Exhibit 10.4
800 TRAVEL SYSTEMS, INC.
STOCK OPTION AGREEMENT
(NON-QUALIFIED STOCK OPTION; NOT UNDER THE 1997 STOCK OPTION PLAN)
THIS AGREEMENT, made as of this 1st day of September, 1998 by 800 TRAVEL
SYSTEMS, INC., a Delaware corporation (the "Company"), with Xxxx Xxxxxxxx (the
"Holder"):
The Compensation Committee of the Board of Directors (the "Committee") has
determined that it would be to the advantage and interest of the Company to
grant the option provided for herein to the Holder as an inducement to remain in
the service of the Company or one of its subsidiaries, and as an incentive for
increased efforts during such service.
NOW, THEREFORE, the Company with the approval of the Committee hereby
grants to the Holder as of the date hereof an option (the "Option") to purchase
all or any part of 250,000 shares of Common Stock of the Company, par value $.01
per share, at a price per share of $5.00, and upon the following terms and
conditions:
1. The Option shall continue in force through December 31, 2007 (the
"Expiration Date"), unless sooner terminated as provided herein. The Option
shall become exercisable immediately as of the date first set forth above. In
the event that the Company "constructively terminates" the Holder's employment
(as such term is defined in the Holder's employment agreement with the Company),
the Option shall become exercisable as to all shares originally covered hereby
immediately as of the date of such constructive termination.
3. If the Holder shall (a) die or (b) become permanently and totally
disabled, and if the Option was otherwise exercisable, immediately prior to the
occurrence of such event, then such Option may be exercised as set forth herein
by the Holder or by the person or persons to whom the Holder's rights under the
Option pass by will or applicable law, or if no such person has such right, by
his executors or administrators, at any time within one year after the date of
death of the original Holder, or one year after the date of permanent or total
disability, but in either case, not later than the Expiration Date.
4. a. The Holder may exercise the Option with respect to all or any part
of the shares then purchasable hereunder by giving the Company written notice in
the form annexed, as provided in paragraph 8 hereof, of such exercise. Such
notice shall specify the number of shares as to which the Option is being
exercised and shall be accompanied by payment in full in cash of an amount equal
to the exercise price of such shares multiplied by the number of shares as to
which the Option is being exercised; provided that, if permitted by the Board,
the purchase price may be paid, in whole or in part, by surrender or delivery to
the Company of securities of the Company having a fair market value on the date
of the exercise equal to the portion of the purchase price being so paid. In
such event fair market value should be determined pursuant to paragraph 5 of the
Company's 1997 Stock Option Plan, the terms of which paragraph 5 are
incorporated by reference herein by this reference.
b. Prior to or concurrently with delivery by the Company to the
Holder of a certificate(s) representing such shares, the Holder shall, upon
notification of the amount due, pay promptly any amount
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necessary to satisfy applicable federal, state or local tax requirements. In the
event such amount is not paid promptly, the Company shall have the right to
apply from the purchase price paid any taxes required by law to be withheld by
the Company with respect to such payment and the number of shares to be issued
by the Company will be reduced accordingly.
5. In the event of a change in the outstanding Common Stock of the Company
by reason of a stock dividend, split-up, split-down, reverse split,
recapitalization, merger, consolidation, combination or exchange of shares,
spin-off, reorganization, liquidation or the like, then the aggregate number of
shares and price per share subject to the Option shall be appropriately adjusted
by the Board, whose determination shall be conclusive.
6. This Option shall, during the Holder's lifetime, be exercisable only by
him, and neither this Option nor any right hereunder shall be transferable by
him, by operation of law or otherwise, except by will or by the laws of descent
and distribution. In the event of any attempt by the Holder to transfer, assign,
pledge, hypothecate or otherwise dispose of this Option or of any right
hereunder, except as provided for herein, or in the event of the levy or any
attachment, execution or similar process upon the rights or interest hereby
conferred, the Company may terminate this Option by notice to the Holder and it
shall thereupon become null and void.
7. Neither the Holder nor in the event of his death, any person entitled
to exercise his rights, shall have any of the rights of a stockholder with
respect to the shares subject to the Option until share certificates have been
issued and registered in the name of the Holder or his estate, as the case may
be.
8. Any notice to the Company provided for in this Agreement shall be
addressed to the Company in care of its Secretary, 0000 Xxxx Xxxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000, and any notice to the Holder shall be addressed to him at
his address now on file with the Company, or to such other address as either may
last have designated to the other by notice as provided herein. Any notice so
addressed shall be deemed to be given on the second business day after mailing,
by registered or certified mail, at a post office or branch post office within
the United States.
9. In the event that any question or controversy shall arise with respect
to the nature, scope or extent of any one or more rights conferred by this
Option, the determination by the Committee (as constituted at the time of such
determination) of the rights of the Holder shall be conclusive, final and
binding upon the Holder and upon any other person who shall assert any right
pursuant to this Option.
800 TRAVEL SYSTEMS, INC.
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ACCEPTED AND AGREED
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Holder
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FORM OF NOTICE OF EXERCISE
TO: 800 TRAVEL SYSTEMS, INC.
0000 Xxxx Xxxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000
The undersigned hereby exercises his/her option to purchase _____ shares
of Common Stock of 800 TRAVEL SYSTEMS, INC. (the "Company") as provided in the
Stock Option Agreement dated as of _____________________, _________ at $_______
per share, a total of $_____________, and makes payment therefor as follows:
(a) To the extent of $_______ of the purchase price, the undersigned
hereby surrenders to the Company certificates for shares of its Common Stock
which, valued at $__________________ per share, the fair market value thereof,
equals such portion of the purchase price.
(b) To the extent of the balance of the purchase price, the
undersigned has enclosed a certificate or bank check payable to the order of the
Company for $________________.
A stock certificate or certificate for the shares should be delivered in
person or mailed to the undersigned at the address shown below.
The undersigned hereby represents and warrants that it is his (her)
present intention to acquire and hold the aforesaid shares of Common Stock of
the Company for his (her) own account for investment, and not with a view to the
distribution of any thereof, and agrees that he (she) will make no sale,
thereof, except in compliance with the applicable provisions of the Securities
Act of 1933, as amended.
Signature:
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Name:
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Address:
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Dated:
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