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 effective 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"). Capitalized terms not defined herein shall have the meaning ascribed
to them in the Plan.
Optionee: Xxxxxx X. Xxxxxxxx
Social Security Number:
Address: 0000 X. Xxxxxx Xxx., Xxxxx Xxx, XX 00000
Total Option Shares: 12,000 shares
Exercise Price Per Share: $0.875
Date of Grant: January 2, 2001
First Vesting Date: See Section 3
Expiration Date for Exercise of Options: January 2, 2006
Type of Stock Option:
(Check one): [X ] Incentive Stock Option [ ] Statutory Stock Option
1
1. CONDITIONAL GRANT OF OPTION. The Company hereby conditionally grants to
Optionee an option (the "Option") 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, the Company's Incentive Award Program and the
Plan. 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, is not less than the fair market
value per share of Common Stock on the date of grant, as determined by
the Board; provided, however, in the event Optionee is an Employee and
owns stock representing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of its
Parent or Subsidiary corporations immediately before this Option is
granted, said exercise price is not less than one hundred ten percent
(110%) of the fair market value per share of Common Stock on the date
of grant as determined by the Board.
3. EXERCISE OF OPTION. Options are available for conditional vesting only
within the year issued or they expire. Options issued pursuant to the
Incentive Award Program are issued subject to the vesting requirements
set forth herein. This Option shall be exercisable during its term in
accordance with the provisions of Section 8 of the Plan as follows:
(i) Vesting:
(a) This Option shall not become exercisable as to any of
the number of the Shares until and unless the Shares
are earned pursuant to performance reviews and/or
milestone attainments achieved through the Incentive
Award Program issued by the Company on a per project
basis during the term of this Option. Upon the
achievement of certain performance milestones set
forth by the Company in Incentive Award Program
Documents, the number of Shares which shall become
eligible for vesting and exercise shall be determined
by a review of both the Optionee's department manager
in the Company and an executive member of the
Compensation Committee of the Company and shall be
set forth in an Incentive Award Review Document.
(b) After thirty (30) days of employment with the Company
from the date of execution of an Incentive Award
Review Document, the Shares eligible, if any, shall
vest and become exercisable.
(c) This Option may not be exercised for a fraction of a
Share.
(d) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the
Option is governed by Sections 7, 8 and 9 below,
subject to the limitations contained in subsection
3(i)(e).
2
(e) In no event may this Option be exercised after the
date of expiration of the term of this Option as set
forth in Section 11 below.
(ii) 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.
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 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;
3
(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.
5. METHOD OF PAYMENT. Payment of the purchase price may be made subject to
the terms of Section 14 herein, or 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.
4
7. TERMINATION OF STATUS AS AN EMPLOYEE OR CONSULTANT. In the event of
termination of Optionee's Continuous Status as an Employee or
Consultant for any reason other than death or disability, Optionee may,
but only within thirty (30) days after the date of such termination
(but in no event later than the date of expiration of the term of this
Option as set forth in Section 11 below), exercise this Option to the
extent that Optionee was entitled to exercise it at the date of such
termination. To the extent that Optionee was not entitled to exercise
this Option at the date of such termination, or if Optionee does not
exercise this Option within the time specified herein, this Option
shall terminate.
8. DISABILITY OF OPTIONEE. In the event of termination of Optionee's
Continuous Status as an Employee or Consultant as a result of
Optionee's disability, Optionee may, but only within six (6) months
from the date of termination of employment or consulting relationship
(but in no event later than the date of expiration of the term of this
Option as set forth in Section 11 below), exercise this Option to the
extent Optionee was entitled to exercise it at the date of such
termination; provided, however that if the disability is not total and
permanent (as defined in Section 22(e)(3) of the Code) and the Optionee
exercises the option within the period provided above but more than
three months after the date of termination, this Option shall
automatically be deemed to be a Nonstatutory Stock Option and not an
Incentive Stock Option; and provided, further, that if the disability
is total and permanent (as defined in Section 22(e)(3) of the Code),
then the Optionee may, but only within one (1) year from the date of
termination of employment or consulting relationship (but in no event
later than the date of expiration of the term of this Option as set
forth in Section 11 below), exercise this Option to the extent Optionee
was entitled to exercise it at the date of such termination. To the
extent that Optionee was not entitled to exercise this Option at the
date of termination, or if Optionee does not exercise such Option
(which Optionee was entitled to exercise) within the time periods
specified herein, this Option shall terminate.
9. DEATH OF OPTIONEE. In the event of the death of Optionee:
(i) During the term of this Option while an Employee or Consultant
of the Company and having been in Continuous Status as an
Employee or Consultant since the date of grant of this Option,
this Option may be exercised, at any time within one (1) year
following the date of death (but, in the case of an Incentive
Stock Option, in no event later than the date of expiration of
the term of this Option as set forth in Section 11 below), 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 Employee or
Consultant was not entitled to exercise the Option at the date
of death, or if such Employee, Consultant, estate or other
person does not exercise such Option (which such Employee,
Consultant, estate or person was entitled to exercise) within
the one (1) year time period specified herein, the Option
shall terminate; or,
5
(ii) During the thirty (30) day period specified in Section 7 or
the one (1) year period specified in Section 8, after the
termination of Optionee's Continuous Status as an Employee or
Consultant, this Option may be exercised, at any time within
one (1) year following the date of death (but, in the case of
an Incentive Stock Option, in no event later than the date of
expiration of the term of this Option as set forth in Section
11 below), by Optionee's estate or by a person who acquired
the right to exercise this Option by bequest or inheritance,
but only to the extent of the right to exercise that had
accrued at the date of termination. To the extent that such
Employee or Consultant was not entitled to exercise this
Option at the date of death, or if such Employee, Consultant,
estate or other person does not exercise such Option (which
such Employee, Consultant, estate or person was entitled to
exercise) within the one (1) year time period specified
herein, this Option shall terminate.
