EXHIBIT 10.1
STOCK OPTION AGREEMENT UNDER THE
INFOCROSSING, INC. 2002 STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN
THIS AGREEMENT, made as of this 21st day of January 2005, by and between
INFOCROSSING, INC., formerly Computer Outsourcing Services, Inc., a Delaware
corporation with its principal office at 2 Christie Heights Street, Leonia, New
Jersey, 07605 (the "Company") and Zach Lonstein (including permitted assignees,
the "Optionee"), as defined in the Infocrossing, Inc. 2002 Stock Option and
Stock Appreciation Rights Plan, as amended.
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") and the Options and
Compensation Committee of the Board determined that the Optionee should be able
to purchase shares of the Company's common stock on terms which mirror the terms
of options the Optionee had given at $25 per share on 750,000 shares of the
Company's Common Stock owned by him (each such option shall be referred to as a
"Purchaser Call" and collectively as the "Purchasers' Calls") to those
purchasers (including their successors and assigns) under that certain
Securities Purchase Agreement dated as of April 7, 2000 between the Company and
such purchasers;
WHEREAS, any unexercised Purchaser Call shall expire on May 10, 2007 except to
the extent that the exercise of any such Purchaser Call requires notification to
be made under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, in which case, the exercise period shall be extended as provided in
such Purchaser Call;
WHEREAS, on March 7, 2002, the Board adopted a resolution, subject to
stockholder approval, to establish the Infocrossing, Inc. 2002 Stock Option and
Stock Appreciation Rights Plan (the "Plan");
WHEREAS, on June 25, 2002, the stockholders of the Company approved and adopted
the Plan; and
WHEREAS, the Plan has been amended by the Board and the Stockholders;
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Subject and pursuant to the terms and conditions hereinafter set forth and
all terms and conditions of the Plan, a copy of which is annexed hereto as
Exhibit A and made a part hereof as though set forth fully herein, the
Company agrees to and does hereby grant to the Optionee the right and
option (the "Option") to purchase an aggregate of 750,000 shares of common
stock of the Company, par value $.01 per share ("Common Stock"), to be
issued as provided in the Plan at the price of $25.00 per share.
2. Notwithstanding anything to the contrary, the Option is fully vested and
shall be immediately exercisable as of the date of this Agreement and may
be exercised or transferred in accordance with Sections 6(a) and 9 of this
Agreement, in whole or in part, at any time prior to May 11, 2008 without
regard to any termination of the Optionee's employment with the Company.
During the period after May 10, 2007 and before April 28, 2008, upon 14
days written notice, the Board, or a Committee appointed by the Board, may
require the Option to be exercised in full and failure to do so would
result in the expiration of the Option at the end of the last day of the
notice period. If all of the unexercised Purchasers' Calls do not expire on
May 10, 2007, the number of shares of Common Stock exercisable pursuant to
the Option shall be reduced by the number of shares of Common Stock
available for purchase pursuant to any expired Purchaser Call, until all of
the Purchasers' Calls expire.
3. The Option is not intended to qualify as an Incentive Stock Option within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended
from time to time (the "Code").
4. The Option granted in this Option Agreement may be exercised in whole or in
part as provided in the Plan by the Optionee's delivering or mailing to the
Company written notice of exercise in the form prescribed by the Board or
by a Committee appointed by the Board to administer the Plan, if any, duly
signed by the Optionee. Such exercise shall be effective upon (a) receipt
of such written notice by the Company and (b) payment in full to the
Company of the purchase price upon the exercise of the Option.
