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EXHIBIT 4.1
INFORMATION ARCHITECTS CORPORATION
AMENDED AND RESTATED
NON-STATUTORY STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED NON-STATUTORY STOCK OPTION AGREEMENT ("Option
Agreement") is effective as of December 23, 1999 ("Effective Date") is between
Information Architects Corporation, a North Carolina corporation (the "Company")
with a principal place of business at 0000 Xxxxxx Xxxx, Xxxxxxxxx, XX 00000, and
Xxxxx Xxxxxxxx having an address at (the "Optionee") having an address 00
Xxxxxxxxx Xxxxxx #000, Xxxxxxxxx, XX 00000. This Option Agreement amends and
restates the prior option awards between the Optionee and the Company ("Prior
Awards"). In consideration of the mutual covenants herein, the adequacy and
delivery of which are hereby acknowledged, the Company and Optionee agree as
follows:
1. Grant of Option. The Company grants to the Optionee the following
options ("Options")
A. Initial Options. Initial Options to purchase 10,000 shares of
Company's Common Stock, par value $.001 per share, ("Share(s)") at an
exercise price per Share of $1.28 on November 10, 1999 ("Initial Grant
Date"); and
B. Additional Options. Additional Options to purchase 13,500 Shares at
an exercise price per Share of $6 on December 23, 1999 ("Additional
Grant Date");
Each Options shall expire and not be exercisable after the expiration
date of each Options as set forth in Paragraph 3 below.
2. Vesting of Options. The Initial Options shall vest and become
exercisable on November 10, 1999 and the Additional Options shall vest and
become exercisable on April 15, 2000, provided that the Optionee shall be
entitled to exercise the same, in whole or part, after it shall vest and become
exercisable, at any time prior to the expiration of the term thereof.
Notwithstanding the foregoing, the Options shall become vested and fully
exercisable five (5) days prior to the consummation of a "Change of Control" (as
defined in Section 9 hereof), subject to earlier expiration or termination as
otherwise provided in this Option Agreement.
3. Expiration Date. The term of the Options shall commence on the
Initial Grant Date and Additional Grant Date, respectively and terminate three
(3) years thereafter, respectively.
4. Rights Upon Death or Disability. If the Optionee suffers death or
becomes disabled and as of the date of such death or disability any portion of
the Options that is vested and exercisable remains unexercised, then the
unexercised option of the Options may be exercised at any time during the one
(1) year period following the Optionee's death or disability. Thereafter, to the
extent not exercised, the Options and all rights thereunder (other than the
Optionee's right to Shares theretofore purchased under the Options) shall
terminate and become null and void immediately. The Options of a deceased or
disabled Optionee may be exercised by (i) one or more persons as the Optionee
may designate as primary or contingent beneficiary in a writing delivered to the
Company or, (ii), if there is no such valid designation in effect at the
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Optionee's death or disability, the Optionee's spouse or, (iii) if the Optionee
is not married at the date of the Optionee's death or disability, the Optionee's
estate.
5. Rights Upon Termination or Expiration of Services Agreement.
5.1 Rights Upon Termination of Services Agreement Prior to Vesting.
Unless arising out a Change of Control, if the Optionee's Services Agreement,
dated November 10, 1999 ("Services Agreement") is terminated or expires for any
reason prior to the Options vesting date set forth in accordance with Paragraph
2, the Options and all rights held by the Optionee shall immediately terminate
and be null and void.
5.2 Rights Upon Termination of Services Agreement After Vesting. If an
Optionee's Services Agreement is (a) terminated by Optionee for a default under
the Services Agreement or (b) expires for any reason, other than by death or as
set forth below, and as of such date the Optionee has not exercised the Options
as to the Shares which have vested on such date, the Options may be exercise by
the Optionee with respect to such vested Shares for a period of three (3) months
from the date of the termination by Optionee or expiration of the Services
Agreement ,as applicable.. Thereafter, to the extent not exercised, the Options
and all rights thereunder (other than the Optionee's rights to Shares
theretofore purchased under the Options) shall terminate and become null and
void immediately. Notwithstanding anything to the contrary herein, if an
Optionee's Services Agreement is terminated by Company for Optionee's default
under the Services Agreement, and as of such date, the Optionee has not
exercised the Options as to the Shares which have vested on such date, the
Options and all rights thereunder (other than the Optionee's rights to Shares
theretofore purchased under each Options) shall terminate and become null and
void immediately.
6. Method of Exercise. The Options shall be exercised by the tender of
cash, shares of Common Stock already owned by Optionee, or a combination of cash
and shares of Common Stock, acceptable to the Company, and delivery to the
Company at its principal place of business of a written notice of exercise. The
written notice must:
(a) state the election to exercise the Options, the number of
whole Shares with respect to which the Options is being exercised (which may not
be less than one hundred (100) Shares, unless the number being exercised is the
balance of the number of Shares that may be exercised under each Options), and
the name, address, and social security number of the person in whose name the
stock certificate or certificates for such Shares is to be registered;
(b) contain any such representation and agreements as to
Optionee's investment intent with respect to such Shares as shall be required by
the Company; and
(c) be signed by the person entitled to exercise the Options,
and if the Options is being exercised by any person or persons other than the
Optionee, be accompanied by proof, satisfactory to the Committee, of the right
of such person or persons to exercise the Options.