10. 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.
11. TERM OF OPTION. This Option may not be exercised more than five (5)
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 9(i) or Section 9(ii) in the circumstances set forth in such
Sections.
12. EARLY DISPOSITION OF STOCK; TAXATION UPON EXERCISE OF OPTION. If
Optionee is an Employee and the Option qualifies as an ISO, Optionee
understands that, if Optionee disposes of any Shares received under
this Option within two (2) years after the date of this Agreement or
within one (1) year after such Shares were transferred to Optionee,
Optionee will be treated for federal income tax purposes as having
received ordinary income at the time of such disposition in any amount
generally measured as the difference between the price paid for the
Shares and the lower of the fair market value of the Shares at the date
of exercise or the fair market value of the Shares at the of
disposition. Any gain recognized on such premature sale of the Shares
in excess of the amount treated as ordinary income will be
characterized as capital gain. Optionee hereby agrees to notify the
Company in writing within thirty (30) days after the date of any such
disposition. Optionee understands that if Optionee disposes of such
Shares at any time after the expiration of such two-year and one-year
holding periods, any gain on such sale will be treated as long-term
capital gain laws subject to meeting various qualifications. If
Optionee is a Consultant or this is a Nonstatutory Stock Option,
Optionee understands that, upon exercise of this Option, Optionee will
recognize income for tax purposes in an amount equal to the excess of
the then fair market value of the Shares over the exercise price. Upon
a resale of such shares by the Optionee, any difference between the
sale price and the fair market value of the Shares on the date of
exercise of the Option will be treated as capital gain or loss.
Optionee understands that the Company will be required to withhold tax
from Optionee's current compensation in some of the circumstances
6
described above; to the extent that Optionee's current compensation is
insufficient to satisfy the withholding tax liability, the Company may
require the Optionee to make a cash payment to cover such liability as
a condition to exercise of this Option.
13. TAX CONSEQUENCES. The Optionee understands that any of the foregoing
references to taxation 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 also have adverse tax
consequences under 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.
14. NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common
Stock is greater than the Per Share Exercise Price (at the date of
calculation as set forth below), in lieu of exercising this Option for
cash, the Optionee may elect to receive shares equal to the value (as
determined below) of this Option (or the portion thereof being
canceled) by surrender of this Option at the principal office of the
Company together with the properly endorsed Notice of Exercise and
Subscription Form and notice of such election, in which event the
Company will issue to the Optionee a number of shares of Common Stock
computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to the
Optionee
Y = the number of shares of Common Stock purchasable under
this Option or, if only a portion of this Option is being exercised,
the portion of this Option being canceled (at the date of such
calculation)
A = the fair market value of one share of the Company's Common
Stock (at the date of such calculation)
B = Per Share Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, fair market value of
one share of the Company's Stock will be the average of the closing
prices of the Company's shares of Common Stock as quoted on the OTC
Buletin Board (the "OTCBB") (or on such other United States stock
exchange or public trading market on which the shares of the Company
trade if, at the time of the election, they are not trading on the
OTCBB), for the
7
five (5) consecutive trading days immediately preceding the date of the
date the completed, executed Notice of Exercise and Subscription Form
is received.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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 19, 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 19 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 19). 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.
8
(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 19.
(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 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
9
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 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
10
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
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;
11
(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 19 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,
(f) Registration of any class of equity securities of the
Company pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended.
(x) Amendment. This Section 19 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.
20. 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.
12
21. 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.
22. PRIVILEGES OF STOCK OWNERSHIP. Participant 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.
23. 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.
Dated: January 2, 2001 Accesspoint Corporation, a Nevada
Corporation
By: /s/ Xxx X. Xxxxxxxxx
-------------------------
Xxx X. Xxxxxxxxx,
CEO
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO SECTION
3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE OR CONSULTANT AT
THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT THIS OPTION, THE COMPANY'S PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE,
THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH
HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT
AS AN EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL,
AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan, represents that Optionee is
familiar with the terms and provisions thereof, and hereby accepts this Option
subject to all of the terms and provisions thereof. Optionee has reviewed the
Plan and this Option in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option and fully understands all
provisions of this Option. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board or of the
Committee upon any questions arising under the Plan.
OPTIONEE
Dated: January 2, 2001 By: /s/ Xxx X. Xxxxxxxx
-----------------------
Xxx X. Xxxxxxxx
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CONSENT OF SPOUSE
The undersigned spouse of the 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: -----------------------
Name:
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