1
EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 27th day of June, 2000 by and between Corniche Group
Incorporated, a Delaware corporation having offices at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇ ▇. ▇▇▇▇ (the
"Executive").
WHEREAS, the Company and the Executive wish to set forth the terms and
conditions of the Executive's employment by the Company.
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. The Company agrees to employ the Executive in the capacity
herein after set forth, for the term specified in paragraph 2, and the
Executive agrees to accept such employment, upon the terms and
conditions hereinafter set forth.
2. Term. This Agreement shall be for a term commencing on [June 26th,
2000] (the "Effective Date") and unless this Agreement is sooner
terminated under the provisions hereof, expiring three years
thereafter (the "Term").
3. Duties and Responsibilities.
(a) During the Term, the Executive shall serve as an officer of the
Company and shall have the title of Vice President Chief
Financial Officer. The Term may be extended for such duration and
upon such terms and conditions as to which the Company and the
Executive may agree, on or prior to, the expiration of the Term.
(b) The Executive shall devote substantial business efforts to the
Company. Other business activities of the Executive shall be
limited in time and scope and not conflict with the terms of this
Agreement. The Executive will (i) devote his best efforts, skill
and ability to promote the Company's interest; (ii) carry out his
duties in a competent and professional manner; (iii) work with
other employees of the Company in a competent and professional
manner and (iv) generally promote the best interests of the
Company.
(c) The Executive's normal place of business shall be ▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(d) The Executive shall have the powers and duties commensurate with
his position and the authority to perform these and other such
duties as may reasonably be assigned from time to time that are
not inconsistent with such position.
2
4. Compensation.
(a) As compensation for services hereunder and in consideration of
his agreement not to compete as set forth in Section 9 below,
during the Term, the Company shall pay the Executive in
accordance with the Company's normal payroll practices base
salary compensation at an annual rate of $75,000.00 less required
tax withholding amounts. The annual rate of salary compensation
may be reviewed and increased at the discretion of the Board.
Annual bonuses may be awarded at the sole discretion of the
Board.
(b) As additional consideration for the Executive's agreement to
provide services to the Company hereunder, the Executive will
receive, non-qualified stock options having a term of five years
and covering a total of 100,000 of the Company's shares of common
stock. Said options will be granted under the terms of an Option
Agreement dated the date hereof and annexed hereto as Exhibit A
at the exercise prices and on the vesting terms set forth
therein.
5. Expenses: Fringe Benefits.
(a) In addition to the compensation provided for under Section 4, the
Company agrees to pay or to reimburse the Executive during the
Term for all reasonable, ordinary and necessary vouchered
business or entertainment expenses incurred in the performance of
his duties hereunder in a manner established by the Company's
policy as from time to time in effect.
(b) During the Term the Executive shall be entitled to participate in
a health care plan at the Company's expense and such life
insurance and 401K plans and other employee benefit plans which
become available to senior employees of the Company, including
participation in any stock plans and annual incentive plans
established by the Company. The executive may add family members
to the company's health plan at the executive's expense.
(c) The Executive shall be entitled to a combined 2 weeks 10 business
days of paid vacation per calendar year in addition to ten 10
public holidays provided that no more than ten 10 consecutive
days of vacation shall be taken at any one time without the prior
approval of the Chief Executive Officer of the Company.
2
3
6. Discharge by Company.
(a) The Company shall be entitled to terminate the Term and to
discharge the Executive for "cause". The term "cause" shall be
limited to the following.
(i) The Executive's failure or unreasonable refusal to perform
his duties and responsibilities under this Agreement.
(ii) Dishonesty affecting the Company.
(iii) Conviction of a felony or of any crime involving fraud or
misrepresentations.
(iv) The Executive's failure to adequately perform his
responsibilities.
(v) The commission of a willful or intentional act which could
injure the reputation, business or business relationships
of the Company.
(vi) Any material breach of this Agreement, if such breach is
not cured within 30 days after receipt by the Executive of
written notice thereof from the Company, and
(b) Disability pursuant to Section 7 hereof.
