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 and entered into as
of the date of grant set forth below ("Date of Grant") by and between
Accesspoint Corporation, a Nevada corporation ("Company"), and the optionee
named below ("Optionee") as contemplated in the Company's 1999 Stock Incentive
Plan ("Plan") to the extent applicable. Capitalized terms not defined herein
shall have the meaning ascribed to them in the Plan.
Optionee: Xxxxxx X. Xxxxxx
Social Security Number:
Address: 0000 Xxxxx Xxxxxxx, Xxxxxxx, XX 00000
Total Option Shares: 7,812
Exercise Price Per Share: $ 0.35
Date of Grant: April 3, 2001
First Vesting Date: See Section 3
Expiration Date for Exercise of Options: April 2, 2003
1
1. TRANSFER OF OPTION. The Company hereby consents to the assignment and
transfer of options (the "Option") from Xxx X. Xxxxxxxxx to Optionee to
purchase the total number of shares of Common Stock of the Company set
forth above (the "Shares") at the Exercise Price Per Share set forth
above (the "Exercise Price"), subject to all of the terms and
conditions of this Agreement and the Plan to the extent applicable. If
designated as an Incentive Stock Option above, the Option is intended
to qualify as an "incentive stock option" ("ISO") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"). Only Employees of the Company shall receive ISOs. This
Agreement shall be deemed a Grant Agreement as defined in the Plan. The
terms and conditions of the Plan are incorporated herein by this
reference.
2. EXERCISE PRICE. The Exercise Price for the above assigned Options shall
be thirty four cents ($0.35) each.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term in
accordance with the provisions of Section 8 of the Plan, to the extent
applicable, as follows:
(ii) (i) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise the
Option, the number of Shares in respect of which the Option is
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 the 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
relevant provisions of law and the requirements of any stock
exchange upon which the Shares may then be listed. Assuming
such compliance, for income tax purposes the Shares shall be
considered transferred to the Optionee on the date on which
the Option is exercised with respect to such Shares.
(iii) Adjustments, Merger, etc. The number and 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, this Option (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 this Option 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 this Option 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
2
immediately prior to such dissolution or liquidation, or
merger or consolidation, to exercise this Option 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. OPTIONEE'S REPRESENTATIONS. By receipt of this Option, by its
execution, and by its exercise in whole or in part, Optionee represents
to the Company that Optionee understands that:
(i) both this Option 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 4 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 Act of 1933, as amended (the
"Act") in reliance upon one or more specific exemptions
contained in the Act, which may include reliance on Rule 701
promulgated under the Act, if available, 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
Option is 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 Option;
(v) Optionee understands that the Shares subject to this Option,
in addition to other restrictions on transfer, must 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.
3
5. METHOD OF PAYMENT. Payment of the purchase price shall be made by cash,
check or, in the sole discretion of the Board at the time of exercise,
promissory notes or other Shares of Common Stock having a fair market
value on the date of surrender equal to the aggregate purchase price of
the Shares being purchased.
6. RESTRICTIONS ON EXERCISE. This Option 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 or other law or regulation. As a
condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may
be required by any applicable law or regulation.
7. DEATH OF OPTIONEE. In the event of the death of Optionee:
(i) this Option may be exercised, at any time within one (1) year
following the date of death by Optionee's estate or by a
person who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent of the right to
exercise that had accrued at the time of death of the
Optionee. To the extent that such estate or other person does
not exercise such Option (which such estate or person was
entitled to exercise) within the one (1) year time period
specified herein, the Option shall terminate; or
8. NON-TRANSFERABILITY OF OPTION. This Option 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 two (2)
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 7(i) in the circumstances set forth in such Section.
10. TAX CONSEQUENCES. The Optionee understands that any references to
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 have adverse tax consequences under
Federal, 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 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
responsible for the Optionee's own tax liability that may arise as a
result of the transactions contemplated by this Agreement.
11. 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.
4
12. DAMAGES. The parties agree that any violation of this Option (other
than a default in the payment of money) cannot be compensated for by
damages, and any aggrieved party shall have the right, and is hereby
granted the privilege, of obtaining specific performance of this Option
in any court of competent jurisdiction in the event of any breach
hereunder.
13. 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.
