Exhibit 10.3
XXXXXXX X. XXXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"),
dated December 19, 1997 is between XXXXXXX X. XXXXX ("Xxxxx") and NETVALUE,
INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Xxxxx entered into an Employment Agreement with the Company,
dated September 19, 1996 (the "Prior Agreement"), pursuant to which Xxxxx is
currently employed by the Company;
WHEREAS, Xxxxx and the Company wish to amend and restate the terms of
Xxxxx'x employment as set forth in this Agreement which shall supersede and make
null and void the Prior Agreement; such amendment shall be effective on
September 19, 1997, the anniversary date of Xxxxx'x employment with the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements herein contained, and intending to be legally bound,
Xxxxx and the Company hereby agree as follows:
1. Position. The Company agrees to employ Xxxxx and Xxxxx agrees to
serve the Company during the term hereof as President and Chief Executive
Officer of the Company, or in such other executive position as may be mutually
agreed upon by Xxxxx and the Company. During the Term (as defined in Section 3
hereof), subject to the Company's fiduciary duty to its stockholders, the
Company shall use its best efforts to cause Xxxxx to be elected a member of the
Board of Directors of the Company (the "Board"); provided, however, that the
failure of Xxxxx to be elected or reelected to the Board shall not constitute a
breach of this Agreement. Xxxxx shall be furnished with such facilities and
services as are suitable to his position and adequate for the performance of his
duties.
2. Duties. Xxxxx agrees to assume such duties and responsibilities as
may be consistent with the position specified in Section 1 hereof, and as may be
assigned to Xxxxx by the Board and in accordance with the by-laws of the Company
from time to time. Xxxxx agrees to devote his best efforts and such time, skill,
attention and energies as are necessary to the performance of his duties
and responsibilities under this Agreement, consistent with practices and
policies established from time to time by the Board.
3. Term. The term of this Agreement shall commence as of the date
hereof (the "Effective Date") and shall continue for a term of five (5) years,
unless otherwise terminated by either party in accordance with the provisions of
Section 5 hereof.
4. Compensation.
4.1. Base Salary and Bonus. For services rendered hereunder,
from the Effective Date until the first anniversary thereof, Xxxxx shall be paid
an annual base salary in the amount of One Hundred Sixty-Five Thousand Dollars
($165,000.00), provided that Twenty Five Thousand Dollars ($25,000.00) of such
base salary shall be deferred and shall be paid to Xxxxx prior to each
anniversary of the Effective Date. Xxxxx'x salary shall be payable in a manner
and at such times as is consistent with the payroll practices of the Company.
Not less often than annually, the Board shall review the base salary of Xxxxx
for the purpose of making such increases therein as the performance of Xxxxx
during the prior year may warrant; provided, however, that the base salary of
Xxxxx shall not be decreased, without his consent, from that in effect from time
to time. The Board, in its sole discretion, may award Xxxxx bonuses in such
amounts and at such times as the Board deems appropriate.
4.2. Fringe Benefits. Xxxxx shall be entitled to such fringe
benefits as are agreed to by Xxxxx and the Board, provided, however, that in no
event shall such benefits be less than those which are provided to other senior
officers of the Company.
4.3. Reimbursement of Expenses. Subject to such conditions as
the Board may from time to time determine, Xxxxx shall be reimbursed upon
presentation of vouchers or paid upon presentation of invoices for reasonable
expenses incurred by him in the performance of his duties in carrying out the
terms of this Agreement, including expenses for entertainment, travel, lodging
and membership in local luncheon clubs, business associations and service
organizations.
4.4. Employee Stock Options. The Company and Xxxxx shall enter
into the Award Agreement attached hereto as Exhibit A on or before the Effective
Time. Such Award Agreement shall govern the terms and conditions of the stock
options to be granted to Xxxxx under the terms of the Company's employee stock
option plan.
