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EXHIBIT 2.3
OPTION AGREEMENT
THE TRANSFER OF THE OPTION GRANTED
BY THIS AGREEMENT IS SUBJECT TO RESALE RESTRICTIONS.
This OPTION AGREEMENT, dated as of May 16, 1999 (this
"Agreement"), is entered into between Edify Corporation, a Delaware corporation
("Issuer"), and Security First Technologies Corporation, a Delaware corporation
("Grantee").
WITNESSETH:
WHEREAS, Grantee, Sahara Strategy Corporation, a Delaware
corporation, and Issuer have entered into an Agreement and Plan of Merger, dated
as of May 16, 1999 (the "Plan"), which was executed by the parties thereto prior
to the execution of this Agreement; and
WHEREAS, as a condition and inducement to Grantee's entering into
the Plan and in consideration therefor, Issuer has agreed to grant Grantee the
Option (as defined below).
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Plan, the parties hereto
agree as follows:
SECTION 1. Issuer hereby grants to Grantee an irrevocable option
(the "Option") to purchase, subject to the terms hereof, up to a number of fully
paid and nonassessable shares of common stock, par value $.001 per share of
Issuer ("Issuer Common Stock") equal to 19.9% of the total of the number of
outstanding shares of Issuer Common Stock as of the first date that the Option
becomes exercisable, at a price per share equal to $17.87 (the "Option Price").
SECTION 2. (a) Grantee may exercise the Option, in whole or part,
at any time and from time to time following the occurrence of a Purchase Event
(as defined below); provided, however, that the Option shall terminate and be of
no further force and effect upon the earliest to occur of the following events
(which are collectively referred to as an "Exercise Termination Event"):
(i) The time immediately prior to the Effective Time;
(ii) 12 months after the first occurrence of a Purchase Event;
(iii) 12 months after the termination of the Plan following the
occurrence of a Preliminary Purchase Event (as defined below);
(iv) upon the termination of the Plan, if no Purchase Event or
Preliminary Purchase Event has occurred prior to such termination, by
Issuer pursuant to Sections 8.1(e), (f) or (h) of the Plan, both parties
pursuant to Section 8.1(a) of the Plan, or by either party pursuant to
Section 8.1(b) or (c) of the Plan;
(v) upon termination of the Plan, by either party pursuant to
Section 8.1(d) of the Plan based on (A) the required vote of Grantee's
stockholders not being obtained for any reason at the S1 Special Meeting
or (B) the required vote of Issuer's stockholders not being received at
the Edify Special Meeting, if no Purchase Event or Preliminary Purchase
Event has occurred prior to the meeting of Issuer's stockholders (or any
adjournment or postponement thereof) held to vote on the Plan; or
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(vi) 12 months after the termination of the Plan, by Grantee
pursuant to Section 8.1(e) or (f) thereof as a result of a breach by
Issuer, by Grantee pursuant to Section 8.1(g) of the Plan, or by Issuer
pursuant to Section 8.1(i) of the Plan.
(b) The term "Preliminary Purchase Event" shall mean any of the
following events or transactions occurring on or after the date hereof and prior
to an Exercise Termination Event:
(i) Issuer without having received Grantee's prior written
consent, shall have entered into any letter of intent or definitive
agreement to engage in an Acquisition Transaction (as defined below) with
any person (as defined below) other than Grantee or any of its
subsidiaries (each a "Grantee Subsidiary") or the Board of Directors of
Issuer shall have recommended that the stockholders of Issuer approve or
accept any Acquisition Transaction with any Person (as the term "person"
is defined in Section 3(a)9 and 13(d)(3) of the Exchange Act and the
rules and regulations thereunder) other than Grantee or any Grantee
Subsidiary. For purposes of this Agreement "Acquisition Transaction"
shall mean (x) a merger, consolidation or other business combination
involving Issuer, (y) a purchase, lease or other acquisition of all or
substantially all of the assets of Issuer, (z) a purchase or other
acquisition (including by way of merger, consolidation, share exchange or
otherwise) of Beneficial Ownership (as the term "beneficial ownership" is
defined in Regulation 13d-3(a) of the Exchange Act) of securities
representing 20% or more of the voting power of Issuer; provided,
however, that "Acquisition Transaction" shall not include a transaction
entered into after the termination of the Plan in which the Issuer is the
surviving entity, if in connection with such transaction, no person
acquires Beneficial Ownership of 20% or more of the total voting power of
the Issuer to be outstanding after giving effect to such transaction and
in which the aggregate voting power of Issuer acquired by all persons is
less than 33% of the total voting power of Issuer;
(ii) Any Person (other than Grantee, any Grantee Subsidiary or
