EXHIBIT 10.28
BENCHMARKING PARTNERS, INC.
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Option" or "Agreement") is dated as of January 1,
1997 by and between Xxxxxxxxxxx Xxxxxxxxx ("Optionee") and Internet Capital
Group, L.L.C. ("ICG").
In consideration of the premises and the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option: Representations and Warranties.
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(a) ICG hereby irrevocably grants to Optionee the right and option to
purchase all or any part of an aggregate of 58,500 shares (the "Option Shares")
of Series A Preferred Stock ("Series A Preferred Stock") of Benchmarking
Partners, Inc. ("Benchmarking") presently owned by ICG, on the terms and
conditions set forth in this Agreement.
(b) ICG hereby represents and warrants to Optionee: (i) that ICG is the
sole and rightful owner of the Option Shares, free and clear of any and all
liens, claims and encumbrances of any nature whatsoever; (ii) that ICG has the
full and unrestricted right to grant the option hereunder without violation of
any law or regulation or rights of any third party, including those of
Benchmarking or any shareholder or affiliate of Benchmarking; and (iii) that,
upon exercise of all or any part of the option granted hereunder, ICG shall have
the full and unrestricted right to transfer the Option Shares to Optionee
without violation of any law or regulation or rights of any third party,
including those of Benchmarking or any shareholder or affiliate of Benchmarking.
2. Term and Time of Exercise of Option: Option Price.
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(a) This Option shall have a term of ten years, commencing on January 1,
1997 (the "Grant Date"), and ending at the close of business on January 1, 2007
(the "Termination Date"), except to the extent such term may be reduced in
accordance with Sections 5 and 6 hereof. Upon the Termination Date, or upon such
earlier date as may be applicable pursuant to Sections 5 and 6, the Option shall
terminate and become null and void.
(b) Subject to Sections 5 and 6, the Option Shares shall become
exercisable in four cumulative equal annual increments beginning on the first
anniversary of the Grant Date. Thus, one-fourth (14,625) of the Option Shares
shall become exercisable one (1) year from the Grant Date; an additional one-
fourth (14,625) of the Option Shares shall become exercisable two (2) years from
the Grant Date; an additional one-fourth (14,625) of the Option Shares shall
become exercisable three (3) years from the Grant Date; and the remaining one-
fourth (14,625) of the Option Shares shall become exercisable four (4) years
from the Grant Date.
(c) This Option shall be exercisable at the purchase price of $2.85 per
share (the "Option Price").
3. Exercise of Option.
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(a) Subject to the terms and conditions of this Agreement, this Option may
be exercised in whole or in part by delivery of a written notice to ICG at its
principal office, now located at 000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx
00000, to the attention of Xx. Xxxxxx X. Xxxxxxx. Such notice shall state the
election to exercise the Option and the number of Option Shares with respect to
which it is being exercised, and shall be signed by the person or persons
exercising the Option. If the person exercising the Option is not the Optionee,
he or she shall also deliver with the notice appropriate proof of his or her
right to exercise the Option. No fractional shares may be purchased. Full
payment of the applicable Option Price shall accompany such notice. Payment of
the Option Price shall be by check payable to the order of ICG.
(b) Upon receipt of notice of exercise and any necessary documentation and
the payment of the Option Price, ICG shall take or cause to be taken such action
as may be necessary to effect the transfer to Optionee of certificates
representing the Option Shares with respect to which the Option has been
exercised, including any actions required to be taken by Benchmarking or any
other third party. All shares so issued shall be fully paid and nonassessable.
This Option will remain in full force and effect to the extent it has not been
exercised or otherwise terminated.
(c) Optionee shall not be deemed for any purpose to the owner of any
shares of the Series A Preferred Stock unless and until (i) the Option shall
have been exercised pursuant to the terms hereof and (ii) the shares of Series A
Preferred Stock with respect to which the Option was exercised shall have been
issued and delivered to the Optionee. Thereupon, the Optionee shall have full
voting, dividend and other ownership rights with respect to such shares of
Series A Preferred Stock.
4. Early Termination of Option Upon Termination of Consulting Services
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Agreement.