5. Any exercise of the Option shall be made by the delivery by the Optionee
(or his personal representative) of written notice of such exercise to the
Company at its principal office at 2 Christie Heights Street, Leonia, NJ
07605, or such other place as the Company may designate from time to time,
stating the number of shares of Common Stock with respect to which the
Option is being exercised and payment in full to the Company of the
purchase price of the Option. The purchase price for the exercise of the
Options may be paid in cash; if allowed by the Board, in shares of Common
Stock having a fair market value equal to the purchase price of the Option;
or any combination of the foregoing. The Company shall deliver, or cause to
be delivered, to the Optionee (or his personal representative, as the case
may be) stock certificates for the number of shares of Common Stock with
respect to which the Option is being exercised against delivery of (i) a
written certificate of the Optionee (or his personal representative, as the
case may be) to the effect that he is purchasing such shares for investment
and not with a view to the sale or distribution of any such shares and (ii)
such other certificates, representations and agreements of the Optionee (or
his personal representative, as the case may be) as may be required under
the Plan or as the Company shall also require in order that the Company be
reasonably assured that the issuance, delivery and disposition of such
shares are being and will be effected in compliance with the Securities Act
of 1933, as amended (the "Act"), the Rules and Regulations thereunder,
other applicable law, and the rules of each stock exchange upon which the
shares of Common Stock are listed, if any; provided, however, that if the
offer and sale of shares of Common Stock upon exercise of options granted
under the Plan is registered under the Act, the Optionee (or his personal
representative, as the case may be) need not furnish the certificate
described in clause (i) of this sentence. Certificates evidencing shares of
Common Stock issued upon exercise of the Option may contain such legends
reflecting any restrictions upon transfer of the shares evidenced thereby
as in the opinion of counsel to the Company may be necessary to the lawful
and proper issuance of such certificates. In the event of any failure to
take and pay for the number of shares of Common Stock specified in the
notice of exercise on the date stated therein, the Option shall become
inoperative as to such number of shares, but shall continue with respect to
any remaining shares of Common Stock subject to the Option as to which
exercise has not yet been made. Delivery of the shares of Common Stock may
be made at the office of the Company or at the office of a transfer agent
appointed for the transfer of shares of Common Stock.
6. In addition to and in furtherance of the provisions of the Plan, the
following terms and conditions shall apply to the exercise of the Option:
a) The Option shall not be transferable otherwise than (i) by will or by
the laws of descent and distribution; (ii) in satisfaction, in whole
or part, of a Purchaser Call (any transfer described in (i) or (ii)
shall be referred to as an "Allowable Transfer") or (iii) as otherwise
permitted, in whole or part, by the advance written consent, not to be
unreasonably withheld, of the Board, or by a Committee appointed by
the Board, if any, at the time of any proposed transfer other than an
Allowable Transfer. The Option shall not be subject, in whole or in
part, to attachment, execution or levy of any kind.
b) The Option shall expire and all rights thereunder shall end upon
expiration of all of the Purchasers' Calls .
c) If the Optionee dies within a period during which the Option could
have been exercised or transferred by him, the Option may, subject to
the provisions of Section 9, be exercised or transferred after his
death -by those entitled under his will or the laws of descent and
distribution, but only if and to the extent the Option was exercisable
or transferable by him immediately prior to his death.
7. The Optionee shall abide by all the terms and conditions of the Plan.
8. Neither the Optionee nor his legal representative shall be, nor have any of
the rights or privileges of, a shareholder of the Company in respect of any
of the shares of Common Stock issuable upon the exercise of this Option,
unless and until certificates representing such shares shall have been
issued and delivered to the Optionee (or his legal representative).
9. Except (i) in the case of an Allowable Transfer or (ii) as otherwise
permitted by the advance written consent, not to be unreasonably withheld,
of the Board, or by a Committee appointed by the Board, if any, at the time
of any proposed transfer, in whole or part, other than an Allowable
Transfer, the Option may not be transferred in any manner and may be
exercised during the lifetime of the Optionee only by him. The terms of
this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
10. All payments to an Optionee, or to his or her legal representative, shall
be subject to any applicable tax, community property, or other statutes or
regulations of the United States or of any state having jurisdiction
thereof. The Optionee may be required to pay to the Company the amount of
any withholding taxes which the Company is required to withhold with
respect to an Option or its exercise. In the event that such payment is not
made when due, the Company shall have the right to deduct, to the extent
permitted by law, from any payment of any kind otherwise due to such person
all or part of the amount required to be withheld.
Dated as of January 21, 2005 INFOCROSSING, INC.
ATTEST:
/s/ NICHOLAS J. LETIZIA By: /s/ ROBERT B. WALLACH
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Nicholas J. Letizia Robert B. Wallach
SVP, Secretary & General Counsel Vice-Chairman, President &
Chief Operating Officer
The Optionee hereby acknowledges receipt of a copy of the Plan, and represents
that he is familiar with the terms and provisions thereof and the terms and
provisions of this Option Agreement dated January 21, 2005 for 750,000 shares of
the Company's Common Stock, and the Optionee hereby accepts the Option subject
to all the terms and provisions thereof and herein. The Optionee hereby agrees
to accept as binding, conclusive and final all decisions or interpretations of
the Board or the Committee appointed by the Board, if any, upon any questions
arising under the Plan. The Optionee hereby authorizes the Company to withhold,
in accordance with applicable law, from any compensation payable to him, any
taxes required to be withheld by federal, state or local law as a result of the
exercise of any part of the Option.
Dated as of January 21, 2005 /s/ ZACH LONSTEIN
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Zach Lonstein