any current affiliate of Issuer) shall have acquired Beneficial Ownership
of 20% or more of the outstanding shares of Issuer Common Stock;
(iii) (a) Any Person (other than Grantee or any Grantee
Subsidiary) shall have made a bona fide proposal to Issuer or, by a
public announcement or written communication that is or becomes the
subject of public disclosure, to Issuer's stockholders prior to the Edify
Special Meeting to engage in an Acquisition Transaction (including,
without limitation, any situation in which any Person other than Grantee
or any Grantee Subsidiary shall have commenced (as such term is defined
in Rule 14d-2 under the Exchange Act of 1934, as amended (the "Exchange
Act"), or shall have filled a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to a tender
offer or exchange offer to purchase any shares of Issuer Common Stock
such that, upon consummation of such offer, such person would have
Beneficial Ownership of 20% or more of the then outstanding shares of
Issuer Common Stock (such an offer being referred to herein as a "Tender
Offer" or an "Exchange Offer", respectively) and (b) the stockholders of
Issuer do not approve the Merger, as defined in the Plan, at the Edify
Special Meeting, as defined in the Plan;
(iv) There shall exist a willful or intentional breach under the
Plan by Issuer and such breach would entitle Grantee to terminate the
Plan; or
(v) The special meeting of Issuers' stockholders held for the
purpose of voting on the Plan shall not have been held pursuant to the
Plan or shall have been canceled prior to
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termination of the Plan, or for any reason whatsoever Issuer's Board of
Directors shall have failed to recommend, or shall have withdrawn or
modified in a manner adverse to Grantee the recommendation of Issuer's
Board of Directors, that Issuer's stockholders approve the Plan, or if
Issuer or Issuer's Board of Directors fails to oppose any proposal of the
type described at Section 2(b)(iii)(a) above by any Person (other than
Grantee or any Grantee Subsidiary).
(c) The term "Purchase Event" shall mean any of the following
events or transactions occurring on or after the date hereof and prior to an
Exercise Termination Event:
(i) The acquisition by any Person (other than Grantee or any
Grantee Subsidiary) of Beneficial Ownership (other than on behalf of the
Issuer) of 20% or more of the then outstanding Issuer Common Stock;
(ii) The occurrence of a Preliminary Purchase Event described in
Section 2(b)(i); or
(iii) The termination of the Plan by Grantee pursuant to Section
8.1(e) or (f) thereof as a result of a willful or intentional breach by
Issuer, by Grantee pursuant to Section 8.1(g) of the Plan, or by Issuer
pursuant to Section 8.1(i) of the Plan.
(d) Issuer shall notify Grantee promptly in writing of the
occurrence of any Preliminary Purchase Event or Purchase Event known to Issuer;
provided, however, that the giving of such notice by Issuer shall not be a
condition to the right of Grantee to exercise the Option.
(e) In the event that Grantee is entitled to and wishes to
exercise the Option, it shall send to Issuer a written notice (the "Option
Notice," the date of which being hereinafter referred to as the "Notice Date")
specifying (i) the total number of shares of Issuer Common Stock it will
purchase pursuant to such exercise and (ii) the time (which shall be on a
business day that is not less than three nor more than 10 business days from the
Notice Date) on which the closing of such purchase shall take place (the
"Closing Date"); such closing to take place at the principal office of the
Issuer; provided, however, that, if prior notification to or approval of the
Federal Trade Commission (the "FTC"), the Antitrust Division of the Department
of Justice ("DOJ") or any other Governmental Authority is required in connection
with such purchase (each, a "Notification" or an "Approval," as the case may
be), at Grantee's sole expense, (a) Grantee shall promptly file the required
notice or application for approval ("Notice/Application"), (b) Grantee shall
expeditiously process the Notice/Application and (c) for the purpose of
determining the Closing Date pursuant to clause (ii) of this sentence, the
period of time that otherwise would run from the Notice Date shall instead run
from the later of (x) in connection with any Notification, the date on which any
required notification periods have expired or been terminated and (y) in
connection with any Approval, the date on which such approval has been obtained
and any requisite waiting period or periods shall have expired. For purposes of
Section 2(a) hereof, any exercise of the Option shall be deemed to occur on the
Notice Date relating thereto. On or prior to the Closing Date, Grantee shall
have the right to revoke its exercise of the Option by written notice to the
Issuer given not less than three business days prior to the Closing Date.