14. RESTRICTIONS. Notwithstanding anything herein to the contrary, Optionee
understands and agrees that Optionee shall not dispose of any of the
Shares, whether by sale, exchange, assignment, transfer, gift, devise,
bequest, mortgage, pledge, encumbrance or otherwise, except in
accordance with the terms and conditions of this Section 14, and
Optionee shall not take or omit any action which will impair the
absolute and unrestricted right, power, authority and capacity of
Optionee to sell Shares in accordance with the terms and conditions
hereof.
Any purported transfer of Shares by Optionee that violates any
provision of this Section 14 shall be wholly void and ineffectual and
shall give to the Company or its designee the right to purchase from
Optionee all but not less than all of the Shares then owned by Optionee
for a period of 90 days from the date the Company first learns of the
purported transfer at the Agreement Price and on the Agreement Terms
(as those terms are defined in subsections (vi) and (vii),
respectively, of this Section 14). If the Shares are not purchased by
the Company or its designee, the purported transfer thereof shall
remain void and ineffectual and they shall continue to be subject to
this Agreement.
The Company shall not cause or permit the transfer of any Shares to be
made on its books except in accordance with the terms hereof.
(i) Permitted Transfers.
(a) Optionee may sell, assign or transfer any Shares held
by the Optionee but only by complying with the
provisions of subsection (iv) of this Section 14.
(b) Optionee may sell, assign or transfer any Shares held
by the Optionee without complying with the provisions
of subsection (iv) by obtaining the prior written
consent of the Company's shareholders owning 50% of
the then issued and outstanding shares of the
Company's Common Stock (determined on a fully diluted
basis) or a majority of the members of the Board of
Directors of the Company, provided that the
transferee agrees in writing to be bound by the
provisions of this Option and the transfer is made in
accordance with any other restrictions or conditions
contained in the written consent and in accordance
with applicable federal and state securities laws.
(c) Upon the death of Optionee, Shares held by the
Optionee may be
5
transferred to the personal representative of the Optionee's
estate without complying with the provisions of subsection
(iv). Shares so transferred shall be subject to the other
provisions of this Option, including in particular, and
without limitation, subsection (v).
(ii) No Pledge. Unless a majority of the members of the Board of
Directors consent, Shares may not be pledged, mortgaged or
otherwise encumbered to secure indebtedness for money borrowed
or any other obligation for which the Optionee is primarily or
secondarily liable.
(iii) Stock Certificate Legend. Each stock certificate for Shares
issued to the Optionee shall 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 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.
SUCH SHARES 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 A MAJORITY OF THE MEMBERS OF
THE BOARD OF DIRECTORS CONSENT, SUCH STOCK OPTION AGREEMENT PROHIBITS
ANY PLEDGE, MORTGAGE OR OTHER ENCUMBRANCE OF SUCH SHARES 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 SHARES 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 SHARES 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.
(iv) Sales of Shares.
(a) Company's Right of First Refusal. In the event that
the Optionee shall desire to sell, assign or transfer
any Shares held by the Optionee to any other person
(the "Offered Shares") and shall be in receipt of a
bona fide offer to purchase the Offered Shares
("Offer"), the following procedure shall apply. The
Optionee shall give to the Company written notice
containing the terms
6
and conditions of the Offer, including, but not
limited to (a) the number of Offered Shares; (b) the
price per Share; (c) the method of payment; and (d)
the name(s) of the proposed purchaser(s).
An offer shall not be deemed bona fide unless the
Optionee has informed the prospective purchaser of
the Optionee's obligation under this Option and the
prospective purchaser has agreed to become a party
hereunder and to be bound hereby. The Company is
entitled to take such steps as it reasonably may deem
necessary to determine the validity and bona fide
nature of the Offer.
Until 30 days after such notice is given, the Company
or its designee shall have the right to purchase all
of the Offered Shares at the price offered by the
prospective purchaser and specified in such notice.
Such purchase shall be on the Agreement Terms, as
defined in subsection (vi).
(b) Failure of Company or its Designee to Purchase
Offered Shares. If all of the Offered Shares are not
purchased by the Company and/or its designee within
the 30-day period granted for such purchases, then
any remaining Offered Shares may be sold, assigned or
transferred pursuant to the Offer; provided, that the
Offered Shares are so transferred within 30 days of
the expiration of the 30-day period to the person or
persons named in, and under the terms and conditions
of, the bona fide Offer described in the notice to
the Company; and provided further, that such persons
agree to execute and deliver to the Company a written
agreement, in form and content satisfactory to the
Company, agreeing to be bound by the terms and
conditions of this Option.
