Company may delay the issuance of the Shares
covered by the exercise of the
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Option and the delivery of a certificate for the Shares, until one of the
following conditions shall be satisfied:
(i) The Shares with respect to which the Option has been exercised are
at the time of the issuance of the Shares effectively registered or qualified
under applicable federal and state securities acts now in force or as hereafter
amended; or
(ii) Counsel for the Company shall have given an opinion, which opinion
shall not be unreasonably conditioned or withheld, that the issuance of the
Shares is exempt from registration and qualification under applicable federal
and state securities acts now in force or as hereafter amended.
(b) In the event that for any reason the Shares to be issued upon
exercise of the Option shall not be effectively registered under the Securities
Act of 1933, as amended (the "1933 Act"), upon any date on which the Option is
exercised in whole or in part, the Optionee shall give a written representation
to the Company in the form attached hereto as Exhibit A and the Company shall
place an "investment legend," so-called, as described in Exhibit A, upon any
certificate for the Shares issued by reason of such exercise. In the event that
the Company shall, nevertheless, deem it necessary or desirable to register
under the 1933 Act or other applicable statutes the Shares with respect to which
the Option shall have been exercised, or to qualify the Shares for exemption
from the 1933 Act or other applicable statutes, then the Company may take such
action and may require from the Optionee such information in writing for use in
any registration statement, supplementary registration statement, prospectus,
preliminary prospectus, offering circular or any other document that is
reasonably necessary for such purpose and may require reasonable indemnity to
the Company and its officers and directors from the Optionee against all losses,
claims, damages and liabilities arising from such use of the information so
furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
(c) The Company shall be under no obligation to qualify the Shares or
to cause a registration statement or a post-effective amendment to any
registration statement to be prepared for the purposes of covering the issue of
the Shares or to cause the issuance of the Shares to be exempt from registration
and qualification under applicable federal and state securities acts now in
force or as hereinafter amended, except as otherwise agreed to by the Company in
writing in its sole discretion and, accordingly, the Company may delay the
issuance of the Shares covered by the exercise of the Option and the delivery of
a certificate for the Shares until the Company shall have determined that all
conditions to the issuance of the Shares shall have been satisfied.
7. ADJUSTMENT IN AND CHANGES IN COMMON STOCK.
Subject to the Plan, if the outstanding shares of the Common Stock are
changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any reorganization, recapitalization,
reclassification, stock split, combination of shares, or dividends payable in
capital stock, appropriate and equitable adjustment shall be made by the Board
of Directors of the Company, in its sole discretion, in the number and kind of
shares as to
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which the Option or portion thereof then unexercised shall be exercisable. Such
adjustment in the Option shall be made without change in the total price
applicable to the unexercised portion of such the Option and with a
corresponding adjustment in the Option price per share.
8. EFFECT ON OTHER RIGHTS.
This Agreement shall in no way affect the Optionee's participation in
or benefits under any other plan or benefit program maintained or provided by
the Company. Nothing in this Agreement shall be construed to give the Optionee
any right to any additional options other than in the sole discretion of the
Board of Directors of the Company or to confer on the Optionee any right to
continue in the employ of the Company or any subsidiary thereof or to continue
to be retained as an agent, director of, or consultant to, the Company, or to be
evidence of any agreement or understanding, express or implied, that the Company
will employ or continue to retain the Optionee in any particular position or at
any particular rate of remuneration, or for any particular period of time or to
interfere in any way with the right of the Company or a subsidiary thereof (or
the right of the Optionee) to terminate the employment or retention of the
Optionee at any time, with or without cause, notwithstanding the possibility
that the Option may thereby be Terminated entirely.
9. RIGHTS AS A STOCKHOLDER.
The Optionee shall have no rights as a stockholder with respect to any
Shares which may be purchased by exercise of the Option until (x) the Option
shall have been exercised with respect thereto (including payment to the Company
of the Purchase Price), and (y) the earlier to occur of (i) delivery by the
Company to the optionee of a certificate therefor or (ii) the date on which the
Company is required to deliver a certificate pursuant to the Plan and this
Agreement. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such certificate is issued or required to be issued in accordance
with the Plan.
10. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY THEREIN WITHOUT
REFERENCE TO CONFLICT OF LAWS PRINCIPLES.
11. WITHHOLDING TAXES.
Whenever Shares are to be issued upon exercise of the Option, the
Company shall have the right to require the Optionee to remit to the Company an
amount sufficient to satisfy all federal, state and local withholding tax
requirements, if any, prior to the delivery of any certificate or certificates
for such Shares. The Company may agree to permit the Optionee to withhold Shares
purchased upon exercise of this Option to satisfy the above-mentioned
withholding requirement.
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12. HEADINGS.
The headings contained in this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or intent of
this Agreement or in any way affect this Agreement.
13. BINDING EFFECT.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed, and the Optionee has hereunto set his or her hand and seal, all as of
the day and year first above written.
CORNICHE GROUP INCORPORATED.
By:
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Title: Chairman of the Board
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OPTIONEE
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APPENDIX A
TO STOCK OPTION AGREEMENT
OPTIONS GRANTED AND VESTING PERIOD:
Set forth below are the options granted to the Optionee and the vesting schedule
with respect thereto.
Number of Shares Option Price Vesting Date
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37,500 $1.097 2/01/00
18,750 $1.097 6/26/01
18,750 $1.097 6/26/02
50,000 $1.00 2/01/01
25,000 $1.00 2/01/02
25,000 $1.00 2/01/03
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EXHIBIT B
TO STOCK OPTION AGREEMENT
Date:
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Corniche Group Incorporated
000 X. Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
I hereby elect to purchase _______ shares of the Common Stock, par
value $.00001 per share, of Corniche Group Incorporated (the "Company") under
the option granted to me pursuant to the Stock Option Agreement, dated February
15th, 2000.
Enclosed is [cash] [a check] in the amount of $______.___ [______
shares of the Company's Common Stock] in full payment of the shares being
purchased ($________ per share).
Please deliver certificates representing the shares being purchased to
me at:
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I hereby acknowledge that I have been informed as follows:
1. The shares of common stock of the Company to be issued to me
pursuant to the exercise of said option have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), and accordingly, must be
held indefinitely unless such shares are subsequently registered under the 1933
Act, or an exemption from such registration is available.
2. Routine sales of securities made in reliance upon Rule 144, if
applicable, under the 1933 Act can be made only after the holding period and in
limited amounts in accordance with the terms and conditions provided by that
Rule, and in any sale to which that Rule is not applicable, registration or
compliance with some other exemption under the 1933 Act will be required.
3. The Company is under no obligation to me to register the shares or
to comply with any such exemptions under the 1933 Act.
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4. The availability of Rule 144, if applicable, is dependent upon
adequate current public information with respect to the Company being available
and, at the time that I may desire to make a sale pursuant to the Rule, the
Company may neither wish nor be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me,
I hereby represent and warrant that I am acquiring such shares for my own
account for investment, and that I will not sell, pledge, transfer or otherwise
dispose of such shares in the absence of an effective registration statement
covering the same, except as permitted by the provisions of Rule 144, if
applicable, or some other applicable exemption under the 1933 Act. In view of
this representation and warranty, I agree that there may be affixed to the
certificates for the shares to be issued to me, and to all certificates issued
hereafter representing such shares (until in the opinion of counsel, which
opinion must be reasonably satisfactory in form and substance to counsel for the
Company, it is no longer necessary or required) a legend as follows:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended (the
"Act"), and were acquired by the registered holder, pursuant to a
representation and warranty that such holder was acquiring such shares
for his or her own account and for investment, with no intention to
transfer or dispose of the same, in violation of the registration
requirements of the Act. These shares may not be sold, pledged,
transferred or otherwise disposed of in the absence of an effective
registration statement under the Act, or an opinion of counsel, which
opinion is reasonably satisfactory to counsel to the Company, to the
effect that registration is not required under the Act."
I further agree that the Company may place a stop order with its
Transfer Agent, prohibiting the transfer of such shares, so long as the legend
remains on the certificates representing the shares.
Very truly yours,
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Optionee:
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