5. Termination.
5.1. Company. Upon ten (10) days advance written notice, the
Company, by action of the Board, may terminate this Agreement, at any time for
cause in the event of (i) the death or permanent disability of Xxxxx; (ii) the
demonstrated continued failure by Xxxxx to perform his duties as set forth
herein or as otherwise required by the Board after written demand for
performance is made by the Board, which demand specifically identifies the
manner in which the Board finds there has been a failure to perform; provided,
however, that Xxxxx shall be given ninety (90) days to cure any such failure (if
such failure is capable of
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being cured); (iii) fraud, misappropriation, embezzlement or other violation of
the law or like nature or severity; (iv) a material breach of this Agreement by
Xxxxx; or (v) willful misconduct of Xxxxx having a material adverse effect on
the business or prospects of the Company; all as may be reasonably determined by
the Board. For purposes of this Agreement, "permanent disability" shall have the
same meaning as such phrase is given under the long term disability program
sponsored by the Company or, in the absence of such policy, as determined by a
physician selected by the Company and reasonably satisfactory to Xxxxx or his
personal representative. Upon ninety (90) days advance written notice, the
Company may terminate this Agreement at any time without cause.
5.2. Xxxxx. Upon ten (10) days advance written notice, Xxxxx
may terminate this Agreement at any time for cause in the event of (i) the
assignment to him of any duties materially inconsistent with his position,
duties and responsibilities as of the date of this Agreement; (ii) a reduction
in his compensation under this Agreement; (iii) other material breach of this
Agreement by the Company or (iv) the failure of the Company to maintain
appropriate levels of director and officer liability insurance. The right of
Xxxxx to terminate this Agreement pursuant to clauses (i), (ii) or (iii) of the
preceding sentence shall not become effective if the breach by the Company is
cured within thirty (30) days after receipt of written notification of such
breach from Xxxxx; provided, however, that, in the event such breach cannot be
cured within such thirty (30) day period, other than by reason of conditions or
circumstances within the control of the Company, the Company shall be given a
total of ninety (90) days to cure any such breach. Upon ninety (90) days advance
written notice, Xxxxx may terminate this Agreement at any time without cause.
5.3. Consequences.
(a) Except as provided in Section 5.3(e), in the
event that the Agreement is terminated (i) by the Company for the cause pursuant
to Section 5.1 hereof or (ii) by Xxxxx without cause, all rights of Xxxxx under
this Agreement (except to the extent specifically set forth in this Agreement)
shall terminate as of the date of the termination of this Agreement, but Xxxxx
shall continue to be bound by the covenant not to compete as set forth in
Section 9 hereof until one (1) year after the date of such termination.
(b) Except as provided in Sections 5.3(d) and (e), in
the event that the Agreement is terminated by the Company (x) by reason of
Xxxxx'x death or disability or (y) without cause, in addition to the deferred
compensation due to Xxxxx in accordance with Section 4.1(i) hereof, Xxxxx shall
receive his then current base salary, as provided in this Agreement, for a term
of one (1) year (the "Severance Period") from the date of termination of this
Agreement; provided, however, that the Severance Period shall be increased by
two (2) additional months on each anniversary of his employment with the Company
hereunder and under the Prior Agreement (all such severance payments to be paid
to Xxxxx during such period shall be net of all applicable taxes that are
required to be withheld therefrom). In such event, Xxxxx shall be treated as an
employee for the period during which he is receiving payments under this Section
5.3(b) and shall be entitled to participate in the fringe benefit programs under
Section 4.2 for the duration of such period, notwithstanding that any of such
benefits were provided on a group
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basis prior to such termination. Xxxxx shall continue to be bound by the
covenant not to compete set forth in Section 9 hereof during the Severance
Period.
(c) Except as provided in Sections 5.3(d) and (e), in
the event that the Agreement is terminated by Xxxxx for cause pursuant to
Section 5.2 hereof, in addition to the deferred compensation due to Xxxxx in
accordance with Section 4.1(i) hereof, Xxxxx shall receive his then current base
salary, as provided in this Agreement, for a term of two (2) years (the "For
Cause Severance Period") from the date of termination of this Agreement (all
such severance payments to be paid to Xxxxx during such period shall be net of
all applicable taxes that are required to be withheld therefrom). In such event,
Xxxxx shall be treated as an employee for the period during which he is
receiving payments under this Section 5.3(c) and shall be entitled to
participate in the fringe benefit programs under Section 4.2 for the duration of
such period, notwithstanding that any of such benefits were provided on a group
basis prior to such termination. Xxxxx shall continue to be bound by the
covenant not to compete set forth in Section 9 hereof during the For Cause
Severance Period.
