EXHIBIT 10.9.1
AVERT, INC.
AMENDED AND RESTATED
1994 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
This agreement (the "Agreement") is made January 5, 1999, between Avert,
Inc., a Colorado corporation (the "Company"), and Xxxx X. Xxxxxx (the
"Optionee"). The Company hereby grants Optionee an option (the "Option") to
purchase One Hundred Thousand (100,000) of the Company's common shares, no par
value (the "Common Shares"), for a purchase price (the "Option Price") of $4.188
per Common Share. The Option has been granted pursuant to the Avert, Inc.
Amended and Restated 1994 Stock Incentive Plan (the "Plan") and shall include
and be subject to all provisions of the Plan, which are hereby incorporated
herein by reference, and shall be subject to the following provisions of this
Agreement:
1. Term and Vesting. Subject to the provisions of this Agreement, including
but not limited to paragraph 6 hereof, and the Plan, this option may be
exercised in blocks of 100 shares or any multiple thereof after the date of this
Agreement and prior to 5:00 p.m., on January 1, 2009, (the "Expiration Date")
but not thereafter, in accordance with the following:
(a) immediately on January 1, 2000, this option may be exercised for
up to 20,000 shares of the total Common Shares covered hereby: and
(b) immediately on January 1, of each of the four succeeding years,
this options may be exercised on each of those dates for up to an
additional 20,000 shares of the total Common Shares covered hereby;
so that on and after January 1, 2004, and continuing until the
Expiration Date this option may be exercised for up to 100% of the
total Common Shares included in this option; provided, however, that
notwithstanding the provisions of 1(a) or 1(b) hereof, but subject to
the further provisions of this Agreement, if prior to January 1, 2004,
Optionee's employment with the Company is terminated by the Company
without cause under the terms of Paragraph 9.1 of the Employment
Agreement between the Company and Optionee, dated as of January 1,
1994, and a Change in Control as defined in the Plan has not occurred
theretofore, this option may be exercised for up to an additional
10,000 shares of the total Common Shares covered hereby (or in the
event such termination should occur prior to the first anniversary
date of this Agreement and a Change in Control has not theretofore
occurred, 10,000 shares of the total Common Shares covered hereby),
effective on the date of such termination.
2. Method of Exercise. Exercise of this option shall be affected by the
Optionee giving written notice to the Company (in the form attached hereto as
Exhibit A, whose covenants and substantive provisions are hereby made part of
this Agreement) which shall:
(a) state that the Option is thereby being exercised, the number of
shares of Common Shares with respect to which the Option is being
exercised, each person in whose name any certificates for the Common Shares
should be registered and his or her address and social security number;
(b) be signed by the person or persons entitled to exercise the Option
and, if the Option is being exercised by anyone other than the Optionee, be
accompanied by proof satisfactory to counsel for the Company of the right
of such person or persons to exercise the Option under the Plan and all
applicable laws and regulations; and
(c) be accompanied by such representations, warranties or agreements
with respect to the investment intent of such person or persons exercising
the Option as the Company may reasonably request in form and substance
satisfactory to counsel for the Company.
3. Payment of Price. Upon exercise of the Option, the Company shall deliver
a certificate or certificates for such Common Shares to the specified person or
persons at the specified time upon receipt of the full purchase price for such
Common Shares by any method of payment authorized by the Plan.
4. Transferability. The Option shall not be transferable by the Optionee
except as expressly provided by the Plan. The Option shall be exercisable
(subject to any other applicable restrictions on exercise) only by the Optionee
for his own account, except in the events of the death or disability of the
Optionee, in either of which events the Option shall be exercisable (subject to
any other applicable restrictions on exercise) only by the Optionee's estate
(acting through its fiduciary) or by the Optionee's duly authorized legal
representative, respectively.
5. Restrictions on Exercise. The Option is subject to all restrictions in
this Agreement or in the Plan. As a condition of any exercise of the Option, the
Company may require the Optionee or his successor to make any representation and
warranty to comply with any applicable law or regulation or to confirm any
factual matters reasonably requested by counsel for the Company.
6. Early Termination of Option. Notwithstanding Paragraph 1 of this
Agreement, the Option shall terminate, expire and become invalid and
nonexercisable on the date three months following the date of termination of the
Optionee's employment as an employee of the Company or a subsidiary corporation
(other than by reason of death or permanent and total disability within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the "Code")).
7. Taxes. The Optionee hereby agrees to pay to the Company, in accordance
with the terms of the Plan, any federal, state or local taxes of any kind
required by law to be withheld with respect to the Option granted hereunder. If
the Optionee does not make such payment to the Company, the Company shall have
the right to withhold from any payment of any kind otherwise due to the Optionee
from the Company, any federal, state or local taxes of any kind requires by law
to be withheld with respect to the Option or the Common Shares to be purchased
by the Optionee under Section 422 or any successor section thereto of the Code.
8. Investment Representation. The Optionee agrees that any Common Shares of
the Company which the Optionee may acquire by virtue of the Option shall be
acquired for investment purposes only and not with a view to the distribution or
resale, and may not be transferred, sold, assigned, pledged, hypothecated or
otherwise disposed of by the Optionee unless (i) a registration statement or
post-effective amendment to a registration statement under the Securities Act of
1933 as amended (the "Securities Act"), with respect to said Common Shares has
become effective so as to permit the sale or other disposition of said shares by
the Optionee; or (ii) there is presented to the Company an opinion of counsel
satisfactory to the Company to the effect that the sale or other proposed
disposition of said shares by the Optionee may lawfully be made otherwise than
pursuant to an effective registration statement or post-effective amendment to a
registration statement relating to the said share under the Securities Act.
9. Consent to Jurisdiction. The Optionee hereby consents to the
jurisdiction of the state court of general jurisdiction sitting in Larimer
County, Colorado, to resolve all questions arising under or out of this
Agreement.
10. Definitions. Unless otherwise defined in this Agreement, capitalized
terms will have the same meanings given them in the Plan.
AVERT, INC.
DATE OF GRANT: January 5, 1999 By: ____________________________
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxx
Compensation Committee
Avert, Inc. Board of Directors
ACCEPTANCE OF AGREEMENT
The Optionee hereby: (a) acknowledges receiving a copy of the Plan, which is
attached to this Agreement, and represents that he is familiar with all
provisions of the Plan; (b) accepts this Agreement and the Option granted to him
under this Agreement subject to all provisions of the Plan and this Agreement;
and (c) agrees to accept as binding, conclusive and final all decisions or
interpretations of the Company.
Date: January 5, 1999 ____________________________
Optionee - Xxxx X. Xxxxxx
