Exhibit 4.10
AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION AGREEMENT
NET VALUE, INC. (the "Company") hereby grants to XXXXXXX X. XXXXX (the
"Optionee") an option to purchase shares of Common Stock (the "Shares") of the
Company, at the price set forth herein subject to the terms set forth herein,
and in all respects subject to the terms and provisions of the Net Value, Inc.
1996 Non-Qualified Stock Option Plan (as amended, the "Plan"), which terms and
provisions are hereby incorporated by reference herein. This Amended and
Restated Non-Qualified Stock Option Agreement (this "Agreement") amends and
restates and makes null and void the Non-Qualified Stock Option Agreement, dated
September 19, 1996, between the Company and the Optionee, and any and all
Options granted thereunder (collectively, the "Prior Option Agreement"). Unless
the context herein otherwise requires, the terms defined in the Plan shall have
the same meanings herein.
1. Nature of the Option. This Option is intended to be a nonstatutory
stock option and is not intended to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or to otherwise qualify for any special tax benefits to the Optionee.
2. Date of Grant; Term of Option. This Option is granted as of
September 19, 1996 and, subject to the specific terms contained herein, may not
be exercised later than the fifth anniversary of each Vesting Event (as
hereinafter defined) with respect to such Option.
3. Option Exercise Price and Vesting. Subject to the terms and
conditions herein set forth and set forth in the Plan, the Company hereby grants
to Optionee an option to purchase an aggregate number of Shares of the Company
at the option price as follows:
(a) An option to purchase a total of 268,000 Shares, of which
(i) 110,000 shall have an exercise price of $.63 per share, 60,000 of which
vested and were fully exercisable as of September 19, 1996, and 50,000 of which
have vested and were fully exercisable as of September 19, 1997, and (ii)
158,000 shall have an exercise price of $.80 per share, all of which have vested
and were fully exercisable as of September 19, 1997.
(b) An option to purchase a total of 632,000 Shares at the
exercise prices set forth below. This Option shall vest and become exercisable
in annual installments, the Optionee having the right hereunder to purchase from
the Company, on and after the following dates (each such vesting period being
hereinafter referred to as a "Vesting Year" and each such date being hereinafter
referred to as a "Vesting Event"), the following number of Shares:
September 19 Shares Exercise Price
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1998 158,000 $4.00
1999 158,000 $5.00
2000 158,000 $6.00
2001 158,000 $7.00
(c) Notwithstanding the vesting and exercisability of any
Option granted hereunder, without the prior written consent of the Company,
Optionee may not sell, transfer, gift, pledge, hypothecate, assign or otherwise
dispose of any Shares issuable thereunder or any right or interest therein
granted under this Section 3, whether voluntary, by operation of law or
otherwise, prior to September 19, 1998.
(d) In the event that the Optionee's employment with the
Company is terminated:
(i) (A) by the Company for cause (other than death or
disability) as set forth in Section 5.1 of Optionee's Employment Agreement or
(B) by the Optionee without cause (including his resignation), then Optionee
shall be entitled, for a period of two (2) years from the effective date of such
termination, to exercise all Options which have vested and become exercisable
pursuant to the provisions of Section 3 hereof prior to the effective date of
such resignation. All Options not so exercised shall terminate.
(ii) (A) by the Company without cause or (B) by the
Optionee for cause pursuant to Section 5.2 of the Employment Agreement or (C) by
reason of the Optionee's death or disability, the Optionee (or, in the case of
Optionee's death, the Optionee's estate or a person who acquired the right to
exercise this Option by bequest or inheritance, or, in the case of disability,
by the Optionee or his legal guardian or representative, as applicable) shall be
entitled, for a period of five (5) years from the effective date of such
termination (the "Post-Termination Exercise Period"), to exercise all Options
granted to Optionee in Section 3 hereof, provided that the Optionee agrees to
forbear from terminating his employment for cause pursuant to Section 5.2 of the
Employment Agreement based on the Company's failure to maintain appropriate
levels of director and officer liability insurance, until the earlier of March
31, 1998 or 30 days after the Company's successful completion of an initial
public offering of any class of its equity securities (an "IPO"). All Options
not so exercised shall terminate.
(iii) by the Company or the Optionee following a
Change of Control (as such term is defined in the Plan), all unvested and
unexercisable Options, granted pursuant to Section 3 hereof, shall immediately
vest and become exercisable during the Post-Termination Exercise Period. All
Options not so exercised shall terminate.
(iv) the Company shall be obligated to file and cause
to become effective, within twelve (12) months after the effective date of such
termination, a registration statement on Form S-8 with the SEC covering the
public resale of any and all Shares issuable upon the exercise of all Options
which have vested and become exercisable pursuant to the provisions of this
Section 4.