(c) If Executive's employment is terminated by the Company without
cause, in addition to the salary and benefits accrued through the
date of termination, Executive will receive as severance an
amount equal to 18 months base salary. Such severance payment
shall be payable in equal installments or as mutually agreed by
the Executive and the Company in a lump sum discounted using the
prime rate then in effect at Citibank, N.A. In addition to his
base salary the Company will pay Executive the cost of continuing
medical insurance. Termination without cause shall include action
by the Company, without Executive's consent, pursuant to which
his duties or title are materially reduced or assignment of
duties become materially inconsistent with duties stated herein.
7. Disability, Death.
(a) If the executive shall be unable to perform his duties hereunder
by virtue of physical or mental incapacity or disability (from
any cause or causes whatsoever) in substantially the manner and
to the extent required hereunder prior to the commencement of
such disability (all such causes being herein referred to as
"disability") and the Executive shall fail to have performed
substantially such duties for periods aggregating ninety (90)
days, whether or not continuous, in any continuous period of one
hundred eighty (180) days, the Company shall have the right to
terminate the Executive's employment hereunder as at the end of
any calendar month
3
4
upon written notice to him. Said notice of intention to terminate
the Executive must be given by the Company within ninety (90)
days following the 90th day of disability, in which case the
Executive shall be entitled to his base salary compensation to
the end of such calendar month and for a continuing period of
three (3) months thereafter payable on the regular payroll
schedule.
(b) In the case of the death of the Executive, this Agreement shall
terminate and the company shall be obligated to pay to the
Executive's estate or as otherwise directed by the Executive's
duly appointed and authorized legal representative, his then base
salary compensation and all accrued benefits through the date of
death.
8. Voluntary Termination. The Executive may terminate his employment for
any reason at any time upon ninety (90) days prior written notice to
the Company. If the Executive voluntarily terminates his employment
prior to the term hereunder, he shall only be entitled to receive
compensation accrued through the date of termination and shall not be
entitled to any prorated amounts for vacation pay.
9. Confidentiality; Covenant Against Competition; Intellectual Property.
(a) The Executive recognizes and acknowledges that all information
pertaining to the affairs, business, clients or customers of the
Company or any of its subsidiaries or affiliates or predecessors
(any or all of such of such entities being hereinafter referred
to as the "Businesses"), as such information may exist from time
to time, other than information that the Company has previously
made publicly available or which has otherwise entered the public
domain through no fault of the Executive, is confidential
information and is a unique and valuable asset of the Businesses,
access to and knowledge of which will be essential to the
Executive's duties under this Agreement. In consideration of the
payments made to him hereunder, the Executive shall not, except
to the extent reasonably necessary in the performance of his
duties under this Agreement, during the term of his employment
hereunder and thereafter, divulge to any person, firm,
association, corporation or governmental agency, any information
concerning the affairs, business, clients or customers of the
Business (except such information as is required by law to be
divulged to a government agency or pursuant to subpoena or
similar lawful process), or make use of any such information for
his own purposes or for the benefit of any person, firm,
association, company, corporation (except the Businesses) or
entity and shall use his reasonable best efforts to prevent the
disclosure of any such information by others. All records,
memoranda, letters, books,
4
5
papers, reports, customer lists, accountings or other data and
records and documents relating to the Businesses, whether made by
the Executive or otherwise coming into his possession, are
confidential information and are, shall be, and shall remain the
property of the Businesses. No copies thereof shall be made which
are not retained by the Businesses, and the Executive agrees, on
termination of his employment, that he will not retain or make
copies of any such documents relating to the Businesses and, on
demand of the Company, deliver the same to the Company.
(b) All information and all of the Executive's interest in trade
secrets, trademarks, computer programs, customer information,
customer lists, employee lists, products, procedures, copyrights,
patents and developments developed by the Executive as a result
of, or in connection with, his employment hereunder, shall belong
to the Company; and without further compensation, but at the
Company's expense, upon the request of the Company, the Executive
shall execute any and all assignments or other documents and take
any and all such other action as the Company may reasonably
request in order to vest in the Company all of the Executive's
right, title, and interest in and all of the foregoing items,
free and clear of all liens, charges and encumbrances of the
Executive of any kind.