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(a) If Optionee's relationship with ICG is terminated for any reason prior
to the Termination Date for a reason other than death, Optionee may, at any time
within a period of ninety (90) days after the date of such termination, exercise
the Option to the extent (and only to the extent) the Option was exercisable on
the date that the relationship was terminated. Upon the expiration of such
ninety (90) day period, the Option shall, to the extent not previously exercised
or terminated, terminate and become null and void.
(b) If Optionee's relationship with ICG is terminated prior to the
Termination Date due solely to the death of Optionee, Optionee's legal
representative may, at any time within a period of six (6) months after the date
of Optionee's death, exercise the Option to the extent (and only to the extent)
the Option was exercisable on the date of Optinee's death. Upon the expiration
of the foregoing six-month period, the Option shall, to the extent not
theretofore exercised or terminated, terminate and become null and void.
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(c) Notwithstanding anything contained in the foregoing sections, in no
event may the Option be exercised after the Termination Date.
5. Effect of Change in Control.
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Notwithstanding anything in this Agreement to the contrary, in the event of
a Change in Control (as defined below) of ICG or Benchmarking, the Option, to
the extent not previously exercised or terminated on the date of such change in
Control, shall become immediately and fully exercisable. A Change in Control
means the occurrence of any of the following events: (i) if more than 50% of
the then outstanding equity ownership of ICG or Benchmarking, as applicable,
sold or otherwise transferred to an entity which was not a equity holder of ICG
or Benchmarking, as applicable, as of the day immediately after the Grant Date;
(ii) the merger or consolidation of ICG or Benchmarking, as applicable, with or
into another corporation (other than a merger or consolidation in which ICG or
Benchmarking, as applicable, is the surviving corporation and which does not
result in any capital reorganization or reclassification or other changes to
ICG's or Benchmarking's capitalization, as applicable; (iii) a sale or
disposition of all or substantially all of ICG's or Benchmarking's assets, as
applicable; or (iv) a plan of liquidation or dissolution of ICG or Benchmarking,
as applicable.
6. Adjustment to Option Shares.
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The number of Option Shares and the Option Price shall be adjusted in the
event of any change in the outstanding Series A Preferred Stock of Benchmarking
by reason of any stock dividend or split, recapitalization, reclassification,
merger, consolidation, combination, or exchange of shares or other similar
corporate change. Subject to Section 5, in the event of any liquidation,
dissolution, merger or consolidation of Benchmarking the Option shall continue
in effect in accordance with the terms of this agreement and Optionee shall be
entitled to receive for each Option Share upon the exercise of the Option the
same number and kind of stock, securities, cash, property or other consideration
per share that each shareholder was entitled to receive in such liquidation,
dissolution, merger or consolidation.
7. Miscellaneous.
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(a) The captions and section headings used herein are for convenience
only, shall not be deemed part of this Agreement, and shall not in any way
restrict or modify the context and substance of any section or paragraph hereof.
(b) This Agreement shall be governed by, and construed in accordance with,
the laws of the Commonwealth of Pennsylvania without regard to its choice or
conflict of law rules.
(c) This Option is not intended to qualify as an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended.
(d) The Optionee understands that the Option Shares have not been
registered under the Securities Act of 1933 and must be held indefinitely unless
they are subsequently registered
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under such Act or an exemption from such registration is available upon
disposition. Benchmarking may, but shall not be required to, register all or any
part of the Option Shares.
(e) This Agreement shall inure to the benefit of and be binding upon ICG's
successors and assigns. All obligations imposed upon Optionee and all rights
granted to Optionee under this Agreement shall be binding upon and inure to the
benefit of Optionee's heirs, executors, Administrators, and successors.
(f) This Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written instrument executed
by the parties hereto.
(g) Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force in accordance with their terms.
IN WITNESS WHEREOF, the parties have executed this Option as of the day and year
first above written.
INTERNET CAPITAL GROUP, L.L.C.
By: /s/ XXXXXX X. XXXXXXX, III
______________________________
President
By: /s/ XXXXXXXXXXX XXXXXXXXX
______________________________
Optionee
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