AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT is entered into and
effective this 8th day of DECEMBER, 1998, by and between Xxxx X. Xxxxxxx (the
"Optionor") and MacUSA, Inc., a Minnesota corporation (the "Optionee").
RECITALS
A. On December 28, 1995, the Optionor gave the Optionee the right and option
(the "Option") to purchase from the Optionor certain shares of the Common Stock,
$.01 per value (the "Common Stock") of Digital River, Inc., a Minnesota
corporation (the "Minnesota Company") owned by the Optionor.
B. The parties wish to clarify that the Option may be exercised in whole or in
part.
C. Subsequent to the date of the original Option, the Minnesota Company
reincorporated in the state of Delaware, and as a result the Option entitled the
Optionee to purchase from Xxxxxxx shares of Digital River, Inc., a Delaware
corporation (the "Company").
D. The Optionor is a party, together with the Company and Fujitsu Limited, a
corporation organized under the laws of Japan ("Fujitsu"), to a Stock Purchase
Agreement dated August 30, 1994 (the "Purchase Agreement"), whereby Fujitsu
purchased approximately 40% of the outstanding Common Stock, and to the related
Investors' Rights Agreement, Voting Agreement, Memorandum of Understanding,
Personal Guaranty and Stock Pledge Agreement, and certain other agreements
ancillary or relating to the Purchase Agreement (collectively, the "Related
Agreements").
E. The terms and conditions of this Agreement, including the grant and/or
exercise of the Option granted hereby, are intended by the Optionor to be
subject to any and all restrictions on the rights of the Optionor with respect
to the Common Stock owned by the Optionor contained in any of the Related
Agreements.
AGREEMENT
In consideration of the mutual covenants and conditions hereinafter set forth,
the parties hereto hereby agree that the Option is hereby amended and restated
to read in full as follows (reflecting, among other things, an adjustment of the
share numbers referenced below as a result of a 3:1 stock split and a 2:3
reverse stock split affected since the date the Option was originally granted).
1. GRANT OF OPTION. The Optionor hereby grants to the Optionee the
right, privilege, and option (the "Option") to purchase Three Million, Two
Hundred Thousand (3,200,000) shares of Common Stock (the "Option Shares"), from
the Optionor according to the terms and subject to the conditions hereinafter
set forth.
2. OPTION EXERCISE PRICE. The aggregate price to be paid by Optionee for
all of the Option Shares in the event of an exercise of the Option shall be
$1.00.
1.
3. DURATION OF OPTION AND TIME OF EXERCISE. The Option shall become
exercisable with respect to the Option Shares on or after the date hereof and
shall expire on and no longer be exercisable after 5:00 p.m., Minneapolis,
Minnesota time, on December 31, 2000 (the "Option Term"). The Option shall not
be exercisable, unless and until the Optionor and Optionee have negotiated and
executed a stock purchase agreement relating to the purchase of the Option
Shares of the Optionee pursuant to the exercise of this Option containing such
representations and warranties of the parties as are characteristic of similar
stock purchase transactions.
4. VOTING OF OPTION SHARES. During the Option Term, the Optionor shall
seek the advice and consultation of the Board of Directors of the Optionee
before voting the Option Shares in any and all Company actions to be taken by
the holders of Common Stock. Subject to the restrictions imposed on
shareholders of the Company pursuant to the Related Agreements, Optionor will
vote the Option Shares as directed by the Board of Directors of Optionee.
5. COMPLIANCE WITH RELATED AGREEMENTS. It is expressly agreed by the
parties hereto that the terms of this Agreement, including without limitation
the transfer of the Option Shares pursuant to exercise of the Option granted
hereunder, are in all respects subject to the terms and conditions contained in
the Related Agreements, and that any provision of this Agreement of action taken
hereunder that violates any term or condition of the Related Agreements will be
void.
6. INDEMNIFICATION FOR TAX LIABILITY. As additional consideration for
the Option Shares, Optionee hereby agrees to reimburse Optionor with respect to
any tax liability of Optionor associated with the transfer to Optionee of the
Option shares. For purposes of this provision, Optionor's tax liability
includes all federal, state and local taxes due as a result of the transfer,
together with any penalties and interest associated therewith. In addition,
Optionee will reimburse Optionor for the tax liability associated with the
reimbursement payment pursuant to this Section so that, on an after tax basis,
Optionor has been fully reimbursed for any tax liability associated with the
transfer of the Option Shares to the Optionee.
7. MANNER OF OPTION EXERCISE.
a. NOTE. The option may be exercised by the Optionee in whole or in
part, subject to the conditions contained herein, by delivery, in person or by
registered mail, of written notice of exercise to the Optionor at the Optionee's
principal executive office, such notice to identify this Option and to be
accompanied by payment of purchase price for the shares purchased (which, in the
event this Option is being exercised in part, shall be the pro rata portion of
the aggregate exercise price for the number of shares being exercised), and the
Optionor shall deliver to the Optionee a certificate representing the shares
purchased. As soon as practicable after such notice and payment are
received, the Optionee shall be recorded on the books of the Company as the
owner of the Option Shares purchased, and the Optionor shall deliver to the
Optionee one or more duly issued stock certificates evidencing such ownership.
b. the time of exercise of this Option, the Optionee shall pay the
exercise price of the Option Shares in cash.
2.
8. NONTRANSFERABILITY. This Option shall not be (i) transferable by the
Optionee, either voluntarily or involuntarily, or (ii) subject to any lien,
directly or indirectly, by operation of law or otherwise. Any attempt to
transfer this Option shall void this Option.
9. BINDING EFFECT. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
10. GOVERNING LAW. This Agreement and all rights and obligations
hereunder shall be construed in accordance with and governed by the laws of
the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stock Option Agreement effective the day and year first above written.
OPTIONOR:
/s/ Xxxx X. Xxxxxxx
--------------------------
Xxxx X. Xxxxxxx
OPTIONEE:
MacUSA, INC.
By: /s/ [Illegible]
----------------------------
Its: President
3.