(d) The compensation payable to Xxxxx or his estate
or legal representative under any paragraph of this Section 5.3 shall be in
addition to any benefits otherwise payable to Xxxxx in accordance with Section
4.2 hereof, but shall be in lieu of other compensation ordinarily paid by the
Company upon the termination, death or disability of a senior officer of the
Company. For example, in the event the Company maintains long term disability,
life insurance and the like for its senior officers, Xxxxx shall be entitled to
such fringe benefits.
(e) In the event that the Company or Xxxxx terminates
this Agreement for any reason within nine (9) months subsequent to a "Change of
Control" (as hereinafter defined) of the Company, Xxxxx shall receive an amount
equal to two (2) years base salary hereunder, provided, however, that the amount
Xxxxx shall receive pursuant to this Section 5.3(e) shall be increased by two
(2) additional months of base salary on each anniversary of his employment with
the Company hereunder and under the Prior Agreement. Payments to Xxxxx under
this Section 5.3(e) shall be made in approximately equal monthly installments
over a period of one (1) year (the "Payment Term") and shall be net of all
applicable taxes that are required to be withheld. In such event, Xxxxx shall be
treated as an employee for the period during which he is receiving payments
under this Section 5.3(e), and shall be entitled to receive fringe benefit under
Section 4.2 for the duration of such period. Xxxxx shall be subject to the
covenant not to complete set forth in Section 9 hereof during the Payment Term.
A "Change of Control" of the Company shall mean the
occurrence of an event which would be required to be reported by the Company in
response to Items 1 or 2 of Form 8-K under the Securities & Exchange Act of
1934, as amended.
(f) Any and all amounts payable to Xxxxx pursuant to
this Section 5.3 following termination of this Agreement shall be secured by a
lien on, and security interest in, any and all intellectual property of the
Company, whether now owned or hereinafter acquired, including, without
limitation, business and product concepts, service marks, trademarks, patents,
proprietary systems and
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technology and software, copyrights, graphic designs and user interfaces, upon
the terms and conditions set forth in the Collateral Assignment of Patents and
Trademarks between the Company and Xxxxx executed in connection herewith (the
"Assignment Agreement"). The Company represents and warrants that the foregoing
assets shall be free and clear of all liens and encumbrances as of the date of
the execution of this Agreement. The Company further agrees that it will not
pledge, collateralize, or take any actions that would encumber these assets
without first obtaining the prior written consent of Xxxxx.
6. Indemnification.
(a) The Company shall indemnify Xxxxx and shall save and hold
Xxxxx harmless from, against, for, and, in respect of any and all damages,
losses, obligations, deficiencies, costs and expenses, including, without
limitation, reasonable attorneys' fees and other costs and expenses, incident
to, or arising out of any threatened, pending or completed suit, action, claim
or proceeding, whether civil, criminal, administrative or investigative,
suffered, incurred or required to be paid by Xxxxx by reason of being a
director, officer, employee or agent of the Company or by reason of service at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise (whether or
not Xxxxx continues to be a director, officer, employee or agent of the Company
or such corporation, partnership, joint venture, trust or other enterprise at
the time such action, suit or proceeding is brought or threatened) if Xxxxx'x
act or omission was taken or made in good faith and in a manner reasonably
believed to be in or not inconsistent with the best interests of the Company;
provided, that such act or omission did not constitute gross negligence, willful
misconduct or fraud. The foregoing right of indemnification shall be in addition
to any rights to which Xxxxx may otherwise be entitled and shall inure to the
benefit of Xxxxx'x heirs, executors or administrators. The Company shall pay the
expenses incurred by Xxxxx in defending any action, suit or proceeding, upon
receipt of an undertaking by Xxxxx to repay such payment if there shall be a
final adjudication or determination that it is not entitled to indemnification
as provided herein.
(b) During the term of this Agreement, the Company shall
maintain appropriate levels, as determined by the Board of Directors, of
Directors and Officers liability insurance.
