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EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 15th day of February, 2000 by and between Corniche
Group Incorporated, a Delaware corporation having offices at 610 S. Industrial
Blvd., Suite 220, Euless, Texas 76040 (the "Company"), and Robert F. Benoit (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
[February 15th, 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
Chief Executive 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 610
S. Industrial Blvd., Suite 220, Euless, Texas 76040.
(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.
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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 $100,000.00 less
required tax withholding amounts. The executive will
also receive a 6,000.00 automobile allowance per
year. 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 175,000 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.
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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
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Executive's employment hereunder as at the end of any
calendar month 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
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information by others. All records, memoranda,
letters, books, 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 Trial 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;
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(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.
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(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.
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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:
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To the Company
Corniche Group Incorporated
610 S. Industrial Blvd.,
Suite 220
Euless, Texas 76040
Fax: (817) 283 4365
with a copy to:
Haynes and Boone, LLP
901 Main St., Suite 3100
Dallas, Texas 75202
To the Executive
Mr. Robert F. Benoit, residing at 728 Saxon Trail Southlake
Texas 76092.
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/ JAMES FYFE
------------------------
James Fyfe
Chairman Of The Board
EXECUTIVE
/s/ ROBERT F. BENOIT
------------------------
Robert F. Benoit
Chief Executive Officer
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EXHIBIT A
CORNICHE GROUP INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of February 15th, 2000, by and between Corniche
Group Incorporated, a Delaware corporation with its principal place of business
at 610 S. Industrial Blvd., Suite 220, Euless, Texas 76040 (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 75,000 shares of the Company's Common Stock
(the "Shares") at the exercise prices $1.097 and 100,000 shares of the Company's
Common Stock (the "Shares") at the exercise prices $1.00 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
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number of Shares being purchased, or (ii) certificate(s), duly endorsed for
transfer to the 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
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Option and the delivery of a certificate for the Shares, until one of the
following conditions shall be satisfied:
(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
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which the Option or portion thereof then unexercised shall be exercisable. Such
adjustment in 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.
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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/ JAMES FYFE
-----------------------------
Title: Chairman of the Board
/s/ ROBERT F. BENOIT
--------------------------------
OPTIONEE
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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
- ---------------- ------------ ------------
37,500 $1.097 2/01/00
18,750 $1.097 6/26/01
18,750 $1.097 6/26/02
50,000 $1.00 2/01/01
25,000 $1.00 2/01/02
25,000 $1.00 2/01/03
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EXHIBIT B
TO STOCK OPTION AGREEMENT
Date:
-----------------------
Corniche Group Incorporated
610 S. Industrial
Suite 220
Euless, Texas 76040
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 February
15th, 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.
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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:
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