(f) At the closing referred to in Section 2(e) hereof, Grantee
shall pay to Issuer the aggregate purchase price for the number of shares of
Issuer Common Stock specified in the Option Notice in immediately available
funds by wire transfer to a bank account designated by Issuer; provided,
however, that failure or refusal of Issuer to designate such a bank account
shall not preclude Grantee from exercising the Option.
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(g) At such closing, simultaneously with the delivery of
immediately available funds as provided in Section 2(f) hereof, Issuer shall
deliver to Grantee a certificate or certificates representing the number of
shares of Issuer Common Stock specified in the Option Notice and, if the Option
should be exercised in part only, a new Option evidencing the rights of Grantee
thereof to purchase the balance of the shares of Issuer Common Stock purchasable
hereunder.
(h) Certificates for Issuer Common Stock delivered at a closing
hereunder shall be endorsed with a restrictive legend substantially as follows:
The transfer of the shares represented by this certificate
is subject to resale restrictions arising under the Securities Act
of 1933, as amended, and applicable state securities laws and to
certain provisions of an agreement between Edify Corporation and
Security First Technologies Corporation dated as of May 16, 1999. A
copy of such agreement is on file at the principal office of Edify,
and will be provided to the holder hereof without charge upon
receipt by Edify of a written request therefor.
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have delivered
to Issuer a copy of a letter from the staff of the Securities and Exchange
Commission (the "SEC") or Governmental Authority responsible for administering
any applicable state securities laws or an opinion of counsel, in form and
substance satisfactory to Issuer's counsel, to the effect that such legend is
not required for purposes of the Securities Act or applicable state securities
laws; (ii) the reference to the provisions of this Agreement in the above legend
shall be removed by delivery of substitute certificate(s) without such reference
if the shares have been sold or transferred in compliance with the provisions of
this Agreement and under circumstances that do not require the retention of such
reference; and (iii) the legend shall be removed in its entirety if the
conditions in the preceding clauses (i) and (ii) are both satisfied. In addition
such certificates shall bear any other legend as may be required by law.
(i) Upon the giving by Grantee to Issuer of an Option Notice
and the tender of the applicable purchase price in immediately available funds
on the Closing Date, unless prohibited by applicable law, Grantee shall be
deemed to be the holder of record of the number of shares of Issuer Common Stock
specified in the Option Notice, notwithstanding that the stock transfer books of
Issuer shall then be closed or that certificates representing such shares of
Issuer Common Stock shall not then actually be delivered to Grantee. Issuer
shall pay all expenses and other charges that may be payable in connection with
the preparation, issuance and delivery of stock certificates under this Section
2 in the name of Grantee.
(j) Promptly following any sale or other disposition of Issuer
Common Stock acquired pursuant to the Option, or the Option or any portion
thereof, Grantee shall promptly remit in cash to Issuer, the amount, if any, by
which (x) the sum of (A) the amount of the "breakup fee" received by Grantee
pursuant to Section 9.3 of the Plan plus (B) all proceeds received by Grantee in
connection with any and all sales or other dispositions of (1) Issuer Common
Stock acquired pursuant to the Option, and (2) the Option or any portion
thereof, plus (C) any dividends received by Grantee declared on Issuer Common
Stock acquired pursuant to the Option, exceeds (y) the sum of (X) $18.2 million
plus (Y) the Option Price multiplied by the number of shares of Issuer Common
Stock purchased by Grantee pursuant to the Option.