7. Non-Assignability. The Options may not be transferred (otherwise
than by will or the laws of descent and distribution), assigned, pledged,
hypothecated, or otherwise encumbered in any way or be the subject to
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execution, attachment, or similar process. Upon any attempt to so transfer,
assign, pledge, hypothecate, or encumber the Options, or upon levy, hereof, such
Options shall become null and void. During an Optionee's lifetime, the Options
may be exercised only by Optionee, or by Optionee's guardian or legal
representative. If each Options is transferred by will or by the laws of descent
and distribution, the provision of this Agreement, including the restrictions on
transferability, shall apply to the Optionee's successor, including the
executor, administrator, or trustee of Optionee's estate.
8. Delivery of Certificates. The Optionee shall not be entitled to the
privileges of stock ownership of any Shares subject to the Options until payment
therefor has been made in full as provided in the Option Agreement. The Optionee
is responsible for compliance with applicable tax laws regarding the Options.
The Options may be exercised and certificates for Shares may be delivered
hereunder only in compliance with all applicable federal and state laws and
regulations. Any Share certificate issued to evidence Shares exercised under the
Options may bear legends and statements the Company deems advisable to assure
compliance with federal and state laws and regulations and this Option
Agreement. The Company may delay delivery of any certificates for Shares
acquired under this Options until (i) the admission of such Shares for listing
on any stock exchange or market system on which the Company's Common Stock may
then be listed, or (ii) the completion of any registration or other
qualification of such Shares under any state or federal law or regulation that
the Company shall determine as necessary or advisable.
9. Change of Control. For purposes of this Option Agreement, a Change
of Control shall mean the earliest date on which either of the following events
shall occur: (i) an individual, entity, or group shall acquire or own, other
than as a result of acquisitions, grants, or transfers directly from the
Company, beneficial ownership of 50% or more of the outstanding Common Stock or
voting power of the Company, provided that no such individual, entity, or group
shall be deemed to beneficially own any securities held by the Company or any of
its subsidiaries or by any employee benefit plan of the Company or any of its
subsidiaries; or (ii) the persons who were directors of the Company on the date
30 days after the Effective Date, together with those who subsequently became
directors of the Company and whose election, or nomination for election by the
Company's shareholders, was approved by the vote of at least a majority of the
directors who were directors on the date 30 days after the Effective Date, or
directors whose nomination or election was approved as provided above (the
"Continuing Directors"), shall cease to constitute a majority of the Board or of
its successor by merger, consolidation, or sale of assets. However, a majority
of the Continuing Directors may approve any event described in Section 9.(i) and
determine that, for purposes of this Option Agreement, a Change of Control has
not occurred.
10. Binding Effect. This Option Agreement shall be binding upon the
heirs, executors, administrators, and successors of the parties hereto.
11. Applicable Law. This Option Agreement is last signed in North
Carolina and shall be construed under and the relationship between the parties
determined in accordance with the laws of the State of North Carolina applicable
to contracts made and to be performed in the State of North Carolina, without
regard to the conflicts of law rules thereof. .
12. Adjustment in Options. In the event of any merger, reorganization,
consolidations, recapitalization, dividend, spin-off or other change in
corporate structure affecting the Common Stock, other than a Change of Control
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as set forth herein, a substitution or adjustment shall be made in the aggregate
number of shares or kind of shares reserved for issuance under the Option
Agreement, in the number, option price and kind of shares subject to other
outstanding options granted under the Option Agreement as may be deemed to be
appropriate by the Company in its sole discretion, provided that the number of
shares subject to any award shall always be a whole number.
13. Limits on Liability. Any liability of the Company to the Optionee
or any other person with rights under this Option Agreement shall be based
solely upon contractual obligations created by this Option Agreement. Neither
the Company nor any member of the board of directors, nor any other person
participating in any determination of any question under the Option Agreement,
or in the interpretation, administration or application of the Option Agreement,
shall have any liability to any party for any actions taken or not taken, in
good faith under the Option Agreement and that do not constitute willful
misconduct. To the extent permitted by applicable law, the Company shall
indemnify and hold harmless each member of the board of directors from and
against any and all liability, claims, demands, costs, and expenses (including
the costs and expenses of attorneys incurred in connection with the
investigation or defense of claims) in any manner connected with or arising out
of any actions or inactions in connection with the administration of the Option
Agreement except for such actions or inactions which are not in good faint or
which constitute willful misconduct.
14. Entire Agreement. This Option Agreement constitutes the entire
agreement and understanding between Optionee and Company concerning the subject
matter hereof, and cancels, terminates and supersedes all prior written and oral
understandings, agreements, proposals, promises and representations of the
parties respecting any and all subject matter contained herein, including the
Prior Awards.. To the extent contemplated herein, the provisions of this Option
Agreement shall survive any exercise of each Option and shall remain in full
force and effect.
15. Effect on Services Agreement. Nothing in this Option Agreement
shall effect the rights and obligations of the Company and the Optionee under
the Services Agreement. This Option Agreement shall not be deemed to modify or
amend the Services Agreement in any way.
16 Miscellaneous. Any failure by the Company or the Optionee to insist
on strict compliance with any provision of, or to assert any right under, this
Option Agreement shall not be deemed to be a waiver of such provision or right
or any other provision or right under this Option Agreement. The Option
agreement shall be administered by the Company's board of directors. Any
controversy which arises under this Option Agreement shall be resolved by the
board of directors as it deems appropriate, and any decision of the board of
directors shall be final and conclusive. By signing below, the Optionee hereby
acknowledges receipt of a prospectus for the Option.
INFORMATION ARCHITECTS CORPORATION
By: /s/ XXXXXX X. XXXXXX
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OPTIONEE: /s/ Xxxxx Xxxxxxxx
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