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EXHIBIT 10.9
FORM OF DIRECTOR/OFFICER
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as
of the 2nd day of July, 1999, by and between XXXXXXXXXX.XXX, a Delaware
corporation (the "Company"), and _______________, an individual resident of the
State of ________ ("Optionee").
W I T N E S S E T H:
WHEREAS, in connection with Optionee agreeing to serve as a Director of
the Company, the Company desires to grant non-qualified stock options to
Optionee; and
WHEREAS, the Optionee has agreed to serve as a Director of the Company.
NOW, THEREFORE, in consideration of their mutual undertakings, it is
agreed by and between parties hereto as follows:
23. The Company hereby grants to Optionee as of the date hereof stock
options to purchase ___________________ shares of the common stock, $.04 par
value, of the Company (the "Common Stock") exercisable at any time prior to
11:59 p.m., Atlanta time, on July 7, 2009 (the "Expiration Date") at a price of
$2.50 per Option Share. "Option Share(s)" shall mean the share(s) of Common
Stock which shall be purchased or shall be available for purchase upon exercise
of the stock option granted hereby and any security which shall be issued in
lieu of or in addition to any other Option Share by reason of any
recapitalization, special dividend transaction or other such event as provided
in Section 5 below.
24. Except as otherwise provided below, the option granted hereby may
be exercised at any time, or from time to time, in whole or in part, until the
Expiration Date. The exercise of all or any portion of the stock option granted
hereby will be contingent upon stockholder approval of the Agreement and upon
receipt by the Company of the advice of counsel to the Company that such Option
Shares have been duly listed on the principal exchange on which the Company's
securities are traded, and duly registered or are exempt from registration under
the applicable securities laws and, in the absence of registration of the Option
Shares and to the extent required by such counsel, the receipt from the Optionee
of a representation that the Optionee intends at the time of such exercise to
acquire the Option Shares for investment only and not for distribution or
resale.
25. The Optionee may exercise all or any part of the stock option (in
whole Option Shares) by delivering written notice to the Company of the number
of Option Shares to be purchased together with cash or check, in payment of the
full purchase price of the Option Shares to be acquired. Notice shall be sent to
the Company at xxxxxxxxxx.xxx, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000. The stock option shall be deemed to have been exercised on the
date the Company receives the written notice and the required cash or check in
full payment for the purchased Option Shares, or shares of Common Stock if the
payment is to be made in such manner. A form of notice which will be deemed
satisfactory by the Company is attached to this Agreement as Exhibit A. Upon any
exercise of the stock option the Company shall cause to be delivered to the
Optionee a certificate or certificates registered in the name or the Optionee
for the number of Option Shares purchased. The Optionee shall not have any of
the rights of a Stockholder with respect to the Option Shares except to the
extent that the Optionee duly exercises the stock option granted hereby with
respect to such Option Shares. As a condition of exercise of this option, the
Company may, in its sole discretion, withhold or require the Optionee to pay or
reimburse the Company for any taxes which the Company determines are required to
be withheld in connection with the grant or any exercise of this option.
26. Notwithstanding the foregoing provisions requiring payment by cash
or check, if stock of the class then subject to this option is then "publicly
traded" (as hereafter defined), then payment of the purchase price or any
portion thereof may also be made in whole or in part with shares of the same
class of stock as that then subject to this option, surrendered in lieu of the
payment of cash concurrently with such exercise, the shares so surrendered to be
valued on the basis of the Fair Market Value of the stock (as hereinafter
provided) on the date of exercise, in which event the stock certificates
evidencing the shares so to be used shall accompany the notice of exercise and
shall be duly endorsed or accompanied by duly executed stock powers to transfer
the same to the Company; provided, however, that such payment in stock instead
of cash shall not be effected and shall be rejected by the Company if (a) the
Company is then prohibited from purchasing or acquiring shares of the class of
its stock thus tendered to it or (b) the right or power of the person exercising
the option to deliver such shares in payment of the purchase price is subject to
the prior interest of any person (other than the Company) as indicated by
legends upon the certificate(s) or known to the Company. If the Company rejects
the payment in stock, the tendered notice of exercise shall not be effected
hereunder unless promptly after being
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notified of such rejection the person exercising the option pays the purchase
price in acceptable form. If and while payment with stock is permitted in
accordance with the foregoing provision, then the person then entitled to
exercise this option may, in lieu of using previously outstanding stock
therefor, use a portion of the shares as to which this option is then being
exercised, in which case the notice of exercise need not be accompanied by any
stock certificates but shall include a statement directing the Company to retain
so many shares that would otherwise have been delivered by the Company upon that
exercise of this option as equals the number of shares that would have been
surrendered to the Company if the purchase price had been paid with previously
issued stock. If the Company is required to withhold on account of any federal,
state or local tax imposed as a result of any exercise of this option with
previously issued stock or by retention of a portion of Option Shares under this
section, then the stock surrendered or retained shall include an additional
number of shares whose Fair Market Value equals the amount thus required to be
withheld. For purposes hereof, "publicly traded" shall mean that a class of the
capital stock of the Company is listed or admitted to unlisted trading
privileges on a national securities exchange or designated as a national market
systems security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. ("NASD") or if sales or bid and offer quotations are
reported for that class of stock in the automated quotation system ("NASDAQ")
operated by the NASD. Further, "Fair Market Value" shall mean the closing price
of such stock as of the day in question or, if such day is not a trading day in
the principal securities market or markets for such stock, on the nearest
preceding trading day, as reported with respect to the market (or the composite
of markets, if more than one) in which shares of such stock are then traded, or,
if no such closing prices are reported, on the basis of the mean between the
high bid and low asked prices that day on the principal market or quotation
system on which shares of such stock are then quoted, or, if not so quoted, as
furnished by a professional securities dealer making a market in such stock
selected by the Board of Directors of the Company.
