Exhibit 10.4
Form of Option Agreement for option grants under the Cyber Dialogue, Inc.
Amended and Restated Stock Option Plan
THE OPTION GRANTED PURSUANT TO THIS
NONQUALIFIED STOCK OPTION AGREEMENT (THE
"OPTION") AND THE SHARES OF COMMON STOCK
ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR
THE OPTION OR THE SHARES UNDER THE
SECURITIES ACT, OR AN OPINION OF
COUNSEL, WHICH IS SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
Agreement #
888
CYBER DIALOGUE INC.
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT ("Option Agreement"), dated as
of 31st March, 1999 by and between Cyber Dialogue Inc. (the "Company") and
XXXXXXXXXXXXXXXXX, an employee of the Company or a division or subsidiary of the
Company (the "Optionee").
WHEREAS, pursuant to the Cyber Dialogue Inc. Amended and Restated
1997 Stock Option Plan (the "Plan"), the committee duly appointed by the Board
of Directors of the Company (the "Committee") has determined that the Optionee
is to be granted, on the terms and conditions set forth herein, an option (the
"Option") to purchase shares of the common stock, par value $.01 per share, of
the Company (the "Common Stock") and hereby grants such Option; and
WHEREAS, it is the intention of the Committee that the Option be a
nonqualified option which is not intended to constitute an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. Number of Shares and Option Price. The Option represents the right, on the
terms and conditions set forth herein, to purchase XXXXXXXX shares of
Common Stock (the "Shares") at a price (the "Option Price") of $XXXXXXXXX
per share, which is not less than the Fair Market Value (as defined in the
Plan) per share of the shares of Common Stock as of the date hereof.
2. Term of Option and Conditions of Exercise.
a. Term of Option. Unless the Option is previously terminated pursuant
to this Option Agreement, the term of the Option and of this Option
Agreement shall commence on the date hereof (the "Date of Grant")
and terminate upon the expiration of ten (10) years from the Date of
Grant. Upon the termination of the Option, all rights of the
Optionee hereunder shall cease.
b. Conditions of Exercise. The Option shall be exercisable as follows:
i. the Option becomes exercisable for twenty-five percent (25%)
of the Shares commencing on the first anniversary of the Date
of Grant; and
ii. the Option becomes exercisable for an additional twenty-five
percent (25%) of the Shares commencing on the second
anniversary of the Date of Grant; and
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iii. the Option becomes exercisable for an additional twenty-five
percent (25%) of the Shares commencing on the third
anniversary of the Date of Grant; and
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iv. the Option becomes exercisable for an additional twenty-five
percent (25%) of the Shares commencing on the fourth
anniversary of the Date of Grant;
provided, however, that the Option may be exercised only to purchase
whole Shares and in no case may a fraction of a Share be purchased.
The right of the Optionee to purchase any or all full Shares with
respect to which this Option has become exercisable as herein
provided may be exercised in whole or in part at any one time, or
from time to time, prior to the tenth anniversary of the Date of
Grant; provided further, however, that the Option may not be
exercised at any one time as to fewer than 100 Shares unless the
remaining number of Shares as to which the Option is exercisable
prior to such exercise is less than 100 and such exercise is for all
such remaining Shares.
c. Acceleration. The Committee may, in its discretion, accelerate the
exercisability of the Option or any part thereof, upon such
circumstances and subject to such terms and conditions as the
Committee deems appropriate.
3. Rights Upon Termination of Employment.
a) Except as provided in this Section 3, the Option may not be
exercised after the Optionee has ceased to be employed by the
Company or its Parent or Subsidiary Corporations (each as defined in
the Plan).
b) If the Optionee ceases to be employed by the Company or a Parent or
Subsidiary Corporation by reason of death or Disability prior to the
expiration of the Option, the Optionee or his or her legal
representative may exercise the Option at any time within a period
of six months after such cessation of employment to the extent that
the Option was exercisable on the date of his or her cessation of
employment.
c) Notwithstanding anything to the contrary in this Section 3, the
Option shall not be exercisable later than ten years from the Date
of Grant.
4. Nontransferability of Option. The Option and this Option Agreement shall
not be assignable or transferable otherwise than by will or by the laws of
descent and distribution; and the Option may be exercised, during the
lifetime of the Optionee, only by the Optionee or by the Optionee's legal
representative.
