EXHIBIT 10.4
DIRECT ACCESS INTERACTIVE, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), is entered into as of the 1st
day of July, 1999, by and between Direct Access Interactive, Inc., a Georgia
corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Optionee").
WHEREAS, the Board of Directors of the Company agreed as of July 1, 1999, to
grant the Optionee a stock option to purchase the number of shares of the
Company's Common Stock as set forth below;
WHEREAS, the Company and the Optionee desire to enter into a written agreement
with respect to such option.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows.
1. Grant of Option. Subject to the terms, restrictions, limitations, and
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conditions stated herein, the Company hereby evidences its grant to the Optionee
of the right and option (the "Option") to purchase all or any part of the number
of shares of the Company's Common Stock, no par value (the "Stock"), set forth
on Schedule A attached hereto and incorporated herein by reference. The Option
shall be exercisable in the amounts and at the time specified on Schedule A.
The Option shall expire and shall not be exercisable on the date specified on
Schedule A or on such earlier date as determined pursuant to this Agreement.
2. Purchase Price. The price per share to be paid by the Optionee for the
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shares subject to this Option (the "Exercise Price") shall be as specified on
Schedule A.
3. Exercise Terms. The Optionee must exercise the Option for at least the
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lesser of 100 shares or the number of shares of stock which may be purchased by
the Optionee under the terms of this Agreement as to which the Option remains
unexercised. If this Option is not exercised with respect to all or any part of
the shares subject to this Option prior to its expiration, the shares with
respect to which this Option was not exercised shall no longer be subject to
this Option.
4. Restrictions on Transferability. No Option shall be transferable by an
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Optionee other than by will or the laws of descent and distribution or pursuant
to a Qualified Domestic Relations Order (as defined in the Internal Revenue Code
of 1986, as amended (the "Code") or in the Employee Retirement Income Security
Act of 1974, as amended (the "Act"), or the rules and regulations promulgated
under the Code or the Act). During the lifetime of an Optionee, Options shall
be exercisable only by such Optionee (or by such Optionee's guardian or legal
representative, should one be appointed.
5. Notice of Exercise of Option. This Option may be exercised by the
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Optionee, or by the Optionee's administrators, executors or personal
representatives, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule B) signed by the Optionee, or by such
administrators, executors or personal representatives, and delivered or mailed
to the Company as specified in Section 12 hereof to the attention of the
President or such other officer as the Company may designate. Any such notice
shall (a) specify the number of shares of Stock which the Optionee or the
Optionee's administrators, executors or personal representatives, as the case
may be, then elects to purchase hereunder, (b) contain such information as may
be reasonably required by the Company, and (c) be accompanied by (i) a certified
or cashier's check payable to the Company in payment of the total Exercise Price
applicable to such shares as provided herein, (ii) shares of Stock owned by the
Optionee and duly endorsed or
accompanied by stock transfer powers having a Fair Market Value (as determined
by the Board of Directors) equal to the total Exercise Price applicable to such
shares purchased hereunder, or (iii) a certified or cashier's check accompanied
by the number of shares of Stock whose Fair Market Value when added to the
amount of the check equals the total Exercise Price applicable to such shares
purchased hereunder. Upon receipt of any such notice and accompanying payment,
and subject to the terms hereof, the Company agrees to issue to the Optionee or
the Optionee's administrators, executors or personal representatives, as the
case may be, stock certificates for the number of shares specified in such
notice registered in the name of the person exercising this Option.
6. Adjustment in Option. The number of Shares subject to this Option, the
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Exercise Price and other matters are subject to adjustment during the term of
this Option as appropriate for stock splits, stock dividends, and similar
events.
7. Termination of Employment.
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(a) Except as may otherwise be specified in Schedule A hereto, in the
event of the termination of the Optionee's employment with the Company or any of
its Subsidiaries, the Optionee may exercise this Option at any time within 30
days after such termination to the extent of the number of shares which were
purchasable hereunder at the date of such termination.
(b) Unless and to the extent otherwise provided in Schedule A hereto, in
the event of the retirement of the Optionee at the normal retirement date as
prescribed from time to time by the Company or any Subsidiary, the Optionee
shall continue to have the right to exercise any Options for shares which were
Purchasable at the date of the Optionee's retirement. This Option does not
confer upon the Optionee any right with respect to continuance of employment by
the Company or by any of its Subsidiaries. This Option shall not be affected by
any change of employment so long as the Optionee continues to be an employee of
the Company or one of its Subsidiaries.
8. Disabled Optionee. In the event of termination of employment because of
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the Optionee's becoming subject to a Permanent and Total Disability (as defined
by Section 22(e)(3) of the Code and any regulations or rulings promulgated
thereunder), the Optionee (or his or her personal representative) may exercise
this Option at any time within three months after such termination to the extent
of the number of shares which were purchasable hereunder at the date of such
termination.
9. Death of Optionee. Except as otherwise may be set forth in Schedule A with
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respect to the rights of the Optionee upon termination of employment under
Section 7 above, in the event of the Optionee's death while employed by the
Company or any of its Subsidiaries or within three months after a termination of
such employment, the appropriate persons described in Section 5 hereof or
persons to whom all or a portion of this Option is transferred in accordance
with Section 4 hereof may exercise this Option at any time within a period
ending on the earlier of (a) the last day of the three month period following
the Optionee's death or (b) the expiration date of this Option. If the Optionee
was an employee of the Company at the time of death, this Option may be so
exercised to the extent of the number of shares that were purchasable hereunder
at the date of death. If the Optionee's employment terminated prior to his or
her death, this Option may be exercised only to the extent of the number of
shares covered by this Option which were purchasable hereunder at the date of
such termination.