SECTION 3. Issuer agrees: (i) that it shall at all times until the
termination of this Agreement have reserved for issuance upon the exercise of
the Option that number of authorized and
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reserved shares of Issuer Common Stock equal to the maximum number of shares of
Issuer Common Stock at any time and from time to time issuable hereunder, all of
which shares will, upon issuance pursuant hereto, be duly authorized, validly
issued, fully paid, non-assessable, and delivered free and clear of all claims,
liens, encumbrances and security interests and not subject to any preemptive
rights; (ii) that it will not, by amendment of its certificate of incorporation
or through reorganization, consolidation, merger, dissolution or sale of assets,
or by any other voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to be observed
or performed hereunder by Issuer; (iii) promptly to take all reasonable action
as may from time to time be requested by Grantee, at Grantee's expense
(including (x) complying with all premerger notification, reporting and waiting
period requirements specified in 15 U.S.C. Section 18a and regulations
promulgated thereunder and (y) in the event prior approval of or notice to the
FTC, DOJ or any other Governmental Authority, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, or any other applicable federal
or state law, is necessary before the Option may be exercised), cooperating with
Grantee in preparing such applications or notices and providing such information
to each such Governmental Authority as it may require in order to permit Grantee
to exercise the Option and Issuer duly and effectively to issue shares of Issuer
Common Stock pursuant hereto; and (iv) to take all action provided herein to
protect the rights of Grantee against dilution.
SECTION 4. This Agreement (and the Option granted hereby) are
exchangeable, without expense, at the option of Grantee, upon presentation and
surrender of this Agreement at the principal office of Issuer, for other
agreements providing for Options of different denominations entitling the holder
thereof to purchase, on the same terms and subject to the same conditions as are
set forth herein, in the aggregate the same number of shares of Issuer Common
Stock purchasable hereunder. The terms "Agreement" and "Option" as used herein
include any agreements and related options for which this Agreement (and the
Option granted hereby) may be exchanged. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date.
SECTION 5. The number of shares of Issuer Common Stock purchasable
upon the exercise of the Option shall be subject to adjustment from time to time
as follows:
(a) In the event of any change in the type or number of shares
of Issuer Common Stock by reason of stock dividends, split-ups, mergers,
recapitalizations, combinations, subdivisions, conversions, exchanges of shares
or other issuances of additional shares (other than pursuant to the exercise of
the Option), the type and number of shares of Issuer Common Stock purchasable
upon exercise hereof shall be appropriately adjusted and proper provision shall
be made so that, in the event that any additional shares of Issuer Common Stock
are to be issued or otherwise become outstanding as a result of any such change
(other than pursuant to an exercise of the Option), the number of shares of
Issuer Common Stock that remain subject to the Option shall be increased or
decreased (as applicable) so that, after such issuance and together with the
shares of Issuer Common Stock previously issued pursuant to the prior partial
exercise of the Option (as adjusted on account of any of the foregoing changes
in the Issuer Common Stock), such number of shares shall equal the sum of 19.9%
of the total of the number of shares of Issuer Common Stock issued and
outstanding on the date the Option first becomes exercisable.
(b) Whenever the number of shares of Issuer Common Stock
purchasable upon exercise hereof is adjusted as provided in this Section 5, the
Option Price shall be adjusted by multiplying the Option Price by a fraction,
the numerator of which shall be equal to the number of shares of Issuer Common
Stock purchasable prior to the adjustment and the denominator of which shall be
equal to the number of shares of Issuer Common Stock purchasable after the
adjustment.
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SECTION 6. (a) Upon the occurrence of a Purchase Event that occurs
prior to an Exercise Termination Event, Issuer shall, at the request of Grantee
(whether on its own behalf or on behalf of any subsequent holder of the Option
(or part thereof) or of any of the shares of Issuer Common Stock issued pursuant
hereto), promptly prepare, file and keep current a shelf registration statement
with the SEC, under the Securities Act covering any shares issued and issuable
pursuant to the Option and shall use its reasonable best efforts to cause such
registration statement to become effective, and to remain current and effective
for a period not in excess of 90 days from the day such registration statement
first becomes effective, in order to permit the sale or other disposition of any
shares of Issuer Common Stock issued upon total or partial exercise of the
Option ("Option Shares") in accordance with any plan of disposition requested by
Grantee. Grantee shall have the right to demand two such registrations, which
demand right shall be transferable but in no event shall Issuer be required to
effect more than two registrations in the aggregate pursuant to this Option or
any subdivision hereof. Grantee shall provide all information reasonably
requested by Issuer for inclusion in any registration statement to be filed
hereunder. In connection with any such registration statement, Issuer and
Grantee shall provide each other with representations, warranties, indemnities
and other agreements customarily given in connection with such registration. If
requested by Grantee in connection with such registration, Issuer and Grantee
shall become a party to any underwriting agreement relating to the sale of such
shares, but only to the extent of obligating themselves in respect of
representations, warranties, indemnities and other agreements customarily
included in such underwriting agreements and reasonably acceptable to Issuer.