5. Exercise Of Option. The Option shall be exercised in the following manner:
the Optionee, or the person(s) having the right to exercise the Option
upon the death or Disability of the Optionee, shall deliver to the Company
written notice specifying the number of Shares which the Optionee elects
to purchase, together with cash in an amount equal to the price to be paid
upon such exercise of the Option; provided, however, that such purchase
may be effected in whole or in part with monies received from the Company
at the time of exercise as a compensatory cash payment, or with monies
borrowed from the Company pursuant to terms and conditions determined by
the Committee, in its discretion, separately with respect to each exercise
of an Option and each Optionee; provided further, however, that, each such
method and time for payment and each such borrowing and terms and
conditions of repayment shall be permitted by and be in compliance with
applicable law. In either such event, the Company shall issue or cause to
be issued, and deliver as promptly as possible to the Optionee,
certificates representing the appropriate number of Shares which
certificates shall be registered in the name of the Optionee.
6. Notices. Any notice required or permitted under this Option Agreement
shall be deemed given when delivered personally, or when deposited in a
United States Post Office, postage prepaid, addressed, as appropriate, to
the Optionee either at the Optionee's address as last known by the Company
or such other address as the Optionee may designate in writing to the
Company.
7. Failure to Enforce Not a Waiver. The failure of the Company to enforce at
any time any provision of this Option Agreement shall in no way be
construed to be a waiver of such provision or of any other provision
hereof.
8. Incorporation of Plan. The Plan is hereby incorporated herein by reference
and made a part hereof, and the Option and this Option Agreement are
subject to all terms and conditions of the Plan.
9. General Restrictions. This award of an Option shall be subject to the
requirement that, if at any time the
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Committee shall determine that (i) the listing, registration or
qualification of the shares of Common Stock subject or related thereto
upon any securities exchange or under any state or federal law, or (ii)
the consent or approval of any government regulatory body, or (iii) an
agreement by the recipient of an award with respect to the disposition of
shares of Common Stock, is necessary or desirable as a condition of, or in
connection with, the
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granting of such Option or the issue or purchase of shares of Common Stock
thereunder, such award or issue or purchase of shares of Common Stock
thereunder, as the case may be, may not be consummated in whole or in part
unless such listing, registration, qualification, consent, approval or
agreement shall have been effected or obtained free of any conditions not
acceptable to the Committee. In connection therewith, the Optionee agrees
to be bound by the terms of the Stockholders Agreement (as defined in the
Plan) with respect to any Shares issued to the Optionee upon exercise, in
whole or in part, of this Option and to execute such documents as shall be
provided b the Company to evidence same.
10. Rights of a Stockholder. The Optionee shall have no rights as a
stockholder with respect to any Shares unless and until stock certificates
for such Shares are issued to the Optionee. Upon the issuance of a stock
certificate, all Shares covered by such certificate shall be subject to
the terms of the Stockholder's Agreement.
11. Rights to Terminate Employment. Nothing in the Plan or in this Option
Agreement shall confer upon the Optionee the right to continue in the
employment of the Company or its Parent or Subsidiary Corporations or
affect any right which the Company or its Parent or Subsidiary
Corporations may have to terminate the employment of the Optionee.
12. Withholding. Whenever the Company proposes or is required to issue or
transfer Shares under this Option Agreement, the Company shall have the
right to require the Optionee or his or her leg representative to remit to
the Company an amount sufficient to satisfy any federal, state and/or
local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares.
13. Effect of Certain Changes. The Option granted under this Option Agreement
is subject to the adjustments specified in Section 9 of the Plan.
14. Governing Law. This Option Agreement shall be governed by and construed
according to the law of the State of Delaware, without regard to the
conflicts of law rules thereof.
15. Amendment and Termination. The Committee may amend or terminate the Plan
at any time; provided, however, that the amendment or termination of the
Plan shall not, without the consent of the Optionee or his or her legal
representative, affect the Optionee's rights under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the date and year set forth first above.
CYBER DIALOGUE INC.
By
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The undersigned hereby accepts and
agrees to all the terms and provisions
of the foregoing Option Agreement and to
all of the terms and provisions of the
Cyber Dialogue Inc. Amended and Restated
1997 Stock Option Plan incorporated
herein by reference.
By
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Optionee
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