7. Company Property. All materials, information and data of any kind
furnished by the Company to Xxxxx or developed by Xxxxx on behalf of the Company
or at the Company's direction or for the Company's use or otherwise in
connection with Xxxxx'x employment hereunder, are and shall remain the sole and
confidential property of the Company. In the event that the Company requests the
return of such materials at any time during the term of this Agreement or at or
after the termination of this Agreement, Xxxxx shall immediately deliver such
material to the Company.
8. Confidentiality. During the term of this Agreement and at all times
thereafter, Xxxxx shall not use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any
person or entity other than the Company, any material referred to in Section 7
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above or any information regarding the business methods or policies, procedures,
techniques, projects, trade secrets or other confidential knowledge relating to
the Company, its business or activities, except for such materials, information
and knowledge which is generally available to the public other than by reason of
its disclosure by Xxxxx or which were available, or becomes available, to Xxxxx
on a non-confidential basis prior to its disclosure to him by the Company.
9. Non-Compete. During the term of this Agreement and for one (1) year
thereafter (or the Severance Period in the case of Xxxxx'x termination by the
Company without cause or the For Cause Severance Period in the case the
termination of Xxxxx'x employment by Xxxxx for cause pursuant to Section 5.2
hereof), Xxxxx agrees that he shall not (a) engage or be interested in or
receive any compensation from any business that directly competes with the
Company or its affiliates or (b) induce or attempt to induce any employee, agent
or customer of the Company or any of its affiliates to terminate or reduce the
scope of his, her or its relationship with the Company or one of its affiliates.
For the purposes of this Agreement, Xxxxx shall be deemed to be interested in a
business if he is engaged or interested in that business as a stockholder,
director, officer, employee, salesman, sales representative, agent, broker,
partner, individual proprietor, lender, consultant or otherwise, but not if that
interest is limited solely to the ownership of five percent (5%) or less of any
class of the equity or debt securities of a corporation whose shares are listed
for trading on a national securities exchange or traded in the over-the-counter
market. Xxxxx shall not, directly or indirectly, engage in any other business
enterprise, or have an interest, financial or otherwise, in any other business
enterprise which interferes or is likely to interfere with Xxxxx'x employment
hereunder.
10. Equitable Relief. Xxxxx acknowledges and agrees that the Company
may seek to enforce the covenants and restrictions pertaining to his obligations
in Sections 7, 8 and 9 hereof at law or in equity. The covenants and
restrictions pertaining to Xxxxx'x obligations in Sections 7, 8 and 9 hereof
shall remain in full force and effect, notwithstanding the fact that this
Agreement has been terminated. If a court determines that the restrictions in
Section 9 are too broad or otherwise unreasonable under applicable law,
including with respect to time or geographical scope, the court is hereby
requested and authorized by the parties hereto to revise the foregoing
restrictions to include the maximum restriction allowable under the applicable
law. If Xxxxx violates any of the restrictions contained in Section 9, the
restrictive period shall not run in favor of Xxxxx from the time of the
commencement of any such violation until such time as such violation shall be
cured by Xxxxx to the satisfaction of the Company.
11. Prior Agreements. Xxxxx represents and warrants to the Company that
there are no restrictions, agreements or understandings of any kind whatsoever
to which Xxxxx is a party, or by which he is bound, which would inhibit, prevent
or make unlawful his execution or performance of this Agreement, and that his
execution and performance of this Agreement shall not constitute a breach of any
contract, agreement or understanding, whether oral or written, to which he is a
party or by which he is bound.
12. Acknowledgment. Xxxxx hereby acknowledges and certifies that he has
read the terms of this Agreement, that he has been informed by the Company that
he should discuss it with an attorney of his choice, and that he understands it
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terms and effects. Xxxxx further acknowledges that based on his training and
experience, he has the capacity to earn a livelihood by performing services as
an employee or otherwise in a business that does not violate the provisions of
Section 9. Neither the Company, Xxxxx nor their respective agents,
representatives or attorneys have made any representations to the other
concerning the terms or effects of this Agreement other than those contained
herein.