Notwithstanding the foregoing, if Grantee revokes any exercise notice or fails
to exercise any Option with respect to any exercise notice pursuant to Section
2(e) hereof, Issuer shall not be obligated to continue any registration process
with respect to the sale of Option Shares issuable upon the exercise of such
Option and Grantee shall not be deemed to have demanded registration of Option
Shares. If Issuer withdraws a registration statement which has been declared
effective at the request of Grantee, or any subsequent holder, then such filing
shall be deemed an effective registration for all purposes hereunder. The Issuer
will not be required to file any such registration statement during any period
of time (not to exceed 30 days in the case of clauses (A) or (C) below or 45
days in the case of clause (B) below) when (A) the Issuer is in possession of
material non-public information which it reasonably believes would be
detrimental to be disclosed at such time and such information would have to be
disclosed if a registration statement were filed at that time; (B) the Issuer is
required under the Securities Act and the rules and regulations thereunder to
include audited financial statements for any period in such registration
statement and such financial statements are not yet available for inclusion in
such registration statement; or (C) the Issuer reasonably determines that such
registration would interfere with any financing, acquisition or material
transaction involving the Issuer. The registration rights set forth in this
Section 6 are subject to the condition that the Grantee or subsequent holder
shall provide the Issuer with such information with respect to the holder's
securities, the plan for distribution thereof, and such other information with
respect to the holder that is required under applicable securities laws to
enable the Issuer to include in a registration statement all material facts
required to be disclosed with respect to a registration thereunder, including
the identity of the holder and the holder's plan of distribution. The Grantee
shall not be able to exercise its registration rights hereunder if Grantee can
rely on Rule 144 promulgated under the Securities Act to sell such number of
shares of Issuer Common Stock that the Grantee otherwise would seek to register.
(b) Concurrently with the preparation and filing of a
registration statement under Section 6(a) hereof, Issuer shall also make all
filings required to comply with state securities laws in such number of states
as Grantee may reasonably request; provided, that Issuer shall not be required
to qualify to do business in, or consent to service of process in, any
jurisdiction by reason of this provision.
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SECTION 7. Notwithstanding Sections 2 and 6 hereof, if Grantee has
given the notice referred to in one or more of such Sections, the exercise of
the rights specified in any such Section shall be extended (a) if the exercise
of such rights requires obtaining regulatory approvals (including any required
waiting periods) to the extent necessary to obtain all regulatory approvals for
the exercise of such rights, and (b) to the extent necessary to avoid liability
under Section 16(b) of the Exchange Act by reason of such exercise; provided,
that in no event shall any closing date occur more than 12 months after the
related notice date, and, if the closing date shall not have occurred within
such period due to the failure to obtain any required approval by the FTC, DOJ
or any other Governmental Authority despite the reasonable best efforts of
Grantee and Issuer to obtain such approvals, the exercise of the rights shall be
deemed to have been rescinded as of the related notice date. In the event (a)
Grantee receives official notice that an approval of the FTC, DOJ or any other
Governmental Authority required for the purchase and sale of the Option Shares
will not be issued or granted or (b) a closing date has not occurred within 12
months after the related notice date due to the failure to obtain any such
required approval, Grantee shall be entitled to exercise the Option in
connection with the concurrent resale of the Option Shares pursuant to a
registration statement as provided in Section 6 hereof.
SECTION 8. Issuer hereby represents and warrants to Grantee as
follows:
(a) Issuer has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly approved by
the Board of Directors of Issuer and no other corporate proceedings on the part
of Issuer are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement has been duly executed and
delivered by, and constitutes a valid and binding obligation of, Issuer,
enforceable against Issuer in accordance with its terms, subject to any required
Governmental Approval, and except as enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights generally and general
principles of equity.
(b) Issuer has taken all necessary corporate action to
authorize and reserve and to permit it to issue, and at all times from the date
hereof through the termination of this Agreement in accordance with its terms
will have reserved for issuance upon the exercise of the Option, that number of
shares of Issuer Common Stock equal to the maximum number of shares of Issuer
Common Stock at any time and from time to time issuable hereunder, and all such
shares, upon issuance pursuant hereto, will be duly authorized, validly issued,
fully paid, non-assessable, and will be delivered free and clear of all claims,
liens, encumbrances and security interests and not subject to any preemptive
rights.
