AMENDED AND RESTATED
NON-QUALIFIED STOCK OPTION AGREEMENT
RADISH COMMUNICATIONS SYSTEMS, INC., a Delaware corporation (the "Company")
and Xxxxxx Xxxxx (the "Optionee") hereby enter into this Agreement pursuant to
which the Company reaffirms its grant to Optionee of a non-qualified stock
option to purchase shares of common stock ("Common Stock") of the Company on the
terms and conditions contained herein (the "Option").
RECITALS
WHEREAS, Optoinee and Radish Communications Systems, Inc., a Colorado
corporation and the Company's predecessor in interest ("Radish Colorado"), had
entered into that certain Stock Option dated March 13, 1991 (the "Original
Agreement") pursuant to which Optionee was granted a non-qualified stock option
to purchase shares of Common Stock of Radish Colorado (the "Original Option").
WHEREAS, certain terms of the Original Option were either ambiguous or to
be determined by subsequent events, which events did not occur as contemplated.
WHEREAS, the Company and Optionee desire to enter into this Agreement,
which supersedes, amends and restates the Original Agreement in its entirety.
1. Grant and Number of Options.
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This Option permits Optionee to purchase 40,000 shares of the
Company's Common Stock, and was granted pursuant to the terms of that certain
Agreement for Consulting Services dated February 1, 1991 by and among the
Company and Optionee. Optionee agrees and acknowledges that the number of
shares set forth in this Section 1 is the full number of shares of Common Stock
granted to Optionee, as determined pursuant to the terms of the Original Option.
2. Exercise Price of Options.
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The exercise price of the Option shall be $.125 per share.
3. Exercise of Option.
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The Option shall be immediately exercisable.
4. Method of Exercise.
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This Option shall be exercisable by written notice in the form
attached hereto 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
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investment intent with respect to such shares as may be required by the Company.
Such written notice, a form of which is attached hereto as Exhibit A, shall be
signed by the Optionee and shall be delivered in person or by certified mail to
the President of the Company prior to the expiration of the term of the Option
as set forth in Section 7 below, accompanied by full payment of the purchase
price in cash. The certificate or certificates for the shares as to which the
Option shall be exercised shall be registered in the name of the person or
persons exercising the Option.
5. Restrictions on Exercise.
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This Option may not be exercised if the issuance of such shares upon
such exercise would constitute a violation of any applicable federal or state
securities laws or other law or regulations. As a condition to the exercise of
this Option, the Company may require the Optionee to make any representation or
warranty to the Company as may be required by any applicable law or regulation.
6. Non-Transferability of Option.
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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 the Optionee only by Optionee; provided, however, that if Optionee
becomes legally disabled, Optionee's legal representative may exercise the
Option on his or her behalf, and if Optionee dies, the estate or other person
who acquired the right to exercise the option by bequest or inheritance may
exercise the option. The terms of this Option shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
7. Term of Option.
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This Option may not be exercised after March 31, 1997, and may be
exercised during such term only in accordance with the terms of this Agreement.
8. Rights of Optionee.
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No person shall have any rights as a stockholder with respect to any
shares covered by an Option until the date of the issuance of a stock
certificate(s) for the shares for which the Option has been exercised. No
adjustments shall be made for dividends or distributions or other rights for
which the record date is prior to the date such stock certificate(s) are issued.
9. Administration of Option.
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Optionee represents that he or she is familiar with the terms and
provisions hereof, and hereby accepts this Option subject to all terms and
provisions of this Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board upon any
questions arising under this Agreement.
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10. Notice of Stock, Split, Etc.
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The Company shall give Optionee 30 days prior written notice of any
stock dividend, stock split, reverse stock split or similar action which
increases or decreases the outstanding Common Stock of the Company.
11. Notice of Merger, Sale of Assets, Etc.
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The Company shall give Optionee 30 days' prior written notice of any
merger, liquidation, sale of all or substantially all of the Company's assets or
other similar transaction.
12. Notice.
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Notice hereunder shall be deemed to have been given on the date it is
deposited in first class U.S. Mail, postage prepaid, and mailed to Optionee at
the address maintained by the Company for Optionee.
Dated: September 1, 1993
RADISH COMMUNICATIONS SYSTEMS, INC.
By: /s/ Xxxxx Xxxxx
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Its: President & CEO
OPTIONEE:
Xxxxxx X. Xxxxx
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(Printed Name of Optionee)
/s/ Xxxxxx X. Xxxxx
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(Signature of Optionee)
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