EXHIBIT 10(d)(5)
INTER*ACT ELECTRONIC MARKETING, INC.
1996 NONQUALIFIED STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Option Agreement") dated
as of the 15th day of September, 1999, by and between Inter*Act Electronic
Marketing, Inc., a North Carolina corporation (the "Company"), and Xxxxxxx X.
Xxxxxxx, an employee of the Company (the "Optionee"):
W I T N E S S E T H:
WHEREAS, the Company desires to provide the Optionee with an incentive
to continue employment with the Company and align his interests with those of
the Company's shareholders; and
WHEREAS, the Company desires to grant the Optionee a nonqualified stock
option under the Inter*Act Systems, Incorporated 1996 Nonqualified Stock Option
Plan (the "Plan"), a copy of which is attached hereto and incorporated by
reference, and the Optionee desires to accept such option in accordance with the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Grant of Option. Subject to the terms and conditions of this
Agreement and the Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase all or any portion of twenty-eight thousand (28,000)
shares of the Company's Common Stock (the "Common Stock") at an exercise price
of Eight Dollars and Fifty Cents ($8.50) per share (the "Exercise Price"). This
Option is not intended to be an incentive stock option as defined in Section 422
of the Internal Revenue Code of 1986, as amended (the "Code").
2. Term of Option. Unless sooner terminated in accordance with Section
5 hereof, this Option shall terminate and be no longer exercisable after ten
years from the date hereof. Subject to the further limitations and restrictions
as provided in the Plan and this Agreement, the Option shall vest and be
exercisable to the extent of 9,333 shares on and after the first anniversary
date of this Option, to the extent of 18,666 shares on and after the second
anniversary date of this Option (to the extent not previously exercised) and to
the extent of all shares subject to this Option on and after the third
anniversary date of this Option (to the extent not previously exercised).
Notwithstanding the foregoing, in the event the Optionee's employment with the
Company is terminated by the Company other than for Cause (as defined below),
this Option shall become exercisable in full and shall remain exercisable for
the duration of its term.
Not less than 1,000 shares may be purchased at any one time pursuant to
any exercise of this Option unless the number of shares purchased is the total
number that may be purchased under this Option at that time or unless the
Company shall otherwise consent. No fractional shares of Common Stock shall be
issued upon any exercise of this Option.
For purposes of this Agreement, "Cause" shall mean termination due to
(i) continued willful or gross neglect of duties for thirty days following
receipt by the Optionee of one or more written warnings from the Board of
Directors of the Company specifying in detail the duties neglected, (ii)
incapacity due to continuing alcohol or drug addiction, (iii) continued
intentional refusal to perform the duties for which employed thirty days
following receipt by the Optionee of one or more written warnings from the Board
of Directors of the Company specifying in detail the Optionee's misconduct, (iv)
fraud or embezzlement committed against the Company, or (v) the Optionee's
conviction for a felony.
3. Transferability of Option. The Option is not transferable by the
Optionee during the Optionee's lifetime but may be transferred only upon the
death of the Optionee by will or by the laws of descent and distribution;
provided, however that the Optionee may effect "immediate family transfers",
without payment of consideration, to the fullest extent permitted under Section
5(f) of the Plan for nonqualified stock options. The limitations on the exercise
of the Option contained in this Agreement, including, without limitation, those
set forth in Section 5 hereof relating to termination of the Option following
the termination of the Optionee's employment with the Company, shall not be
affected by and shall continue to apply following a transfer.
4. Adjustments. If the shares of Common Stock of the Company are
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities through merger, consolidation, combination, exchange of
shares, other reorganization, recapitalization, reclassification, stock
dividend, stock split or reverse stock split in which the Company is the
surviving entity, an appropriate and proportionate adjustment shall be made, as
provided in Section 8 of the Plan, in the number or kind of shares allocated to
the unexercised portion of the Option and in the Exercise Price thereof.
5. Termination of Option. Notwithstanding the term of the Option set
forth in Section 2 above, the Option shall sooner terminate as follows:
(a) If the Optionee's employment with the Company, its parent,
or any of its subsidiaries, or a corporation of a parent or subsidiary
of such corporation issuing or assuming the Option in a transaction to
which Section 424(a) of the Code applies (for purposes of this Section
5, the Company, its parent, subsidiary or such other corporation
collectively referred to as the "Company") is terminated by the Company
for Cause, then the Option or unexercised portion thereof shall
terminate on the effective date of the Optionee's termination of
employment.