13. Assignment. Without the prior written consent of the Company, Xxxxx
shall have no right to exchange, convert, encumber or dispose of his rights to
receive benefits and payments under this Agreement, which payments, benefits and
rights thereto are non-assignable and non-transferrable. In the event of any
attempted assignment or transfer, Xxxxx shall forfeit his rights to receive any
payments or benefits, and the Company shall have no further liability under this
Agreement.
14. Entire Agreement. This Agreement together with the Assignment
Agreement constitutes the entire understanding between the parties with respect
to the subject matter contained herein and supersedes any prior understandings
and agreements between them respecting such subject matter. Specifically, by
executing this Agreement, the Prior Agreement shall become null and void and any
rights and obligations existing thereunder shall cease.
15. Headings. The headings describing the provisions of this Agreement
are for convenience of reference only, and shall not affect its interpretation.
16. Severability. If any provision of this Agreement is held illegal,
invalid or unenforceable, such illegality, invalidity, or unenforceability shall
not affect any other provision hereof. Such provision and the remainder of this
Agreement shall, in such circumstances, be modified to the extent necessary to
render enforceable the remaining provisions hereof.
17. Notices. All notices shall be in writing and shall be deemed to
have been given if presented personally, sent by recognized national overnight
carrier, or sent by certified or registered mail, postage prepaid, return
receipt requested, to the following addressees:
If to the Company:
NETVALUE, INC.
Xxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
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With a copy to:
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esquire
If to Xxxxx:
XXXXXXX X. XXXXX
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Notice of any change in such addresses shall also be given in
the manner set forth above. Whenever the giving of notice is required, the
giving of such notice may be waived by the party entitled to receive such
notice.
18. Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall constitute one and the same instrument.
19. Waiver. The failure of either party to insist upon strict
performance of any of the terms or conditions of this Agreement shall not
constitute a waiver of any of its rights hereunder.
20. Successors and Assigns. This Agreement binds, inures to the benefit
of, and is enforceable by Xxxxx and his heirs and personal representatives, and
the Company and its successors and permitted assigns, and does not confer any
rights on any other persons or entities. The duties, obligations, rights and
responsibilities of Xxxxx under this Agreement are personal and shall not be
assigned by Xxxxx without the prior written consent of the Company, as set forth
in Section 7 hereof.
21. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
22. Amendments. This Agreement may be amended and supplemented only by
a written instrument duly executed by both parties.
23. Joint Participation in Drafting. Each party to this Agreement
participated in the drafting of this Agreement. As such, the language used
herein shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any party to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and date first above written.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
XXXXXXX X. XXXXX
NETVALUE, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Director
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EXHIBIT A TO XXXXXXX X. XXXXX
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
NETVALUE, INC. (the "Company") hereby grants to XXXXXXX X. XXXXX (the
"Optionee") an option to purchase shares of Common Stock (the "Shares") of the
Company, at the price set forth herein subject to the terms set forth herein,
and in all respects subject to the terms and provisions of the netValue, Inc.
1996 Non-Qualified Stock Option Plan (as amended, the "Plan"), which terms and
provisions are hereby incorporated by reference herein. This Amended and
Restated Non-Qualified Stock Option Agreement (this "Agreement") amends and
restates and makes null and void the Non-Qualified Stock Option Agreement, dated
September 19, 1996, between the Company and the Optionee, and any and all
Options granted thereunder (collectively, the "Prior Option Agreement"). Unless
the context herein otherwise requires, the terms defined in the Plan shall have
the same meanings herein.
1. Nature of the Option. This Option is intended to be a nonstatutory
stock option and is not intended to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or to otherwise qualify for any special tax benefits to the Optionee.
2. Date of Grant; Term of Option. This Option is granted as of
September 19, 1996 and, subject to the specific terms contained herein, may not
be exercised later than the fifth anniversary of each Vesting Event (as
hereinafter defined) with respect to such Option.