27. In the event of changes in the outstanding shares of Common Stock
by reason of stock dividends, stock splits, subdivisions or combinations of
shares, the number of Option Shares shall be correspondingly and fairly adjusted
by the Board of Directors of the Company, the decision of which shall be final
and conclusive. A corresponding adjustment shall be made without change in the
total exercise price applicable to the unexercised portion of the Option Shares
with a corresponding adjustment in the exercise price per share.
28. If the Company is merged, consolidated or effects a share exchange
with another corporation (whether or not the Company is the surviving
corporation), or if substantially all of the assets or all of the Common Stock
is acquired by another corporation, or in the event of a separation,
reorganization or liquidation of the Company, the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company hereunder, shall make appropriate provision for the protection of
the option granted hereby by the substitution on an equitable basis of
appropriate stock of the Company, or of the merged, consolidated or otherwise
reorganized corporation which will be issuable in respect to the shares of
Common Stock, provided only that the excess of the aggregate fair market value
of the Option Shares immediately after such substitution over the exercise price
thereof is not more than the excess of the aggregate fair market value of the
Option Shares immediately before such substitution over the exercise price
thereof. Notwithstanding the preceding sentence, if the Company is merged,
consolidated or effects a share exchange with another corporation or if
substantially all of the assets or all of the Common Stock is acquired by
another corporation, or in the event of a separation, reorganization or
liquidation of the Company, then the Board of Directors of the Company or the
board of directors of any corporation assuming the obligations of the Company
hereunder may, on or before the thirtieth (30th) day following such event and
upon written notice to the Optionee, provide that the option granted hereby must
be exercised within sixty (60) days of the date of such notice or it will be
terminated.
29. This Agreement shall not be assignable or transferable by Optionee
otherwise than by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order and the stock option hereby granted shall not
be exercised by any person other than Optionee during Optionee's lifetime. After
the death of Optionee, the person to whom Optionee's rights hereunder pass under
Optionee's will or under the laws of descent and distribution shall be deemed
the holder of the stock option granted hereby.
30. To the extent not superseded by federal law, the laws of Delaware
shall control in all matters relating to this Agreement.
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31. Optionee understands that the Option Shares are not registered
under the Securities Act of 1933 (the "1933 Act") or any state securities act
and will be issued to Optionee pursuant to exemptions from registration
thereunder. Optionee also understands that applicable securities laws may
restrict the right of Optionee to exercise the stock option or to dispose of any
shares which Optionee may acquire upon any such exercise and may govern the
manner in which such shares must be sold. Optionee shall not offer, sell or
otherwise dispose of any of the Option Shares acquired by reason of the exercise
of the stock option in any manner which would violate the 1933 Act or any other
state or federal law or cause the Company to have to make any filing or take any
action to avoid such a violation.
32. Optionee hereby represents that all Option Shares purchased by him
pursuant to his exercise of all or any portion of the stock option will be
acquired only for investment and not with a view to distribution or resale.
33. All pronouns, defined nouns and any variations thereof in this
Agreement shall be deemed to refer to the masculine, feminine or neuter gender
and to either singular or plural, whenever the context of this Agreement so
requires.
IN WITNESS WHEREOF, Optionee has executed and delivered this Agreement
and the Company has caused this Agreement to be executed and delivered on its
behalf by its duly authorized representative, as of the day and year above
written.
XXXXXXXXXX.XXX
By:
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Its:
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OPTIONEE
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EXHIBIT A
TO: xxxxxxxxxx.xxx
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Pursuant to the Non-Qualified Stock Option Agreement (herein called the
"Agreement"), dated as of July 2, 1999, by and between xxxxxxxxxx.xxx (the
"Company") and me, I hereby give notice that I elect to exercise the stock
option granted under the Agreement with respect to ______ shares of the common
stock of the Company as of the date on which this notice is delivered to the
Company, and accordingly I hereby agree to purchase such shares at the price and
on the terms established under the Agreement. Full payment for such shares is
enclosed. Such payment consists of:
__________ Cash
__________ Check
__________ shares of the Company's common stock, _____ of which
are previously owned.
I hereby represent and warrant that I am purchasing such shares for
investment purposes only and not with a view to distribution or resale.
I hereby agree that the stock option granted under the Agreement shall
be deemed to have been exercised to the extent specified in this notice on the
exercise date below my signature, and I hereby warrant that on such date this
notice was delivered to the Company.
Sincerely,
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(Sign Name)
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(Print Name)
DATED:
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