VACATION EMPORIUM CORPORATION
STOCK OPTION AGREEMENT
(Executive - Non-Qualified)
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Optionee Name: Xxxxx XxXxxxxx
Optionee Address: 000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Number of Shares of Exercise Price
Common Stock: 351,282 per Share: US $3.50
Date of Grant: July 30, 1999
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STOCK OPTION AGREEMENT (this "Agreement") made as of the Date of
Grant set forth above (the "Date of Grant"), between VACATION EMPORIUM
CORPORATION, a Nevada corporation (the "Company"), and the Optionee identified
above ("Optionee"), residing at the address set forth above.
WHEREAS, the Optionee is an executive officer of the Company; and
WHEREAS, pursuant to the Company's 1996 Compensatory Stock Option
Plan (the "Plan"), the Company desires to grant a stock option to Optionee to
purchase certain shares of its common stock, par value $.001 per share (the
"Common Stock"); and
WHEREAS, this Agreement consists of this Agreement and the Plan
attached hereto as Exhibit A;
NOW, THEREFORE, the Company and the Optionee hereby agree as
follows:
W I T N E S S E T H:
1. Definitions. In this Agreement, except where the context
otherwise indicates, the following definitions apply:
1.1 Terms defined in the Plan shall have the same meanings
when used herein as defined therein.
1.2 The term "Option" shall have the meaning set forth in
Section 3 hereof.
1.3 The term "Optionee" when used herein shall include the
Optionee's legal representative when the context requires.
1.4 The term "Plan Administrator" shall have the same meaning
as "Compensation Committee" as set forth in the Plan.
2. Representations, Warranties and Acknowledgements of the Optionee.
2.1 The Optionee's address set forth above is his or her true
and correct residence.
2.2 The Optionee has had an opportunity to ask questions and
receive answers from the officers and directors of the Company, or a person or
persons acting on its behalf, concerning the terms and conditions of this
Agreement and the business and affairs of the Company. The Optionee has a
sufficient business and personal relationship with one or more of the officers
and directors of the Company, and has sufficient business or financial
experience, so as to be able to protect his or her own interests in connection
with the issuance of the Option (as hereinafter defined) and the issuance of any
Common Stock upon any exercise of the Option.
2.3 The Optionee acknowledges that the Option and the Common
Stock to be issued upon the exercise of the Option, if any, are speculative
investments and involve a substantial degree of risk of loss by the Optionee.
The Optionee represents and warrants to the Company that he or she is acquiring
the Option, and the Common Stock to be issued upon the exercise of the Option
(if the Option is exercised), solely for investment purposes and not with a view
towards distribution or transfer. The Optionee acknowledges that the Option may
or may not be of any value, based on numerous circumstances and conditions, many
of which may be beyond the control of Optionee.
2.4 The Optionee acknowledges that the Option and the Common
Stock to be issued upon the exercise of the Option constitute a part of the
Optionee's compensation arrangement with the Company.
2.5 The Optionee confirms that neither the Company nor any
officer, director or representative thereof has made any representation,
prediction, or forecast as to the value or possible future value of the Option
or the Common Stock. The Optionee has not been induced to accept the Option by
any representation or promise by or on behalf of the Company.
2.6 The Optionee has had an opportunity to consult with his or
her legal, tax and investment advisors, to the extent the Optionee deems
necessary, concerning the Option.
2.7 This Agreement consists of this document and the terms and
provisions contained in the Plan, as it may be amended from time to time, which
are hereby incorporated by reference herein and made a part hereof. Unless
otherwise expressly stated herein, in the case of any conflict or inconsistency
between the terms of this document and the terms of the Plan, the terms of the
Plan shall control.