3. Option Exercise Price and Vesting. Subject to the terms and
conditions herein set forth and set forth in the Plan, the Company hereby grants
to Optionee an option to purchase an aggregate number of Shares of the Company
at the option price as follows:
(a) An option to purchase a total of 268,000 Shares, of which
(i) 110,000 shall have an exercise price of $.63 per share, 60,000 of which
vested and were fully exercisable as of September 19, 1996, and 50,000 of which
have vested and were fully exercisable as of September 19, 1997, and (ii)
158,000 shall have an exercise price of $.80 per share, all of which have vested
and were fully exercisable as of September 19, 1997.
(b) An option to purchase a total of 632,000 Shares at the
exercise prices set forth below. This Option shall vest and become exercisable
in annual installments, the Optionee having the right hereunder to purchase from
the Company, on and after the following dates (each such vesting period being
hereinafter referred to as a "Vesting Year" and each such date being hereinafter
referred to as a "Vesting Event"), the following number of Shares:
September 19, Shares Exercise Price
------------- ------ --------------
1998 158,000 $4.00
1999 158,000 $5.00
2000 158,000 $6.00
2001 158,000 $7.00
(c) Notwithstanding the vesting and exercisability of any
Option granted hereunder, without the prior written consent of the Company,
Optionee may not sell, transfer, gift, pledge, hypothecate, assign or otherwise
dispose of any Shares issuable thereunder or any right or interest therein
granted under this Section 3, whether voluntary, by operation of law or
otherwise, prior to September 19, 1998.
(d) In the event that the Optionee's employment with the
Company is terminated:
(i) (A) by the Company for cause (other than death or
disability) as set forth in Section 5.1 of Optionee's Employment Agreement or
(B) by the Optionee without cause (including his resignation), then Optionee
shall be entitled, for a period of two (2) years from the effective date of such
termination, to exercise all Options which have vested and become exercisable
pursuant to the provisions of Section 3 hereof prior to the effective date of
such resignation. All Options not so exercised shall terminate.
(ii) (A) by the Company without cause or (B) by the
Optionee for cause pursuant to Section 5.2 of the Employment Agreement or (C) by
reason of the Optionee's death or disability, the Optionee (or, in the case of
Optionee's death, the Optionee's estate or a person who acquired the right to
exercise this Option by bequest or inheritance, or, in the case of disability,
by the Optionee or his legal guardian or representative, as applicable) shall be
entitled, for a period of five (5) years from the effective date of such
termination (the "Post-Termination Exercise Period"), to exercise all Options
granted to Optionee in Section 3 hereof, provided that the Optionee agrees to
forbear from terminating his employment for cause pursuant to Section 5.2 of the
Employment Agreement based on the Company's failure to maintain appropriate
levels of director and officer liability insurance, until the earlier of March
31, 1998 or 30 days after the Company's successful completion of an initial
public offering of any class of its equity securities (an "IPO"). All Options
not so exercised shall terminate.
(iii) by the Company or the Optionee following a
Change of Control (as such term is defined in the Plan), all unvested and
unexercisable Options, granted pursuant to Section 3 hereof, shall immediately
vest and become exercisable during the Post-Termination Exercise Period. All
Options not so exercised shall terminate.
(iv) the Company shall be obligated to file and cause
to become effective, within twelve (12) months after the effective date of such
termination, a registration statement on
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Form S-8 with the SEC covering the public resale of any and all Shares issuable
upon the exercise of all Options which have vested and become exercisable
pursuant to the provisions of this Section 4.
4. Exercise of Option. This Option shall be exercisable during its term
only in accordance with the terms and provisions of the Plan and this Option as
follows:
(a) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise this Option, the
number of Shares in respect to which this Option is being exercised and such
other representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company hereunder or pursuant
to the provisions of the Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Secretary
of the Company or such other person as may be designated by the Company. The
written notice shall be accompanied by payment of the purchase price along with
any other agreements as the Company may require. Payment of the purchase price
shall be by check or such consideration and method of payment authorized by the
Board pursuant to the Plan. The certificate or certificates for the Shares as to
which the Option shall be exercised shall be registered in the name of the
Optionee and shall be legended as required under this Agreement, the Plan,
and/or applicable law.
(b) Restrictions on Exercise. This Option may not be exercised
if the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of this Option, the Company may require the Optionee
to make any representation and warranty to the Company as may be required by any
applicable law or regulation, provided that such representation and warranty
shall not alter Optionee's right to sell any of the Shares, subject, however, to
customary and reasonable holdbacks in connection with any public sale of the
Company's Common Stock as reasonably required by the Company's underwriter(s).