(c) In consideration of the payments made to him hereunder, during
the period commencing on the effective date of the termination of
his employment and ending on the second (2nd) anniversary of such
effective date of termination, or in the case of termination for
any reason during the Trail Period (90) days ending on the first
(1st) anniversary of such effective date of termination
(collectively, such periods to be referred to as the "Restrictive
Period"), the Executive shall not, without the express prior
written approval of the Board, as evidenced by a resolution of
the Board, directly or indirectly, for himself or on behalf of or
in conjunction with, any other person, persons, company,
partnership, corporation or business of whatever nature:
(i) own or hold any proprietary interest in, be employed by or
receive remuneration from, or engage as an officer,
director or in any managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or
as a sales representative of, any corporation, company,
partnership, sole proprietorship or other entity engaged in
competition with the Company or any of its subsidiaries or
affiliates (a "Competitor") in the "Territory", other than
severance-type or retirement-type benefits from entities
constituting prior employers of the Executive;
5
6
(ii) solicit for himself or for the account of any Competitor,
any customer or client of the Company or its subsidiaries
or affiliates, or, in the event of the Executive's
termination of his employment, any entity or individual
that was such a customer or client during the eighteen (18)
month period immediately preceding the Executive's
termination of employment;
(iii) Act on behalf of himself or any Competitor to interfere
with the relationship between the Company or its
subsidiaries or affiliates and their employees, independent
contractors, customers or suppliers;
(iv) Hire an employee of the Company or induce any such employee
to leave the employment of the Company.
For the purposes of this Agreement, "Territory" shall mean each
and every State in the United States or any other country in
which the Businesses conduct business operations.
For the purposes of the preceding paragraphs, (i) the term
proprietary interest means legal or equitable ownership, whether
through shareholding or otherwise, of an equity interest in a
business, firm or entity other than ownership of less than two
(2%) percent of any class of equity interest in a publicly held
business, firm or entity and (ii) an entity shall be considered
to be "engaged in competition" if such entity is, or is a holding
company for, a company or corporation that directly competes with
any aspect of the business of the Businesses as it is being
conducted by them at the date of termination of employment, in
the Territory, with the phrase "directly competes" to be
interpreted reasonably by the parties so as to protect the
Company against unfair competition without unnecessarily
intruding on the Executive's ability to earn a living in his area
of expertise.
(d) The Executive acknowledges the reasonableness of the restrictions
contained in this Section 9. The Executive acknowledges that the
Company, and its successors and assigns would be irreparably
injured in a manner not adequately compensated by money damages
by a breach or violation of the provisions of this Section 9 by
the Executive. Therefore, in the event of any such breach or
violation (or threatened breach or violation), in addition to all
other rights and remedies which the Company, whether at law or in
equity, the Company and its successors and assigns shall be
entitled to obtain injunctive or other equitable relief against
the Executive without the need to post bond or other security in
connection therewith and the Executive hereby consents to the
entry of an order for such injunctive or other equitable relief.
(e) The Executive's agreement as set forth in this Section 9 shall
survive the expiration of the Term and the termination of the
Executive's employment with the Company.
6
7
(f) If any court determines that the provisions of this Section 9, or
any part thereof, is unenforceable because of the duration or
geographic scope of such provisions, such court shall have the
power to reduce the duration or scope of such provisions, as the
case may be, so that, as so reduced, such provisions are then
enforceable to the maximum extent permitted by applicable law.
(g) From the date hereof until the end of the Term, the Executive
will disclose to the Company all ideas, inventions and business
plans developed by him during such period which relate directly
or indirectly to the business of the Company including without
limitation, any design, logo, slogan or campaign or any process,
operation, product or improvement which may be patentable or
copyrightable. The Executive agrees that all patents, licenses,
copyrights, tradenames, trademarks, service marks, campaigns,
designs, logos, slogans and business plans developed or created
by the Executive in the course of his employment hereunder,
either individually or in collaboration with others, will be
deemed works for hire and the sole and absolute property of the
Company. The Executive agrees that, at the Company's request, he
will take all steps to secure the rights thereto to the Company
by patent, copyright or otherwise.
