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 effective as of April
9, 2001, ("Effective Date" or "Date of Grant") by and between Accesspoint
Corporation, a Nevada corporation ("Company"), and the optionee named below
("Optionee"). The Company and/or the Optionee are sometimes herein referred to
individually as a "party" and collectively as the "parties."
Optionee: Xxxxxx X. Xxxxxx, as trustee of the Xxxxxxx
X. Xxxxxx Family Living Trust U/D/T
Social Security Number:
Address: 9722 Xxxxxxx, Xxxxxxxxxx Xxxxx, XX 00000
Total Option Shares: 9,375 shares
Exercise Price Per Share: $2.50
Date of Grant: April 9, 2001
Expiration Date for Exercise of Options: April 8, 2004
IN CONSIDERATION of the mutual promises contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee an option
("Option" or "Options") to purchase 9,375 shares of Common Stock of the
Company ("Shares") at the exercise price of $2.50 per Share ("Exercise
Price"), subject to all of the terms and conditions of this Agreement
and any applicable plan. The Options granted herein constitute
non-qualified stock options as defined pursuant to Section 422A of the
Internal Revenue Code of 1986, as amended ("Code").
2. EXERCISE PRICE. The Exercise Price is deemed to be not less than the
fair market value per share of Common Stock of the Company on the date
of grant, as determined by the Board of Directors ("Board") of the
Company.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term as
follows:
1
(i) These Options may not be exercised for a fraction of a Share.
These Options shall be exercisable by written notice which
shall state the election to exercise the Options, the number
of Shares in respect of which the Options are 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 any applicable 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.
(ii) No Shares will be issued pursuant to the exercise of an Option
unless such issuance and such exercise shall comply with all
applicable laws, rules and regulations (including, without
limitation, securities laws, rules and regulations) and the
requirements of any stock exchange or quotation service upon
which the Shares may then be listed or quoted. Assuming such
compliance, for income tax purposes the Shares may be
considered transferred to the Optionee upon exercise of the
Options in accordance with the terms of this Agreement on date
on which the funds representing the Exercise Price are
confirmed good to the account of the Company.
(iii) The Company may require the Optionee to make an extra cash
payment to cover any tax, withholding requirement or similar
obligation or liability as a condition to exercise of this
Option. The Company reserves the right to seek from Optionee,
at any time (including, without limitation, after exercise of
the Options), of any tax, withholding or other amount required
to be paid by the Company for the benefit of Optionee on
account of the exercise.
(iv) The number of Options and the number or 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, these Options (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 these Options 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 these Options 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 these Options 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. METHOD OF PAYMENT. Payment of the Exercise Price shall be made by cash
or other cash equivilant in the form of good and immediately available
funds, as may be approved by the Company in the sole discretion of the
Board at the time of exercise.
2
5. NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common
Stock is greater than the Per Share Exercise Price (at the date of
calculation as set forth below), in lieu of exercising this Option for
cash, the Optionee may elect to receive shares equal to the value (as
determined below) of this Option (or the portion thereof being
canceled) by surrender of this Option at the principal office of the
Company together with the properly endorsed Notice of Exercise and
Subscription Form and notice of such election, in which event the
Company will issue to the Optionee a number of shares of Common Stock
computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the
Optionee
Y = the number of shares of Common Stock purchasable under
this Option or, if only a portion of this Option is being exercised,
the portion of this Option being canceled (at the date of such
calculation)
A = the fair market value of one share of the Company's Common
Stock (at the date of such calculation)
B = Per Share Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of
one share of the Company's Stock will be the average of the closing
prices of the Company's shares of Common Stock as quoted on the OTC
Bulletin Board (the "OTCBB") (or on such other United States stock
exchange or public trading market on which the shares of the Company
trade if, at the time of the election, they are not trading on the
OTCBB), for the five (5) consecutive trading days immediately preceding
the date of the date the completed, executed Notice of Exercise and
Subscription Form is received.
6. OPTIONEE'S REPRESENTATIONS. By receipt of these Options, by the
execution of this Agreement, and by the exercise in whole or in part of
these Options, Optionee represents to the Company that Optionee
understands that:
(i) both these Options 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 5 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
3
Act of 1933, as amended (the "Act") in reliance upon one or
more specific exemptions contained in the Act, 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
Options are 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 Options;
(v) Optionee understands that the Shares subject to these Options,
must, in addition to other restrictions on transfer, 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.
7. RESTRICTIONS ON EXERCISE. These Options 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 laws, rules or regulation, or
other laws, rules or regulations. As a condition to the exercise of
these Options, the Company may require Optionee to make any
representation and warranty to the Company as may be required by any
applicable law or regulation.
8. NON-TRANSFERABILITY OF OPTION. These Options 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.
9. 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.
10. TAX CONSEQUENCES. The Optionee understands that any references to tax
or taxation herein 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
4
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 and remain responsible for the Optionee's own tax
liability that may arise as a result of the transactions contemplated
by this Agreement.
10. 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.