(v) Manner of Exercise. Any right to purchase hereunder shall be
exercised by giving written notice of election to the
Optionee, the Optionee's personal representative or any other
selling person, as the case may be, prior to the expiration of
such right to purchase.
(vi) Agreement Price. The "Agreement Price" shall be the higher of
(a) the fair market value of the Shares to be purchased
determined in good faith by the Board of Directors of the
Company and (b) the original exercise price of the Shares to
be purchased.
(vii) Agreement Terms. "Agreement Terms" shall mean and include the
following:
(a) Delivery of Shares and Closing Date. At the closing,
the Optionee, the Optionee's personal representative
or such other selling person, as the case may be,
shall deliver certificates representing the Shares,
properly endorsed for transfer, and with the
necessary documentary and transfer tax stamps, if
any, affixed, to the purchaser of such Shares.
Payment of the purchase price therefor shall
concurrently be made to the Optionee, the Optionee's
personal representative or such other selling person,
as provided in subsection (b) of this subsection
(vii). Such delivery and payment shall be made at the
7
principal office of the Company or at such other
place as the parties mutually agree.
(b) Payment of Purchase Price. The Company shall pay the
purchase price to the Optionee at the closing.
(viii) Right to Purchase Upon Certain Other Events. The Company or
its designee shall have the right to purchase all, but not
less than all, of the Shares held by the Optionee at the
Agreement Price and on the Agreement Terms for a period of 90
days after any of the following events:
(a) an attempt by a creditor to levy upon or sell any of
the Optionee's Shares;
(b) the filing of a petition by the Optionee under the
U.S. Bankruptcy Code or any insolvency laws;
(c) the filing of a petition against Optionee under any
insolvency or bankruptcy laws by any creditor of the
Optionee if such petition is not dismissed within 30
days of filing;
(d) the entry of a decree of divorce between the Optionee
and the Optionee's spouse; or
(e) the termination of Optionee's services as an employee
or consultant with the Company.
The Optionee shall provide the Company written notice of the
occurrence of any such event within 30 days of such event.
(ix) Termination. The provisions of this Section 14 shall terminate
and all rights of each such party hereunder shall cease except
for those which shall have theretofore accrued upon the
occurrence of any of the following events:
(a) cessation of the Company's business;
(b) bankruptcy, receivership or dissolution of the
Company;
(c) ownership of all of the issued and outstanding shares
of the Company by a single shareholder of the
Company;
(d) written consent or agreement of the shareholders of
the Company holding 50% of the then issued and
outstanding shares of the Company (determined on a
fully diluted basis);
(e) consent or agreement of a majority of the members of
the Board of Directors of the Company; or
8
(f) registration of any class of equity securities of the
Company pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended.
9
(x) Amendment. This Section 14 may be modified or amended in whole
or in part by a written instrument signed by shareholders of
the Company holding 50% of the outstanding shares of Common
Stock (determined on a fully diluted basis) or a majority of
the members of the Board of Directors of the Company.
15. MARKET STANDOFF. Unless the Board of Directors 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 a 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.
16. 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; subject, however, that in the event of any conflict
between this Agreement and the Plan, the Plan shall govern. This
Agreement may only be amended in a writing signed by the Company and
the Optionee.
17. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not have any of the
rights of a shareholder with respect to any Shares until Optionee
exercises the Option and pay the Exercise Price.
18. 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 above
or to such other address as such party may designate in writing from
time to tome to the Company. All notices shall be deemed to have been
given or delivered upon: 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.
19. RECOVERY OF LITIGATION COST. If any legal action or other proceeding is
brought for the enforcement or interpitation of this agreement the
successful or prevailing party shall be entitled to recover reasonable
attorney's fees and other costs incurred in the action or proceeding,
in addition to any other relief.
10
20. GOVERNING LAW. This Option shall be deemed to be made under and
governed by and construed in accordance with the laws of the State of
California Jurisdiction for any disputes hereunder shall be solely in
Orange County, California.
Date of Assignment: April 3, 2001 Accesspoint Corporation, a Nevada
Corporation
By: /s/ Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx,
President
The undersigned 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: April 3, 2001 By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
11