9. Date of Grant. This Option was granted by the Board of Directors of the
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Company on the date set forth in Schedule A (the "Date of Grant").
10. Compliance with Regulatory Matters. The Optionee acknowledges that the
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issuance of capital stock of the Company is subject to limitations imposed by
federal and state law and the Optionee
hereby agrees that the Company shall not be obligated to issue any shares of
Stock upon exercise of this Option that would cause the Company to violate law
or any rule, regulation, order or consent decree of any regulatory authority
(including without limitation the Securities and Exchange Commission) having
jurisdiction over the affairs of the Company. The Optionee agrees that he or she
will provide the Company with such information as is reasonably requested by the
Company or its counsel to determine whether the issuance of Stock complies with
the provisions described by this Section.
11. Restriction on Disposition of Shares. The shares purchased pursuant to
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the exercise of an Incentive Stock Option shall not be transferred by the
Optionee except pursuant to the Optionee's will or the laws of descent and
distribution until such date which is the later of two years after the grant of
such Incentive Stock Option or one year after the transfer of the shares to the
Optionee pursuant to the exercise of such Incentive Stock Option.
12. Miscellaneous.
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(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed
by the laws of, the State of Georgia.
(c) Any requests or notices to be given hereunder shall be deemed given,
and any elections or exercises to be made or accomplished shall be deemed made
or accomplished, upon actual delivery thereof to the designated recipient, or
three days after deposit thereof in the United States mail, registered, return
receipt requested and postage prepaid, addressed, if to the Optionee, at the
address set forth below and, if to the Company, to the executive offices of the
Company.
(d) This Agreement may not be modified except in writing executed by
each of the parties hereto.
(e) THE OPTIONEE ACKNOWLEDGES THAT THIS OPTION AND ALL SHARES OF STOCK
ACQUIRED PURSUANT TO THE EXERCISE OF THIS OPTION ARE DEEMED TO BE "RESTRICTED
SECURITIES" AS DEFINED IN RULE 144 PROMULGATED PURSUANT TO THE SECURITIES ACT OF
1933 AND, THEREFORE, RESALE OF SUCH SHARES MUST BE MADE PURSUANT TO THE
REGISTRATION PROVISIONS OF SUCH ACT OR AN EXEMPTION THEREFROM.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused this
Stock Option Agreement to be executed on behalf of the Company and the Company's
seal to be affixed hereto and attested by the Secretary or an Assistant
Secretary of the Company, and the Optionee has executed this Stock Option
Agreement under seal, all as of the day and year first above written.
COMPANY:
DIRECT ACCESS INTERACTIVE, INC.
Attest:
By: /s/ Xxxxx X. Xxxxxxx
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Secretary
Name: Xxxxx X. Xxxxxxx
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[SEAL]
Title: President/COO
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OPTIONEE:
/s/ Xxxx X. Xxxxxxx
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Name:
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Address:
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SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
DIRECT ACCESS INTERACTIVE, INC.
AND
Xxxx X. Xxxxxxx
Dated July 1, 1999
1. Number of Shares Subject to Option: 15.625 shares of the Company's Common
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Stock
2. This Option (Check one) [ X ] is [ ] is not an Incentive Stock Option.
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3. Option Exercise Price: $16,000 per share.
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4. Date of Grant: July 1, 1999
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5. Option Vesting Schedule:
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Check one:
( ) Options are exercisable with respect to all shares
(X) Options are exercisable with respect to the number of shares
indicated below on or after the date indicated next to the
number of shares:
No. of Shares Vesting Date
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15.625 One third annually beginning on the first
anniversary of this agreement
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6. Option Exercise Period:
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Options expire and are void unless exercised on or before June 30, 2009.
A-1
SCHEDULE B
TO
STOCK OPTION AGREEMENT
BETWEEN
DIRECT ACCESS INTERACTIVE, INC.
AND
Xxxx X. Xxxxxxx
Dated ____________________
NOTICE OF EXERCISE
The undersigned hereby notifies Direct Access Interactive, Inc. (the
"Company") of this election to exercise the undersigned's stock option to
purchase ________ shares of the Company's Common Stock, no par value (the
"Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Company dated July 1, 1999. Accompanying this
Notice is (1) a certified or a cashier's check in the amount of
$________________ payable to the Company, and/or (2) _______________ shares of
the Company's Common Stock presently owned by the undersigned and duly endorsed
or accompanied by stock transfer powers, having an aggregate Fair Market Value
as of the date hereof of $__________________, such amounts being equal, in the
aggregate, to the purchase price per share set forth in Section 3 of the
Agreement multiplied by the number of shares being purchased hereby (in each
instance subject to appropriate adjustment pursuant to Section 6 of the
Agreement).
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this _____ day
of ___________, ____.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR,
EXECUTOR OR PERSONAL
REPRESENTATIVE]
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Name:
Position (if other than Optionee):