10. Change of Control. In the event of a "change in control" in the
Company, prior to the vesting date for any stock options provided to
the Executive under this Agreement, that adversely impacts Executive's
ability to vest in or to exercise such options, the company shall
either accelerate the vesting date of the options such that the
Executive may exercise them in timely fashion; or pay to Executive the
cash value of the options (fair market value of shares less exercise
price) immediately prior to the date of the change of control; or make
some financial arrangement making executive whole that is mutually
agreeable to the Company and the Executive. A "change in control"
shall be deemed to occur when, a corporation, partnership, association
or entity, directly or indirectly (through a subsidiary or otherwise),
(i) acquires or is granted the right to acquire, directly or though
merger or similar transaction, a majority of the Company's outstanding
voting securities or shares, or (ii) all or substantially all of the
Company's assets.
In addition, upon a change of control Executive shall have the option,
exercisable in writing within 30 days after the effective date of the
change in control, to terminate the Employment Agreement and to
receive as a severance payment an amount equal to 18 months base
salary. Such severance payment shall be payable in equal monthly
installments or, at the option of the Company, in a lump sum payment
discounted based on the then current prime rate of interest of
Citibank N.A. In addition to his base salary the Company will pay
Executive the cost of continuing medical insurance for the severance
period.
7
8
11. Resolution of Disputes. Any dispute by and among the parties hereto
arising out of or relying to this Agreement, the terms, conditions or
a breach thereof, or the rights or obligations of the parties with
respect thereto, shall be arbitrated in the [Tarrant County, Texas]
before and pursuant to then applicable commercial rules and
regulations of the American Arbitration Association, or any successor
organization. The arbitration proceedings shall be conducted by a
panel of three arbitrators, one of whom shall be selected by the
Company, one by the Executive (or his legal representative) and the
third arbitrator by the first two chosen. The parties shall use their
best efforts to assure that the selection of the arbitrators shall be
completed within thirty (30) days and the parties shall use their best
efforts to complete the arbitration as quickly as possible. In such
proceeding, the arbitration panel shall determine who is a
substantially prevailing party and shall award to such party its
reasonable attorneys', accounts' and other professionals' fees and its
costs incurred in connection with the proceeding. The award of the
arbitration panel shall be final, binding upon the parties and
nonappealable and may be entered in and enforced by any court of
competent jurisdiction. Such court may add to the award of the
arbitration panel additional reasonable attorneys' fees and costs
incurred by the substantially prevailing party in attempting to
enforce the award.
12. Enforceability. The failure of either party at any time to require
performance by the other party of any provision hereunder in no way
shall affect the right of that party thereafter to enforce the same,
nor shall it affect any other party's right to enforce the same, or to
enforce any of the other provisions of this Agreement; nor shall the
waiver by either party of the breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of such provision or
as a waiver of the provision itself.
13. Assignment. This Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred,
assigned, pledged or hypothecated by the Executive.
14. Modification. This Agreement cannot be cancelled, changed, modified,
or amended orally, and no cancellation, change, modification or
amendment shall be effective or binding, unless it is in writing,
signed by both parties to this Agreement.
15. Severability: Survival. If any provision of this Agreement is held to
be void and unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement nevertheless shall be binding
upon the parties with same effect as though the void or unenforceable
part has been severed and deleted.
16. Notice. Notices given pursuant to the provisions of this Agreement
shall be sent by certified mail, postage prepaid, or by overnight
courier, or by telex, telecopier or telegraph, charges prepaid, to the
following address:
8
9
To the Company
Corniche Group Incorporated
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
To the Executive
▇▇. ▇▇▇▇ ▇. ▇▇▇▇, residing at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
17. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
18. No Conflict. The Executive represents and warrants that he is not
subject to any agreement, instrument, judgement order or decree of any
kind, or any other restrictive agreement of any character, which would
prevent him from entering into this Agreement or which would be
breached by the Executive upon his performance of his duties pursuant
to this Agreement.
19. Entire Agreement. This Agreement represents the entire agreement
between the Company and the Executive with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties have set their hands and seals on and as of the
day and year first written above.