5. Investment Representations. Unless the Shares have been registered
under the Securities Act, in connection with the acquisition of this Option, the
Optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise
of this Option, he will be acquiring the Shares for investment for his own
account, not as a nominee or agent, and not with a view to, or for resale in
connection with, any distribution thereof.
(b) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or controlling
personal and by reason of his business or financial experience, has, and could
be reasonably assumed to have, the capacity to protect his interests in
connection with the acquisition of this Option and the Shares.
6. Forfeiture of Option. Notwithstanding any other provision of this
Option, if it is
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finally determined by a court of competent jurisdiction or other tribunal or
panel having jurisdiction over such dispute that the Optionee (i) has disclosed
trade secrets or confidential information of the Company in contravention of
Section 8 of Optionee's Employment Agreement, or (ii) has breached any agreement
with the Company in respect of confidentiality, nondisclosure, noncompetition or
otherwise, all unexercised Options shall terminate as of the date of such
determination. In the event of such a determination, in addition to immediate
termination of all unexercised Options, the Optionee shall forfeit all Option
shares for which the Company has not yet delivered share certificates to the
Optionee and the Company shall refund to the Optionee the Option price paid to
it. Notwithstanding anything to herein to the contrary, the Company may withhold
delivery of share certificates pending the resolution of any inquiry that could
lead to a determination resulting in forfeiture.
7. Continuation of Employment or Engagement. Neither the Plan nor this
Option shall confer upon Optionee any right to continue in the service of the
Company or limit, in any respect, the right of the Company to discharge the
Optionee at any time in accordance with the terms of Optionee's Employment
Agreement.
8. Withholding. The Company reserves the right to withhold, in
accordance with any applicable laws, from any consideration payable to Optionee
any taxes required to be withheld by federal, state or local law as a result of
the grant or exercise of this Option or the sale or other disposition of the
Shares issued upon exercise of this Option. If the amount of any consideration
payable to the Optionee is insufficient to pay such taxes or if no consideration
is payable to the Optionee, upon the request of the Company, the Optionee (or
such other person entitled to exercise the Option pursuant to Section 3(c)
hereof) shall pay to the Company an amount sufficient for the Company to satisfy
any federal, state or local tax withholding requirements it may incur, as a
result of the grant or exercise of this Option or the sale or other disposition
of the Shares issued upon the exercise of this Option.
9. The Plan. This Option is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan as
such Plan may be amended from time to time in accordance with the terms thereof.
Pursuant to the Plan, the Board of Directors of the Company is authorized to
adopt rules and regulations not inconsistent with the Plan as it shall deem
appropriate and proper. A copy of the Plan in its present form is available for
inspection during business hours by the Optionee or the persons entitled to
exercise this Option at the Company's principal office.
10. Entire Agreement. This Agreement, together with the Plan and the
other exhibits attached thereto or hereto, represents the entire agreement
between the parties and supersedes and makes null and void the Prior Option
Agreement.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware.
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12. Amendment. Subject to the provisions of the Plan, this Agreement
may only be amended by a writing signed by each of the parties hereto.
DATE: December 19, 1997 NETVALUE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Director
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ACKNOWLEDGMENT
The Optionee acknowledges receipt of a copy of the Plan, a copy of
which is attached hereto, and represents that he has read and is familiar with
the terms and provisions thereof, and hereby accepts this Option subject to all
of the terms and provisions thereof. The Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board of
Directors or the Committee upon any questions arising under the Plan. In
addition, the Optionee acknowledges that this Amended and Restated Non-Qualified
Stock Option Agreement supersedes and makes null and void the Prior Option
Agreement.
DATE:______________________ ___________________________________
Optionee: XXXXXXX X. XXXXX
____________________________________
Address
____________________________________
City, State, Zip
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON THE EXERCISE
OF THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE, TRANSFER OR DISTRIBUTION THEREOF. NO SUCH SALE,
TRANSFER OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATING THERETO OR A SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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