SECTION 9. (a) Neither of the parties hereto may assign any of its
rights or delegate any of its obligations under this Agreement or the Option
created hereunder to any other Person without the express written consent of the
other party, except that Grantee may assign this Agreement to a wholly owned
subsidiary of Grantee and Grantee may assign its rights hereunder in whole or in
part after the occurrence of a Preliminary Purchase Event. The term "Grantee" as
used in this Agreement shall also be deemed to refer to Grantee's permitted
assigns.
(b) Any assignment of rights of Grantee to any permitted
assignee of Grantee hereunder shall bear the restrictive legend at the beginning
thereof substantially as follows:
The transfer of the option represented by this assignment and the
related option agreement is subject to resale restrictions arising under
the Securities Act of 1933, as amended, and applicable state securities
laws and to certain provisions of an agreement
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between Edify Corporation and Security First Technologies Corporation,
dated as of May 16, 1999. A copy of such agreement is on file at the
principal office of Edify Corporation, and will be provided to any
permitted assignee of the Option without charge upon receipt of a written
request therefor.
SECTION 10. Each of Grantee and Issuer will use its reasonable efforts
to make all filings with, and to obtain consents of, all third parties
including, if applicable, the FTC, DOJ and other Governmental Authorities
necessary to the consummation of the transactions contemplated by this
Agreement.
SECTION 11. The parties hereto acknowledge that damages would be an
inadequate remedy for a breach of this Agreement by either party hereto and that
the obligations of the parties hereto shall be enforceable by either party
hereto through injunctive or other equitable relief. Both parties further agree
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such equitable relief and that this provision is
without prejudice to any other rights that the parties hereto may have for any
failure to perform this Agreement.
SECTION 12. If any term, provision, covenant or restriction contained
in this Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions and covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected, impaired
or invalidated. If for any reason such court or regulatory agency determines
that Grantee is not permitted to acquire the full number of shares of Issuer
Common Stock provided in Section 1 hereof (as adjusted pursuant hereto), it is
the express intention of Issuer to allow Grantee to acquire or to require Issuer
to repurchase such lesser number of shares as may be permissible without any
amendment or modification hereof.
SECTION 13. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in the manner and at the respective addresses of the parties set forth in the
Plan.
SECTION 14. This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto shall be governed by and
construed in accordance with the laws of the State of Delaware (but not
including the choice of law rules thereof).
SECTION 15. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement and shall be effective at the time of execution and
delivery.
SECTION 16. Except as otherwise expressly provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by it or on
its behalf in connection with the transactions contemplated hereunder.
SECTION 17. Except as otherwise expressly provided herein or in the
Plan, this Agreement contains the entire agreement between the parties with
respect to the transactions contemplated hereunder and supersedes all prior
arrangements or understandings with respect thereof, written or oral. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
party, other than the parties hereto, and their respective successors except as
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
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SECTION 18. Capitalized terms used in this Agreement and not defined
herein but defined in the Plan shall have the meanings assigned therein.
SECTION 19. Nothing contained in this Agreement shall be deemed to
authorize or require Issuer or Grantee to breach any provision of the Plan or
any provision of law applicable to the Grantee or Issuer.
SECTION 20. In the event that any selection or determination is to be
made by Grantee or a subsequent holder hereunder and at the time of such
selection or determination there is more than one Grantee or holders, such
selection shall be made by a majority in interest of such Grantees or holders.
SECTION 21. In the event of any exercise of the option by Grantee,
Issuer and such Grantee shall execute and deliver all other documents and
instruments and take all other action that may be reasonably necessary in order
to consummate the transactions provided for by such exercise.
SECTION 22. Except to the extent Grantee exercises the Option, Grantee
shall have no rights to vote or receive dividends or have any other rights as a
shareholder with respect to shares of Issuer Common Stock covered hereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties has caused this Option Agreement
to be executed and delivered on its behalf by their respective officers
thereunto duly authorized, all as of the date first above written.
EDIFY CORPORATION
By: /s/ JEFFREY M. CROWE
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Jeffrey M. Crowe
President and Chief Executive Officer
SECURITY FIRST TECHNOLOGIES CORPORATIOXN
By: /s/ JAMES S. MAHAN III
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James S. Mahan III
Chairman and Chief Executive Officer