11. OPTION CERTIFICATES AND LEGENDS. The Company, may, in its discretion,
issue certificates representing the Options. Certificates, if any,
representing the Options may 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 OPTIONS 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 REGISTRATION THEREUNDER OR AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT.
SUCH OPTIONS 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 THE COMPNAY CONSENTS, SUCH
STOCK OPTION AGREEMENT PROHIBITS ANY PLEDGE, MORTGAGE OR OTHER
ENCUMBRANCE OF SUCH OPTIONS 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 OPTIONS 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 OPTIONS 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.
12. STOCK CERTIFICATE LEGENDS. Each stock certificate for Shares issued to
the Optionee may 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:
5
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 REGISTRATION THEREUNDER OR AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT.
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.
13. MARKET STANDOFF. Unless the Board 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 any 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 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.
14. PRIVILEGES OF STOCK OWNERSHIP. Participant shall not have any of the
rights of a shareholder with respect to any Shares unless and until
Optionee exercises these Options, pays the Exercise Price, actually
receives Shares and becomes a shareholder of the Company.
15. RULE 144. Optionee acknowledges and understands that the Shares may be
subject to transfer and sale restrictions imposed pursuant to SEC Rule
144 of the Rules promulgated under the Securities Act of 1933 ("Act")
and the regulations promulgated thereunder. Optionee shall comply with
Rule 144 and with all policies and procedures established by the
Company with regard to Rule 144 matters. Optionee acknowledged that the
Company or its attorneys or transfer agent may require a restrictive
legend on the certificate or certificates representing the Shares
pursuant to the restrictions on transfer of the Shares imposed by Rule
144.
16. NO DISTRIBUTION. Notwithstanding anything in this Agreement to the
contrary, Optionee acknowledges that: (i) these Options, and the Shares
upon exercise, are being acquired in a private transaction which is not
part of a distribution of the Options or Shares; (ii) the Optionee
intends to hold the Options and Shares for the account of the Optionee
and does not intend to sell the Options or Shares as a part of a
distribution or otherwise; and (iii) neither the Optionee nor the
Company is an underwriter with regard to the Options or the Shares for
purposes of Rule 144.
17. SECURITIES COMPLIANCE. Optionee understands that the Options and the
Shares are being offered and sold in reliance on an exemption from the
registration requirements of federal and state securities laws under
Regulation D (and, to the extent applicable, Regulation S) promulgated
under the Securities Act and that the Company is relying upon the truth
6
and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of Optionee set forth herein in
order to determine the applicability of such exemptions and the
suitability of Optionee to acquire the Options and the Shares. The
representations, warranties and agreements contained herein are true
and correct as of the date hereof and may be relied upon by the Company
and Optionee will notify the Company immediately of any adverse change
in any such representations and warranties which may occur prior to the
issuance of Shares. The representations, warranties and agreements of
Optionee contained herein shall survive the execution and delivery of
this Agreement and the exercise of the Options and the issuance of the
Shares.
18. 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.
19. AMENDMENTS. This Agreement may be amended only by written consent of
each of the parties hereto.
20. FURTHER ACTS. The parties hereto shall cooperate with each other and
execute such additional documents or instruments and perform such
further acts as may be reasonably necessary to affect the purpose and
intent of the Agreement.
21. EFFECT OF HEADINGS. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of
convenience only, and shall not affect the construction or
interpretation of any of its provisions.
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 herein
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 actual 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.
23. COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. The
exhibits attached hereto and initialed by the parties are made a part
hereof and incorporated herein by this reference.
24. PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it
and their respective successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability
of any third party to this Agreement, nor shall any provision give any
third person any right of subrogation or action over against any party
to this Agreement.
7
25. RECOVERY OF LITIGATION COSTS. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Agreement, the successful
or prevailing party or parties shall be entitled to recover as an
element of their damages, reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief
to which they may be entitled.
26. 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.
27. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. All representations,
warranties and agreements of the parties contained in this Agreement,
or in any instrument, certificate, opinion or other writing provided
for in it, shall survive the exercise of the Options and the issuance
of the Shares.
28. GENDER; NUMBER. Whenever the context of this Agreement requires, the
masculine gender includes the feminine or neuter gender, and the
singular number includes the plural.
29. GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of California.
30. VENUE. This Agreement is to be performed at Orange County, California.
Therefore, venue for any action brought regarding the interpretation or
enforcement of this Agreement shall lie exclusively in Orange County,
California.
IN WITNESS WHEREOF, this Agreement is made effective on the date first
set forth above at Orange County, California.
COMPANY:
Accesspoint Corporation, a Nevada Corporation
By: /s/ Xxx X. Xxxxxxxxx
------------------------------------------
Xxx X. Xxxxxxxxx,
Chief Executive Officer
8
OPTIONEE: Xxxxxx X. Xxxxxx, as trustee
of the Xxxxxxx X. Xxxxxx Family Living
Trust U/D/T
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
0000 Xxxxxxx, Xxxxxxxxxx Xxxxx, XX 00000
-------------------------------------
[Print Address]
-------------------------------------
[Print Tax Identification Number]
9
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: ------------------------------------
Name:
10