4. Exercise of Option. This Option shall be exercisable during its term
only in accordance with the terms and provisions of the Plan and this Option as
follows:
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(a) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise this Option, the
number of Shares in respect to which this Option is being exercised and such
other representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company hereunder or pursuant
to the provisions of the Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Secretary
of the Company or such other person as may be designated by the Company. The
written notice shall be accompanied by payment of the purchase price along with
any other agreements as the Company may require. Payment of the purchase price
shall be by check or such consideration and method of payment authorized by the
Board pursuant to the Plan. The certificate or certificates for the Shares as to
which the Option shall be exercised shall be registered in the name of the
Optionee and shall be legended as required under this Agreement, the Plan,
and/or applicable law.
(b) Restrictions on Exercise. This Option may not be exercised
if the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of this Option, the Company may require the Optionee
to make any representation and warranty to the Company as may be required by any
applicable law or regulation, provided that such representation and warranty
shall not alter Optionee's right to sell any of the Shares, subject, however, to
customary and reasonable holdbacks in connection with any public sale of the
Company's Common Stock as reasonably required by the Company's underwriter(s).
5. Investment Representations. Unless the Shares have been registered
under the Securities Act, in connection with the acquisition of this Option, the
Optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise
of this Option, he will be acquiring the Shares for investment for his own
account, not as a nominee or agent, and not with a view to, or for resale in
connection with, any distribution thereof.
(b) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or controlling
personal and by reason of his business or financial experience, has, and could
be reasonably assumed to have, the capacity to protect his interests in
connection with the acquisition of this Option and the Shares.
6. Forfeiture of Option. Notwithstanding any other provision of this
Option, if it is finally determined by a court of competent jurisdiction or
other tribunal or panel having jurisdiction over such dispute that the Optionee
(i) has disclosed trade secrets or confidential information of the Company in
contravention of Section 8 of Optionee's Employment Agreement, or (ii) has
breached any agreement with the Company in respect of confidentiality,
nondisclosure, noncompetition or otherwise, all unexercised Options shall
terminate as of the date of such determination. In the event of such a
determination, in addition to immediate termination of all unexercised Options,
the Optionee shall forfeit all Option shares for which the Company has not yet
delivered share certificates to the Optionee and the Company shall refund to the
Optionee the Option price paid to it. Notwithstanding anything to herein to the
contrary, the Company may withhold delivery of share certificates pending the
resolution of any inquiry that could lead to a determination resulting in
forfeiture.
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7. Continuation of Employment or Engagement. Neither the Plan nor this
Option shall confer upon Optionee any right to continue in the service of the
Company or limit, in any respect, the right of the Company to discharge the
Optionee at any time in accordance with the terms of Optionee's Employment
Agreement.
8. Withholding. The Company reserves the right to withhold, in
accordance with any applicable laws, from any consideration payable to Optionee
any taxes required to be withheld by federal, state or local law as a result of
the grant or exercise of this Option or the sale or other disposition of the
Shares issued upon exercise of this Option. If the amount of any consideration
payable to the Optionee is insufficient to pay such taxes or if no consideration
is payable to the Optionee, upon the request of the Company, the Optionee (or
such other person entitled to exercise the Option pursuant to Section 3(c)
hereof) shall pay to the Company an amount sufficient for the Company to satisfy
any federal, state or local tax withholding requirements it may incur, as a
result of the grant or exercise of this Option or the sale or other disposition
of the Shares issued upon the exercise of this Option.
9. The Plan. This Option is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan as
such Plan may be amended from time to time in accordance with the terms thereof.
Pursuant to the Plan, the Board of Directors of the Company is authorized to
adopt rules and regulations not inconsistent with the Plan as it shall deem
appropriate and proper. A copy of the Plan in its present form is available for
inspection during business hours by the Optionee or the persons entitled to
exercise this Option at the Company's principal office.
10. Entire Agreement. This Agreement, together with the Plan and the
other exhibits attached thereto or hereto, represents the entire agreement
between the parties and supersedes and makes null and void the Prior Option
Agreement.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware.
12. Amendment. Subject to the provisions of the Plan, this Agreement
may only be amended by a writing signed by each of the parties hereto.
DATE: December 19, 1997 NET VALUE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Director
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ACKNOWLEDGMENT
The Optionee acknowledges receipt of a copy of the Plan, a copy of
which is attached hereto, and represents that he has read and is familiar with
the terms and provisions thereof, and hereby accepts this Option subject to all
of the terms and provisions thereof. The Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board of
Directors or the Committee upon any questions arising under the Plan. In
addition, the Optionee acknowledges that this Amended and Restated Non-Qualified
Stock Option Agreement supersedes and makes null and void the Prior Option
Agreement.
DATE: /s/ Xxxxxxx X. Xxxxx
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Optionee: XXXXXXX X. XXXXX
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Address
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City, State, Zip
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON THE EXERCISE
OF THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE, TRANSFER OR DISTRIBUTION THEREOF. NO SUCH SALE,
TRANSFER OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATING THERETO OR A SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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