CORNICHE GROUP INCORPORATED
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
EXECUTIVE
/s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------
▇▇▇▇ ▇. ▇▇▇▇
Vice President CFO
9
10
EXHIBIT A
CORNICHE GROUP INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of June 27th, 2000, by and between Corniche Group
Incorporated, a Delaware corporation with its principal place of business at ▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and the
undersigned (the "Optionee").
WITNESSETH:
WHEREAS, the Company considers it desirable and in its best interests that
the Optionee be encouraged to acquire an ownership interest in the Company, and
thereby have an added incentive to advance the interests of the Company, by the
grant of an option to purchase shares of the Company's common stock, par value
$.001 per share (the "Common Stock"), on the terms and conditions hereinafter
set forth; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Optionee hereby
agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Optionee, the right, privilege and option
(the "Option") to purchase 100,000 shares of the Company's Common Stock (the
"Shares") at the exercise prices $1.88 and on the vesting terms ("Vesting
Terms") set forth in Appendix A. Such number of Shares issuable upon exercise of
the Option shall be subject to adjustment as provided in Section 7 below.
2. TIME OF EXERCISE OF OPTION.
Subject to the provisions of Section 4 below, the Option shall vest as
provided in Appendix A, provided, however, that upon a Change in Control of the
Company (as defined in the Employment Agreement between the Company and the
Optionee dated June 26th, 2000), the Option shall be immediately exercisable.
To the extent the Option is not exercised by the Optionee when it becomes
exercisable, it shall continue in full force and effect until the Expiration
Date (as hereinafter defined).
3. METHOD OF EXERCISE.
The Option shall be exercised by written notice in the form of Appendix B
hereto directed to the Company at the Company's address set forth above, duly
executed by the Optionee, specifying the number of shares being purchased and
accompanied by either (i) cash or check payable to the order of the Company in
full payment of the Purchase Price for the number of Shares being purchased, or
(ii) certificate(s), duly endorsed for transfer to the
11
Company with signature guaranteed, for that number of previously acquired Shares
having an aggregate fair market value as determined in accordance with the Plan
("Fair Market Value"), on the date of exercise equal to the full Purchase Price
for the number of Shares being purchased, or (iii) a combination of (i) and
(ii).
The Option shall not be exercisable at any time in an amount less than 100
Shares (or the remaining fraction of a Share then covered by and purchasable
under the Option if less than 100 Shares).
4. TERM OF OPTIONS; EXERCISABILITY.
(i) This Option shall expire 5 years from the date hereof of this Agreement
(the "Expiration Date"), subject to earlier termination as herein provided.
(ii) Except as otherwise provided in this Section 4, if the Optionee's
employment by the Company is terminated for any reason, the Option shall
terminate on the earlier of (i) three months after the date the Optionee's
employment is terminated, or (ii) the date on which the Option expires by its
terms.
(iii) If the Optionee's employment by, of, or to, the Company is terminated
by the Company for cause (as such term is defined in his employment agreement),
the Option will to the extent not terminated be deemed to have terminated on the
date immediately preceding the date the Optionee's employment by, or retention
as an agent, director of, or consultant to, the Company is terminated by the
Company and its subsidiaries.
(iv) If the Optionee's employment by the Company is terminated because of
disability or death, the Option shall terminate on the earlier of (i) one year
after termination, or (ii) the date on which the Option expires by its terms.
5. NON-TRANSFERABILITY.
The right of the Optionee to exercise the Option shall not be assignable or
transferable by the Optionee otherwise than by will or the laws of descent and
distribution, and the Option may be exercised during the lifetime of the
Optionee only by the Optionee. The Option shall be null and void and without
effect upon the bankruptcy of the Optionee or upon any attempted assignment or
transfer, except as hereinabove provided, including without limitation, any
purported assignment, whether voluntary or by operation of law, pledge,
hypothecation or other disposition contrary to the provisions hereof, or levy of
execution, attachment, trustee process or similar process, whether legal or
equitable, upon the Option.