(b) If the Optionee's employment with the Company is
terminated for any other reason (including but not limited to
termination by the Company other than for Cause or termination by the
Optionee voluntarily or as a result of the Optionee's death or
disability (within the meaning of Section 22(e)(3) of the Code)), then
the Option or unexercised portion thereof shall terminate on the date
which is three years from the effective date of the Optionee's
termination of employment.
Any Option that may be exercised for a period following termination of
the Optionee's employment as described in subparagraphs (a) and (b) above of
this Section 5, may be exercised
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only to the extent it was exercisable immediately before such termination
(except as provided in the last sentence of Section 2 above) and in no event
after the Option would expire by its terms without regard to such termination.
6. Method of Exercise. The Option shall be exercised by the tender of
payment and delivery to the Company at its principal place of business of a
written notice, at least five days prior to the proposed date of exercise, which
notice shall:
(a) state the election to exercise the Option, the number of
shares of Common Stock with respect to which the Option is being
exercised, and the name, address, and social security number of the
person in whose name the stock certificate or certificates for such
shares of Common Stock is to be registered;
(b) contain any such representations and agreements as to
Optionee's investment interest with respect to such shares of Common
Stock as shall be reasonably required by the Board of Directors or the
Committee; and
(c) be signed by the person entitled to exercise the Option,
and if the Option is being exercised by any person or persons other
than the Optionee, be accompanied by proof, satisfactory to the
Committee, of the right of such person or persons to exercise the
Option.
Payment of the Exercise Price may be made in cash or by certified or
cashiers check. Payment may also be made by surrendering shares of Common Stock
(including any shares of Common Stock received upon a prior or simultaneous
exercise of the Option) at the then fair market value of such shares, as
determined in accordance with Section 5(d) of the Plan. Payment may also be made
by combining cash, check and shares of Common Stock.
After receipt of such notice in a form satisfactory to the Committee and
the acceptance of payment, the Company shall deliver to the Optionee a
certificate or certificates representing the shares purchased hereunder;
provided, however, that if any law or regulation requires the Company to take
any action with respect to the shares specified in such notice before the
issuance thereof, the date of delivery of such shares shall be extended for the
period necessary to take such action.
7. Tax Matters. The Optionee acknowledges that, upon exercise of the
Option, the Optionee will recognize taxable income generally in an amount equal
to the difference between the fair market value of the shares purchased upon
exercise and the Exercise Price paid therefor, and the Company may have certain
withholding obligations for income and other taxes. It shall be a condition to
the Optionee's exercise of the Option and receipt of a stock certificate
covering Shares purchased pursuant to the Option that the Optionee pay to the
Company such amounts as it is required to withhold or, with the consent of the
Company, that the Optionee otherwise provide for the satisfaction of the
Company's withholding obligation. If any such payment is not made by the
Optionee, the Company may deduct the amounts required to be withheld from
payments of any kind to which the Optionee would otherwise be entitled from the
Company.
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8. Rights of a Shareholder. The Optionee shall not be deemed for any
purpose to be a shareholder of the Company with respect to any shares covered by
this Option unless this Option shall have been exercised and the Exercise Price
paid in the manner provided herein. No adjustment will be made for dividends or
other rights where the record date is prior to the date of exercise and payment.
Upon the exercise of the Option and the issuance of the certificate or
certificates evidencing the shares of Common Stock received, except as otherwise
provided herein, the Optionee shall have all the rights of a stockholder of the
Company including the rights to receive all dividends or other distributions
paid or made with respect to such shares.
9. Compliance with Securities Laws. The Optionee recognizes that any
registration of the shares of Common Stock issuable pursuant to this Option
under applicable federal and state securities laws, or actions to qualify for
applicable exemptions from such registrations, shall be at the option of the
Company. The Optionee acknowledges that, in the event that no such registrations
are undertaken and the Company relies on exemptions from such registrations, the
shares shall be issued only if the Optionee qualifies to receive such shares in
accordance with the exemptions from registration on which the Company relies and
that, in connection with any issuance of certificates evidencing such shares,
the Board of Directors may require appropriate representations from the Optionee
and take such other action as the Board of Directors may deem necessary,
including but not limited to placing restrictive legends on such certificates
and placing stop transfer instructions in the Company's stock transfer records,
or delivering such instructions to the Company's transfer agent, in order to
assure compliance with any such exemptions. Notwithstanding any other provision
of the Plan or this Agreement (i) no shares will be issued upon any exercise of
the Option unless and until such shares have been registered under all
applicable federal and state securities laws or unless, in the opinion of
counsel satisfactory to the Company, all actions necessary to qualify for
exemptions from such registrations shall have been taken and (ii) the Company
shall have no obligation to undertake such registrations or such actions
necessary to qualify for exemptions from registrations and shall have no
liability whatsoever for not doing so except to refund any option price tendered
to the Company.