2.8 The Optionee acknowledges that the Option and the shares
of Common Stock to be issued upon exercise thereof have not been registered
under the Securities Act of 1933, as amended (the "Act"), in reliance on an
exemption from registration contained in Section 4(2) of the Act based, in part,
on the representations and warranties made by the Optionee hereunder. Optionee
agrees that the certificates evidencing the shares of Common Stock acquired by
him or her upon exercise of all or part of the Option may bear a restrictive
legend, if appropriate, indicating that the shares have not been registered
under the Act and are subject to restrictions on the transfer thereof.
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3. Grant of Option. The Company, subject to the terms of the Plan,
hereby grants to the Optionee as of the Date of Grant, as a matter of separate
inducement and agreement and not in lieu of salary or other compensation for
services, a non-qualified stock option (the "Option") to purchase in the
aggregate the number of shares of the Common Stock of the Company set forth in
the box on the first page hereof (the "Shares"). Optionee understands that the
Option granted under this Agreement is not intended to and will not qualify for
special tax treatment under Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
4. Exercise Price. The exercise price (the "Exercise Price") of the
Option is the amount per share set forth in the box on the front page hereof,
subject to adjustment as provided in Section 9 of the Plan.
5. Option Non-Transferable. The Option shall not be transferable by
the Optionee otherwise than by will, or by the laws of descent and distribution,
and shall be exercised during the lifetime of the Optionee only by the Optionee.
Neither the Option nor any interest therein may be transferred, sold, assigned,
pledged or hypothecated by the Optionee during the Optionee's lifetime, whether
by operation of law or otherwise, or be made subject to execution, attachment or
similar process.
6. Exercisability of Option. The Option shall not be exercisable and
none of the Shares may be purchased until (i) the three (3) month anniversary
(the "Exercise Date") following the six (6) month anniversary of the date of
closing of the Company's acquisition of Wall Street Strategies, Inc. (the
"Condition Date") and (ii) the fulfillment of the express condition that the
website to be created for the Company has, as of the Condition Date, become
capable of efficient and immediate delivery of information to subscribers
thereto (the "Condition"). On the Exercise Date, provided that the Condition has
been fulfilled on or prior to the Condition Date, and thereafter, during the
term of the Option, the Option shall be and become exercisable as follows: on
and after the Exercise Date, the Optionee may purchase up to one-sixth (1/6) of
the Shares; and on and after each of the six (6) month, nine (9) month, twelve
(12) month, fifteen (15) month and eighteen (18) month anniversaries of the
Condition Date, the Optionee may purchase up to an additional one-sixth (1/6) of
the Shares, so that upon expiration of eighteen (18) months after the Condition
Date, and thereafter during the term of the Option, Optionee will have become
eligible to purchase all of the Shares. The foregoing right to exercise the
Option is subject to the provisions of Section 8 and 9 hereof.
7. Exercise of Option. The Option may be exercised only in
accordance with the provisions of the Plan. In no event may the Option or any
part thereof be exercised after the expiration of five (5) years from the date
hereof. Payment of the Exercise Price, for each of the Shares purchased by
Optionee, shall be delivered in full to the Company at the time of exercise, in
accordance with the terms and provisions of Section 7 of the Plan. None of the
Shares that are exercised by Optionee shall be issued until full payment is made
therefor, except in the case of, with prior approval of the Plan Administrator,
election by Optionee of an Option Exchange in accordance with the terms and
provisions of subsection 7(e) of the Plan and any requirements and procedures
the Plan Administrator may require. No shares of Common Stock may be tendered in
exercise of this Option if such shares were acquired by Optionee through the
exercise of an Incentive Stock Option, unless (a) such shares have been held by
Optionee for at least one (1) year, and (b) at least two (2) years have elapsed
since such Incentive Stock Option was granted. The Option may be exercised
before or after the exercise of any other options granted to the Optionee under
the Plan or any of the Company's other stock option programs or compensation
plans.
