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EXHIBIT 10.9
[Date]
[Name]
[Address]
[Address]
Dear [Mr./Ms.] [LastName]:
On behalf of Billing Concepts Corp. ("Billing"), I am pleased to
announce that the Committee, operating under the Billing 1996 Employee
Comprehensive Stock Plan, as amended (the "Plan"), has awarded you (the
"Employee") a non-qualified stock option to purchase [Shares] shares of common
stock of Billing (the "Shares"). The option to acquire the Shares is awarded and
granted upon the following terms and conditions, as well as those terms,
conditions and limitations as set forth in the Plan, which is attached hereto
and incorporated herein for all purposes:
1. The exercise price for each share of common stock is $[Price].
2. For so long as you are employed by Billing, or any of its
subsidiaries, the right to exercise such option shall vest as follows:
[Vesting]
3. Subject to Paragraph 5 herein, the options which have vested in
accordance with the schedule set forth in Paragraph 2 above may be exercised at
any time on or before [ExpireDate]. No partial exercise of such options may be
for less than 100 full shares unless the remaining shares that have become
purchasable are less than 100 shares. In no event shall Billing be required to
transfer fractional shares to the Employee.
4. The option granted under this Agreement shall be exercisable from
time to time, as provided above, by the payment in cash or check to Billing of
the exercise price of the shares which the Employee elects to purchase. Billing
shall not be required to
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transfer or deliver any certificate or certificates for shares of Billing's
common shares purchased upon exercise of the option granted under this Agreement
until all then applicable requirements of law have been met.
5. Subject to the limitations imposed pursuant to Section 9 of the
Plan, the option and all rights granted by this Agreement, to the extent those
rights have not been exercised, will terminate and become null and void on
[ExpireDate]. If the Employee dies, the person or persons to whom his/her vested
rights under the option shall pass, whether by will or by the applicable laws of
descent and distribution, may exercise such vested option to the extent the
Employee was entitled to exercise the option on the date of death, at any time
within a period of one (1) year after his/her death, but not after [ExpireDate].
Notwithstanding the above, the Employee's rights to the non-vested and
vested options which have not been exercised, and all rights granted by this
Agreement, shall in all events terminate and become null and void if the
Employee is employed either as an employee or consultant by any company, joint
venture, partnership or individual which the Committee determines, in its sole
discretion, is in competition with Billing.
6. During the lifetime of the Employee, the option and all rights
granted in this Agreement shall be exercisable only by the Employee, and, except
as Paragraph 5 above otherwise provides, the option and all rights granted under
this Agreement shall not be transferred, assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise), and shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of such option or of such rights
contrary to the provisions of this Agreement, or upon the levy of any attachment
or similar process upon such option or such rights, such option and such rights
shall immediately become null and void.
7. Notwithstanding the foregoing, upon a Change of Control (as
defined in the Plan) all non-vested options shall immediately vest.
8. In the event of any change in the common shares of Billing
subject to the option granted hereunder, through merger, consolidation,
reorganization, recapitalization, stock split, stock dividend or other change in
the corporate structure, without consideration, appropriate adjustment shall be
made by Billing in the number or kind of shares subject to such option and the
price per share. Upon the dissolution or liquidation of Billing, the option
granted under this Agreement shall terminate and become null and void, but the
Employee shall have the right immediately prior to such dissolution or
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liquidation to exercise the option granted hereunder to the full extent not
before exercised.
9. Neither the Employee nor his/her executor, administrator, heirs
or legatees shall be or have any rights or privileges of a stockholder of
Billing in respect of the shares transferable upon exercise of the option
granted under this Agreement, unless and until certificates representing such
shares shall have been endorsed, transferred and delivered and the transferee
has caused his/her name to be entered as a stockholder of record on the books of
Billing. Nothing contained in the Plan or this Agreement shall confer upon the
Employee any right to continue in the employ of Billing or any of its
subsidiaries or interfere in any way with the right of Billing or its
subsidiaries (subject to the terms of any separate agreement to the contrary) to
terminate the Employee's employment or to increase or decrease the employee's
compensation at any time.
10. The Shares underlying your options have been registered with the
Securities and Exchange Commission, and the Shares issued upon the exercise of
your options will be freely tradable, subject, with respect to Shares held by
"affiliates" of Billing, to compliance with Rule 144 of the Securities and
Exchange Commission.
11. Billing does not attempt to advise you on tax or other
consequences arising from your acquisition of the Shares through the exercise of
the option. However, attached you will find a memorandum which explains the
characteristics of stock options and certain tax matters with reference to
non-qualified stock options. FOR SPECIFIC TAX CONSEQUENCES TO YOU, PLEASE
CONSULT WITH YOUR TAX ADVISOR.
12. The terms and conditions of the Plan, unless expressly
supplemented by this Agreement, shall continue unchanged and in full force and
effect. To the extent that any terms or provisions of this Agreement are or may
be deemed expressly inconsistent with any terms or conditions of the Plan, the
terms of the Plan shall control.
13. The Employee hereby agrees to take whatever additional actions
and execute whatever additional documents Billing may in its reasonable judgment
deem necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Employee pursuant to the express
provisions of this Agreement.
14. The rights of the Employee are subject to modification and
termination in certain events as provided in this Agreement and the Plan.
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15. This Agreement shall be governed by, and construed in accordance
with, the substantive laws of the State of Delaware applicable to contracts made
and to be wholly performed therein.
16. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
17. This Agreement and the Plan constitute the entire agreement
between the parties with respect to the subject matter hereof, and supersede all
previous written or oral negotiations, commitments, representations and
agreements with respect thereto.
If the foregoing represents your understanding of the terms and
conditions upon which your options have been granted, please execute in the
space provided below, returning an executed copy to the undersigned.
Sincerely, AGREED AND ACCEPTED:
Parris H. Holmes, Jr. -------------------------------
Chairman of the Board and [NAME]
Chief Executive Officer