6. REPRESENTATION LETTER AND INVESTMENT LEGEND.
(a) Notwithstanding the provisions of Sections 3 and 4 hereof, the Option
cannot be exercised, and the Company may delay the issuance of the Shares
covered by the exercise of the Option and the delivery of a certificate for the
Shares, until one of the following conditions shall be satisfied:
2
12
(i) The Shares with respect to which the Option has been exercised are at
the time of the issuance of the Shares effectively registered or qualified under
applicable federal and state securities acts now in force or as hereafter
amended; or
(ii) Counsel for the Company shall have given an opinion, which opinion
shall not be unreasonably conditioned or withheld, that the issuance of the
Shares is exempt from registration and qualification under applicable federal
and state securities acts now in force or as hereafter amended.
(b) In the event that for any reason the Shares to be issued upon exercise
of the Option shall not be effectively registered under the Securities Act of
1933, as amended (the "1933 Act"), upon any date on which the Option is
exercised in whole or in part, the Optionee shall give a written representation
to the Company in the form attached hereto as Exhibit A and the Company shall
place an "investment legend," so-called, as described in Exhibit A, upon any
certificate for the Shares issued by reason of such exercise. In the event that
the Company shall, nevertheless, deem it necessary or desirable to register
under the 1933 Act or other applicable statutes the Shares with respect to which
the Option shall have been exercised, or to qualify the Shares for exemption
from the 1933 Act or other applicable statutes, then the Company may take such
action and may require from the Optionee such information in writing for use in
any registration statement, supplementary registration statement, prospectus,
preliminary prospectus, offering circular or any other document that is
reasonably necessary for such purpose and may require reasonable indemnity to
the Company and its officers and directors from the Optionee against all losses,
claims, damages and liabilities arising from such use of the information so
furnished and caused by any untrue statement of any material fact therein or
caused by the omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made.
(c) The Company shall be under no obligation to qualify the Shares or to
cause a registration statement or a post-effective amendment to any registration
statement to be prepared for the purposes of covering the issue of the Shares or
to cause the issuance of the Shares to be exempt from registration and
qualification under applicable federal and state securities acts now in force or
as hereinafter amended, except as otherwise agreed to by the Company in writing
in its sole discretion and, accordingly, the Company may delay the issuance of
the Shares covered by the exercise of the Option and the delivery of a
certificate for the Shares until the Company shall have determined that all
conditions to the issuance of the Shares shall have been satisfied.
7. ADJUSTMENT IN AND CHANGES IN COMMON STOCK.
Subject to the Plan, if the outstanding shares of the Common Stock are
changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any reorganization, recapitalization,
reclassification, stock split, combination of shares, or dividends payable in
capital stock, appropriate and equitable adjustment shall be made by the Board
of Directors of the Company, in its sole discretion, in the number and kind of
shares as to which the Option or portion thereof then unexercised shall be
exercisable. Such adjustment in
3
13
the Option shall be made without change in the total price applicable to the
unexercised portion of such the Option and with a corresponding adjustment in
the Option price per share.
8. EFFECT ON OTHER RIGHTS.
This Agreement shall in no way affect the Optionee's participation in or
benefits under any other plan or benefit program maintained or provided by the
Company. Nothing in this Agreement shall be construed to give the Optionee any
right to any additional options other than in the sole discretion of the Board
of Directors of the Company or to confer on the Optionee any right to continue
in the employ of the Company or any subsidiary thereof or to continue to be
retained as an agent, director of, or consultant to, the Company, or to be
evidence of any agreement or understanding, express or implied, that the Company
will employ or continue to retain the Optionee in any particular position or at
any particular rate of remuneration, or for any particular period of time or to
interfere in any way with the right of the Company or a subsidiary thereof (or
the right of the Optionee) to terminate the employment or retention of the
Optionee at any time, with or without cause, notwithstanding the possibility
that the Option may thereby be terminated entirely.
9. RIGHTS AS A STOCKHOLDER.
The Optionee shall have no rights as a stockholder with respect to any
Shares which may be purchased by exercise of the Option until (x) the Option
shall have been exercised with respect thereto (including payment to the Company
of the Purchase Price), and (y) the earlier to occur of (i) delivery by the
Company to the optionee of a certificate therefor or (ii) the date on which the
Company is required to deliver a certificate pursuant to the Plan and this
Agreement. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such certificate is issued or required to be issued in accordance
with the Plan.
10. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY THEREIN WITHOUT
REFERENCE TO CONFLICT OF LAWS PRINCIPLES.
