[LETTERHEAD OF AVERT INC. APPEARS HERE]
AVERT, INC.
AMENDED AND RESTATED 1994 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
This Agreement (the "Agreement") is made July 1, 1996, between Avert,
Inc., a Colorado Corporation (the "Company"), and Xxxxx X. Xxxxxx (the
"Optionee"). The Company hereby grants the Optionee an option (the "Option") to
purchase Thirty Thousand (30,000) of the Company's common shares, no par value
(the "Common Shares"), a purchase price (the "Option Price") of $5.75 per Common
Share. The Option has been granted pursuant to the Avert, Inc. Amended and
Restated 1994 Stock Incentive Plan (the "Plan") and shall include and be subject
to all provisions of the Plan, which are hereby incorporated herein by
reference, and shall be subject to the following provisions of the Agreement.
1. Terms and Vesting. Subject to the provisions of this Agreement,
including but not limited to paragraph 6 hereof, and the Plan, this
option may by exercised in blocks of 100 shares or any multiple
thereof after the date of the Agreement and prior to 5:00 p.m., on
July 1, 2006, (the "Expiration Date") but not thereafter, in
accordance with the following:
(a) immediately on July 1, 1997, this option may be exercised for
up to 6,000 shares of the total Common Shares covered hereby;
and
(b) immediately on July 1, of each of the four succeeding years,
this option may be exercised on each of those dates for up to
an additional 6,000 shares of the total Common Shares covered
hereby;
so that on and after July 1, 2001, and continuing until the
Expiration Date this option may be exercised for up to 100% of the
total Common Shares included in this option; provided, however
that notwithstanding the provisions of 1(a) or 1(b) hereof, but
subject to the further provisions of this Agreement, if prior to
July 1, 2001, Optionee's employment with the Company is terminated
by the company without cause under the terms of the Employment
Agreement between the Company and the Optionee, dated as of July
1, 1996, and a Change in Control as defined in the Plan has not
occurred thertofore, this Option may be exercised for
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[LETTERHEAD OF AVERT INC. APPEARS HERE]
up to an additional 3,000 share of the total Common Shares covered
hereby (or in the event such termination should occur prior to the
first anniversary date of this Agreement and a Change in Control has
not theretofor occurred, 3,000 shares of the total Common Shares
covered hereby), effective on the date of such termination.
2. Method of Exercise. Exercise of this option shall be affected by the
Optionee giving written notice to the Company (in the form attached hereto
as Exhibit A, whose covenants and substantive provisions are hereby made
part of this Agreement) which shall:
(a) state that the Option is thereby being exercised, the number of
shares of Common Shares with respect to which the option is being
exercised, each person in whose name any certificates for the
Common Shares should be registered and his or her address and
social security number;
(b) be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by anyone other
that the Optionee, be accompanied by proof satisfactory to
counsel for the Company of the right of such person or persons to
exercise the Option under the Plan and all applicable laws and
regulations; and
(c) be accompanied by such representations, warranties or agreements
with respect to the investment intent of such person or persons
exercising the Option as the Company may reasonably request in
form and substance satisfactory to Counsel for the Company.
3. Payment of Price. Upon exercise of the Option, the Company shall deliver a
certificate or certificates for such Common Shares to the specified person
or persons at the specified time upon receipt of the full purchase price
for such Common Shares by any method of payment authorized by the Plan.
4. Transferability. The Option shall not be transferable by the Optionee
except as expressly provided by the Plan. The Option shall be exercisable
(subject to any other applicable restrictions on exercise) only by the
Optionee for his own account, except in the events of the death or
disability of the Optionee, in either of which events the
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[LETTERHEAD OF AVERT, INC. APPEARS HERE]
Option shall be exercisable (subject to any other applicable restrictions on
exercise) only by the Optionee's estate (acting through its fiduciary) or by
the Optionee's duly authorized legal representative, respectively.
5. Restrictions on Exercise. The option is subject to all restrictions in the
Agreement on in the Plan. As a condition of any exercise of the Option,
the Company may require the Optionee or his successor to make any
representation and warranty to comply with any applicable law or
regulation or to confirm any factual matters reasonably requested by the
counsel for the Company.
6. Early Termination of Option. Notwithstanding paragraph 1 of this Agreement,
the Option shall terminate, expire and become invalid and nonexercisable on
the date three months following the date of termination of the Optionee's
employment as an employee of the Company or a subsidiary corporation (other
than by reason of death or permanent and total disability within the meaning
of Section 22(e) 3) of the Internal Revenue Code of 1986, as amended (the
"Code").
7. Taxes. The Optionee hereby agrees to pay to the Company, in accordance with
the terms of the Plan, any federal, state or local taxes of any kind required
by law to be withheld with respect to the Option granted hereunder. If the
Optionee does not make such payments to the Company, the Company shall have
the right to withhold from any payments of any kind otherwise due to the
Optionee from the Company, and federal, state or local taxes of any kind
required by law to be withheld with respect to the Option or the Common
Shares to be purchased by the Optionee under this Agreement. The Option shall
be treated as an incentive stock option under Section 422 or any successor
section thereto of the Code.
8. Investment Representation. The Optionee agrees that any Common Shares of the
Company which the Optionee may acquire by virtue of this Option shall be
acquired for investment purposes only and not with a view to distribution or
resale, and may not be transferred, sold, assigned, pledged, hypothecated or
otherwise disposed of by the Optionee unless (I) a registration statement or
post-effective amendment to a registration statement under the Securities Act
of 1933 as amended (the "Securities Act"), with respect to said Common
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[LETTERHEAD OF AVERT, INC. APPEARS HERE]
Shares has become effective so as to permit the sale or other
disposition of said shares by the Optionee; or (II) there is
presented to the Company an opinion of Counsel satisfactory to the
Company to the effect that the sale or other proposed disposition
of said shares by the Optionee may lawfully be made otherwise than
pursuant to an effective registration statement or post-effective
amendment to a registration statement relating to the said shares
under the Securities Act.
9. Consent to Jurisdiction. The Optionee hereby consents to the
jurisdiction of the state court of general jurisdiction sitting in
Larimer County, Colorado, to resolve all questions arising under or
out of this Agreement.
10. Definitions. Unless otherwise defined in the Agreement,
capitalized terms will have the same meaning given to them in the
Plan.
DATE OF GRANT: July 1, 1996 By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, President
ACCEPTANCE OF AGREEMENT
The Optionee hereby; (a) acknowledges receiving a copy of the Plan,
which is attached to this Agreement, and represents that he is familiar
with all provisions of the Plan; (b) accepts this Agreement and the
Option granted to him under this Agreement subject to all provisions of
the Plan and this Agreement:; and (c ) agrees to accept as binding,
conclusive and final all decisions or interpretations of the Company.
DATED 7/01/96 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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