8. Termination of Option. Subject to the terms hereof, all rights of
the Optionee in and to the Option, to the extent that they have not been
exercised, shall terminate on the
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date which is the fifth annual anniversary of the Date of Grant or, if sooner,
thirty (30) days after the Optionee's termination as an employee of the Company
for any reason, including voluntary resignation. Notwithstanding the foregoing,
in the event of the death of Optionee while employed by the Company and in the
event of termination of employment of Optionee by reason of disability (within
the meaning of Section 22(e)(3) of the Code), the Option, to the extent of the
applicable portion thereof which is exercisable as of such date, may be
exercised solely within one (1) year after death or ninety (90) days after the
termination of employment by reason of disability.
9. Death of Optionee. The Option granted hereunder and outstanding
on the date of Optionee's death may be exercised, to the extent otherwise
exercisable, by Optionee's personal representative or his or her transferees by
will or intestate distribution at any time prior to the termination of such
Option pursuant to Section 8 above. The Plan Administrator may require an
indemnity and/or such evidence or other assurances as it may deem necessary in
connection with an exercise by a legal representative, guardian, or beneficiary.
10. Fraud, Dishonesty, or Similar Acts. Notwithstanding anything
contained herein to the contrary, if it is determined by the Plan Administrator
that fraud, dishonesty, or similar acts were committed by Optionee at any time
while in the employ of the Company, or that Optionee has at any time disclosed
to any person, firm, corporation or other entity any of the Company's
"proprietary information" (defined below) without the express written consent of
the Board of Directors or except as such disclosure may have been required in
connection with the Optionee's service as a member of the Board of Directors of
the Company, all option and other rights with respect to all Option(s) granted
to Optionee hereunder shall immediately terminate and be null and void. For the
purposes of this Section 10, the term "proprietary information" shall mean all
confidential or secret customer lists, prospective customer lists, trade
secrets, processes, computer programs, object codes, source codes, inventions,
improvements, manufacturing or systems techniques, formulas, development or
experimental work, work in process, business, data disclosed to the Company by
or for the benefit of the Company's customers, information relating to the
Company's business contracts (including without limitation contracts with
service providers, medical insurers and claims administrators), marketing and
competitive strategies, and any other secret or confidential matter relating or
pertaining to the products, services, sales or other business of the Company.
11. Reserve. The Company shall at all times during the term of the
Option reserve such number of shares of its Common Stock as will be sufficient
to satisfy the requirements of this Agreement.
12. Withholding Taxes. The Optionee acknowledges that it is a
condition to the obligation of the Company to deliver the Shares, upon the
exercise of the Option, to pay the Company such amount, if any, as may be
requested by the Company for the purpose of satisfying any liability for any
federal, state or local income, or other taxes required by law to be withheld
with respect to such delivery; provided that the Optionee may elect, in
accordance with applicable law, to pay a portion or all of such withholding
taxes in shares of Common Stock held by the Optionee for at least six (6) months
and the Optionee hereby authorizes the Company to withhold and agrees to
surrender back to the Company, on or about the date such withholding tax is
determinable, shares previously owned by the Optionee or a portion of the shares
that were or otherwise would be distributed to the Optionee pursuant hereto so
qualifying and having a fair market value equal to the amount of such
withholding taxes to be paid in shares.
13. No Right to Continued Employment. Nothing contained herein shall
be construed to require the Company to continue to employ the Optionee for any
particular period of time and the Optionee shall not be deemed to have any right
to continued employment or to employment for any particular period of time by
virtue hereof.
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14. Governing Law. The Plan, this Agreement and all action taken
under each shall be governed, as to construction and administration, by the laws
of the State of Nevada.
IN WITNESS WHEREOF, the Company and the Optionee have duly executed
this Agreement as of the day and year first above written.
ATTEST: VACATION EMPORIUM CORPORATION
/s/ Xxxxxx Xxxxx By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
Title: Chairman
ACCEPTED AND AGREED:
/s/ Xxxxx XxXxxxxx
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Xxxxx XxXxxxxx
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