11. WITHHOLDING TAXES.
Whenever Shares are to be issued upon exercise of the Option, the Company
shall have the right to require the Optionee to remit to the Company an amount
sufficient to satisfy all federal, state and local withholding tax requirements,
if any, prior to the delivery of any certificate or certificates for such
Shares. The Company may agree to permit the Optionee to withhold Shares
purchased upon exercise of this Option to satisfy the above-mentioned
withholding requirement.
4
14
12. HEADINGS.
The headings contained in this Agreement are for convenience of reference
only and in no way define, limit or describe the scope or intent of this
Agreement or in any way affect this Agreement.
13. BINDING EFFECT.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed,
and the Optionee has hereunto set his or her hand and seal, all as of the day
and year first above written.
CORNICHE GROUP INCORPORATED.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Chief Executive Officer
/s/ /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
OPTIONEE
5
15
APPENDIX A
TO STOCK OPTION AGREEMENT
OPTIONS GRANTED AND VESTING PERIOD:
Set forth below are the options granted to the Optionee and the vesting schedule
with respect thereto.
Number of Shares Option Price Vesting Date
---------------- ------------ ------------
50,000 $1.88 6/26/01
25,000 $1.88 6/26/02
25,000 $1.88 6/26/03
16
EXHIBIT B
TO STOCK OPTION AGREEMENT
Date:______________________
Corniche Group Incorporated
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I hereby elect to purchase _______ shares of the Common Stock, par value
$.00001 per share, of Corniche Group Incorporated (the "Company") under the
option granted to me pursuant to the Stock Option Agreement, dated June 27th,
2000.
Enclosed is [cash] [a check] in the amount of $______.___ [______ shares of
the Company's Common Stock] in full payment of the shares being purchased
($________ per share).
Please deliver certificates representing the shares being purchased to me
at:
-----------------------------
-----------------------------
-----------------------------
I hereby acknowledge that I have been informed as follows:
1. The shares of common stock of the Company to be issued to me pursuant to
the exercise of said option have not been registered under the Securities Act of
1933, as amended (the "1933 Act"), and accordingly, must be held indefinitely
unless such shares are subsequently registered under the 1933 Act, or an
exemption from such registration is available.
2. Routine sales of securities made in reliance upon Rule 144, if
applicable, under the 1933 Act can be made only after the holding period and in
limited amounts in accordance with the terms and conditions provided by that
Rule, and in any sale to which that Rule is not applicable, registration or
compliance with some other exemption under the 1933 Act will be required.
3. The Company is under no obligation to me to register the shares or to
comply with any such exemptions under the 1933 Act.
17
4. The availability of Rule 144, if applicable, is dependent upon adequate
current public information with respect to the Company being available and, at
the time that I may desire to make a sale pursuant to the Rule, the Company may
neither wish nor be able to comply with such requirement.
In consideration of the issuance of certificates for the shares to me, I
hereby represent and warrant that I am acquiring such shares for my own account
for investment, and that I will not sell, pledge, transfer or otherwise dispose
of such shares in the absence of an effective registration statement covering
the same, except as permitted by the provisions of Rule 144, if applicable, or
some other applicable exemption under the 1933 Act. In view of this
representation and warranty, I agree that there may be affixed to the
certificates for the shares to be issued to me, and to all certificates issued
hereafter representing such shares (until in the opinion of counsel, which
opinion must be reasonably satisfactory in form and substance to counsel for the
Company, it is no longer necessary or required) a legend as follows:
"The shares of common stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
were acquired by the registered holder, pursuant to a representation and
warranty that such holder was acquiring such shares for his or her own
account and for investment, with no intention to transfer or dispose of the
same, in violation of the registration requirements of the Act. These
shares may not be sold, pledged, transferred or otherwise disposed of in
the absence of an effective registration statement under the Act, or an
opinion of counsel, which opinion is reasonably satisfactory to counsel to
the Company, to the effect that registration is not required under the
Act."
I further agree that the Company may place a stop order with its Transfer
Agent, prohibiting the transfer of such shares, so long as the legend remains on
the certificates representing the shares.
Very truly yours,
----------------------------------------
Optionee:
2