10. Shareholders' Agreement. The Optionee understands and agrees that
the shares of Common Stock issuable upon exercise of this Option shall also be
subject to the restrictions on transfer and other provisions of the
shareholders' agreement, if any, that may be in effect among the Company and all
its shareholders as of the date of any exercise of this Option. As a condition
to the exercise of this Option, the Optionee agrees that he will become a party
to any such shareholders' agreement by executing a joinder agreement or other
appropriate document. In the event that the Shareholders' Agreement dated as of
April 16, 1993, as amended by Amendment No. 1 thereto dated as of June 17, 1994,
has terminated as a result of a public offering of capital stock of the Company
prior to the exercise of this Option, the Optionee nevertheless agrees to be
bound by the lock-up agreement contained in Section 23 thereof or any similar
lock-up agreement then in effect with respect to the Company's shareholders.
11. Legends. Until the shares of Common Stock issued upon exercise of
this Option are registered under the Securities Act of 1933, as amended, the
certificate or certificates evidencing such shares shall bear substantially the
following legend:
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The shares evidenced by this certificate have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of
any state. The shares may not be sold, transferred, pledged or
hypothecated in the absence of any effective registration statement
under the Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities laws of
any state, or an opinion of counsel satisfactory to the Company that
such registration or qualification is not required.
Such certificate or certificates shall also bear any legend required by the
Shareholders' Agreement.
12. Specific Performance. The Optionee agrees that in the event of any
violation of this Agreement, an action may be commenced by the Company for any
such preliminary and permanent injunctive relief and other equitable relief in
any court of competent jurisdiction in the State of North Carolina or in any
other court of competent jurisdiction. The Optionee hereby waives any objections
on the grounds of improper jurisdiction or venue to the commencement of an
action in the State of North Carolina and agrees that effective service of
process may be made upon him by mail under the notice provisions contained in
Section 16 hereof.
13. Construction. Whenever the word "Optionee" is used in any provision
of this Agreement under circumstances where the provision should logically be
construed to apply to (i) the estate, personal representative, or beneficiary to
whom this Option may be transferred by will or by the laws of descent and
distribution or (ii) the guardian or legal representative of the Optionee acting
pursuant to a valid power of attorney or the decree of a court of competent
jurisdiction, then the term "Optionee" shall be construed to include such
estate, personal representative, beneficiary, guardian or legal representative.
14. Severability. The provisions of this Agreement shall be severable
and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereto.
15. Successor and Assigns. The terms of this Agreement shall be binding
upon and shall enure to the benefit of any successors or assigns of the Company
and of the Optionee and of the Common Stock issued or issuable upon the exercise
hereof.
16. Notices. Notices under this Agreement shall be in writing and shall
be deemed to have been duly given (i) when personally delivered, (ii) when
forwarded by Federal Express, Airborne, or another private carrier which
maintains records showing delivery information, or (iii) when placed in the
United States Mail and forwarded by registered or certified mail, return receipt
requested, postage prepaid, addressed to the party to whom such notice is being
given.
17. Modification. This Agreement is the entire agreement and
understanding of the parties hereto with respect to the Option granted herein
and supersedes any and all prior and contemporaneous negotiations,
understandings and agreements with regard to the Option and the matters set
forth herein, whether oral or written. No representation, inducement, agreement,
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promise or understanding altering, modifying, taking from or adding to the terms
and conditions hereof shall have any force or effect unless the same is in
writing and validity executed by the parties hereto.
18. Governing Law. This Agreement shall be governed in accordance with
the laws of the State of North Carolina.
19. Multiple Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
INTER*ACT ELECTRONIC MARKETING, INC.
ATTEST:
By: /s/ Xxx X. Xxxxxxxxx
/s/ Xxx X. Xxxxxx, Xx. Title: President
Assistant Secretary
[Corporate Seal]
OPTIONEE:
/s/ Xxxxxxx X. Xxxxxxx [SEAL]
Xxxxxxx X. Xxxxxxx
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