EXHIBIT 1
XXXXXXXXXXX.XXX, INC.
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
Date: June 15, 1999
TO: Xxxxxxxx Xxxxxxx
We are pleased to inform you that you have been selected by the Plan
Administrator of the xxxxxxxxxxx.xxx, Inc. (the "Company") 1999 Stock Option
Plan (the "Plan"). The Plan was adopted by the Board of Directors and approved
by the stockholders. When you sign and return to the Company the Acceptance and
Acknowledgment attached to this Stock Option Agreement you will be entitled to
receive a nonqualified option for the purchase of 100,000 shares of the
Company's common stock, par value $.01 per share ("Common Stock"), at an
exercise price of $7.00 per share (the "exercise price"), subject to the vesting
provisions set forth herein. A copy of the Plan is attached and the provisions
thereof, including, without limitation, those relating to withholding taxes, are
incorporated into this Agreement by reference. It is understood that this Option
is not intended to constitute an incentive stock option as that term is defined
in Section 422A of the Internal Revenue Code of 1986, as amended.
The terms of the option are as set forth in the Plan and in this
Agreement. The most important of the terms set forth in the Plan are summarized
as follows:
NUMBER OF SHARES: The option granted to you covers an aggregate of
100,000 shares of Common Stock.
EXERCISE PRICE: The exercise price per share of Common Stock subject to
your option is $7.00 per share (the "Exercise Price").
ADJUSTMENTS. The number of shares of Common Stock subject to your
option and the Exercise Price may be subject to adjustment under certain
circumstances as described in the Plan.
DATE OF GRANT: The date of grant of the option is June 15, 1999.
TERM: The term of the option is ten years from date of grant, unless
sooner terminated.
VESTING: Your option shall vest immediately.
EXERCISE: The vested portion of the option may be exercised, in whole
or in part, but not as to any fractional shares, during the term of the option.
You should use a Notice of Exercise of Nonqualified Stock Option in the form
attached to this Agreement when you exercise the option.
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During your lifetime only you can exercise the option. The Plan also provides
for exercise of the option by the personal representative of your estate or the
beneficiary thereof following your death.
PAYMENT FOR SHARES: The vested portion of this option may be exercised
by the delivery of:
(a) Cash, personal check (unless, at the time of exercise, the Plan
Administrator determines otherwise), certified or bank cashier's checks in an
amount equal to the aggregate Exercise Price for the number of shares as to
which the option is being exercised together with a properly executed Notice of
Exercise;
(b) Unless the Plan Administrator in its sole discretion determines
otherwise, shares of the capital stock of the Company held by you having a fair
market value at the time of exercise, as determined by the Plan Administrator in
accordance with the Plan, equal to the aggregate Exercise Price for the number
of shares as to which the option is being exercised;
(c) Unless the Plan Administrator in its sole discretion determines
otherwise, a properly executed Notice of Exercise together with instructions to
the Company to withhold from the shares that would otherwise be issued upon
exercise that number of shares having a fair market value equal to the aggregate
Exercise Price for the number of shares as to which the option is being
exercised; or
(d) A properly executed Notice of Exercise together with irrevocable
instructions to a broker to promptly deliver to the Company the amount of sale
or loan proceeds to pay the aggregate Exercise Price for the number of shares as
to which the option is being exercised;.
Upon receipt of written Notice of Exercise and payment and delivery of
any other required documentation, the Company shall deliver to the person
exercising the option a certificate or certificates for the appropriate number
of shares of Common Stock. It shall be a condition to the performance of the
Company's obligation to issue or transfer Common Stock upon exercise of this
option that you pay, or make provision satisfactory to the Company for the
payment of, any taxes which the Company is obligated to collect with respect to
the issue or transfer of Common Stock upon exercise.
TERMINATION: Your option will terminate immediately upon termination
for cause, as defined in the Plan, or three months after cessation of your
relationship with the Company or a related corporation, unless cessation is due
to death or total disability, in which case the portion of this option which is
vested at the time of such termination shall terminate one year after cessation
of such relationship. All unvested options will terminate immediately upon the
cessation of your relationship with the Company or a related corporation for any
reason, including, without limitation, termination for cause, resignation, death
or disability.
TRANSFER OF OPTION: The option is not transferable except by will or by
the applicable laws of descent and distribution or pursuant to a qualified
domestic relations order.
NOTICE: All notices sent in connection with this option shall be in
writing and, if to the
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Company, shall be delivered personally to the President of the Company or mailed
to its principal office, addressed to the attention of the President, and, if to
you, shall be delivered personally or mailed to you at the address noted on the
attached Acceptance and Acknowledgment. Such addresses may be changed at any
time by notice from one party to the other.
YOUR PARTICULAR ATTENTION IS DIRECTED TO SECTION 8 OF THE PLAN WHICH
DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO FEDERAL AND STATE SECURITIES
LAWS THAT MUST BE SATISFIED BEFORE THE OPTION CAN BE EXERCISED AND BEFORE THE
COMPANY CAN ISSUE ANY SHARES TO YOU. THE COMPANY HAS NO OBLIGATION TO REGISTER
THE SHARES THAT WOULD BE ISSUED UPON THE EXERCISE OF YOUR OPTION, AND IF IT
NEVER REGISTERS THE SHARES, YOU WILL NOT BE ABLE TO EXERCISE THE OPTION UNLESS
AN EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE PRESENT TIME, EXEMPTIONS
FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS ARE VERY LIMITED AND
MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE EXPIRATION OF THE OPTION. CONSEQUENTLY,
YOU MIGHT HAVE NO OPPORTUNITY TO EXERCISE THE OPTION AND TO RECEIVE SHARES UPON
SUCH EXERCISE. IN ADDITION, YOU SHOULD CONSULT WITH YOUR TAX ADVISOR CONCERNING
THE RAMIFICATIONS TO YOU OF HOLDING OR EXERCISING YOUR OPTIONS OR HOLDING OR
SELLING THE SHARES UNDERLYING SUCH OPTIONS.
It is the intention of the Company that this Plan comply in all
respects with Section 16(b) and Rule 16b-3 under the Securities Exchange Act of
1934 (the "Exchange Act"), to the extent applicable, and, if any Plan provision
is later found not to be in compliance with such Section or Rule, as the case
may be, the provision shall be deemed null and void, and in all events the Plan
shall be construed in favor of its meeting the requirements of Section 16(b) and
Rule 16b-3 under the Exchange Act. Notwithstanding anything in the Plan to the
contrary, the Board, in its absolute discretion, may bifurcate the Plan so as to
restrict, limit or condition the use of any provision of the Plan to
participants who are officers and directors or other persons subject to Section
16(b) of the Exchange Act without so restricting, limiting or conditioning the
Plan with respect to other participants.
All decisions or interpretations made by the Plan Administrator with
regard to any question arising hereunder or under the Plan shall be binding and
conclusive on the Company and you.
This Agreement shall bind and inure to the benefit of the parties
hereto and the successors and assigns of the Company and, to the extent provided
in the Plan, your executors, administrators, legatees and heirs.
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Please execute the Acceptance and Acknowledgment set forth below on the
enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
XXXXXXXXXXX.XXX, INC.
By: /s/ XXX XXXXXXX
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XXX XXXXXXX
CHIEF EXECUTIVE OFFICER
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ACCEPTANCE AND ACKNOWLEDGMENT
I, a resident of the State of ______________, accept the nonqualified
stock option described above and in the xxxxxxxxxxx.xxx, Inc. 1999 Stock Option
Plan, and acknowledge receipt of a copy of this Agreement, including a copy of
the Plan. I have read and understand this Agreement and the Plan, including the
provisions of Section 8.
Dated: _____________________
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Taxpayer I.D. Number
By his or her signature below, the spouse of the Optionee, if such
Optionee is legally married as of the date of his or her execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of this Agreement and the Plan.
Dated: _____________________
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Spouse's Signature
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Printed Name
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NOTICE OF EXERCISE
xxxxxxxxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
I hereby exercise my right to purchase ______ shares of Common Stock
(the "Shares") of xxxxxxxxxxx.xxx, Inc., a Delaware corporation, pursuant to,
and in accordance with, the xxxxxxxxxxx.xxx, Inc. 1999 Nonqualified Stock Option
Agreement ("Agreement") dated ________. As provided in that Agreement, I deliver
herewith a certified or bank cashier's check in the amount of the aggregate
option price (unless alternative payment methods have been approved by the Plan
Administrator). Please deliver to me stock certificates representing the subject
shares registered as follows:
Name:_________________________________________
Address:______________________________________
______________________________________
Social Security Number:_______________________
The aggregate exercise price is $___________ (total number of shares to
be purchased x $____ per share).
1. If the sale of the Shares and the resale thereof has not, prior to
the date hereof, been registered pursuant to a registration statement filed and
declared effective under the Securities Act of 1933, as amended (the "Act"), the
undersigned hereby agrees, represents, and warrants that:
(a) the undersigned is acquiring the Shares for his or her own
account (and not for the account of others), for investment and not with a view
to the distribution or resale thereof;
(b) by virtue of his or her position, the undersigned has
access to the same kind of information which would be available in a
registration statement filed under the Act;
(c) the undersigned is a sophisticated investor;
(d) the undersigned understands that he or she may not sell or
otherwise dispose of the Shares in the absence of either (i) a registration
statement filed under the Act or (ii) an exemption from the registration
provisions thereof; and
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(e) the certificates representing the Shares may contain a
legend to the effect of subsection (d) of this Section 1.
2. If the sale of the Shares and the resale thereof has been registered
pursuant to a registration statement filed and declared effective under the Act,
the undersigned hereby represents and warrants that he or she has received the
applicable prospectus and a copy of the most recent annual report, as well as
all other material sent to stockholders generally.
3. The undersigned acknowledges that the number of shares of Common
Stock subject to the Agreement is hereafter reduced by the number of shares of
Common Stock represented by the Shares.
4. The undersigned understands that there are certain tax implications
to his or her exercise of his or her right to purchase shares of Common Stock
under the Agreement. The undersigned further understands that it is his or her
obligation to confer with his or her own tax advisor with respect to such tax
implications.
Very truly yours,
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(signature)
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(please type or print name)
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