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NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as
of the 2nd day of December, 1999, by and between FLIGHTSERV.COM, a Delaware
corporation (the "Company") and ________________, an individual resident of the
State of Georgia ("Optionee").
W I T N E S S E T H:
1. The Company hereby grants to Optionee as of the date hereof
stock options to purchase ______________________________ shares of the common
stock, $.04 par value, of the Company (the "Common Stock") exercisable at any
time prior to 11:59 p.m., Atlanta time, on December 2, 2009 (the "Expiration
Date") at a price of $4.00 per Option Share. "Option Share(s)" shall mean the
share(s) of Common Stock which shall be purchased or shall be available for
purchase upon exercise of the stock option granted hereby and any security which
shall be issued in lieu of or in addition to any other Option Share by reason of
any recapitalization, special dividend transaction or other such event as
provided in Section 5 below.
2. Except as otherwise provided below, the option granted hereby
may be exercised at any time, or from time to time, in whole or in part, until
the Expiration Date. The exercise of all or any portion of the stock option
granted hereby will be contingent upon stockholder approval of the Agreement and
upon receipt by the Company of the advice of counsel to the Company that such
Option Shares have been duly listed on the principal exchange on which the
Company's securities are traded, and duly registered or are exempt from
registration under the applicable securities laws and, in the absence of
registration of the Option Shares and to the extent required by such counsel,
the receipt from the Optionee of a representation that the Optionee intends at
the time of such exercise to acquire the Option Shares for investment only and
not for distribution or resale.
3. The Optionee may exercise all or any part of the stock option
(in whole Option Shares) by delivering written notice to the Company of the
number of Option Shares to be purchased together with cash or check, in payment
of the full purchase price of the Option Shares to be acquired. Notice shall be
sent to the Company at flightserv.com, 3343 Peachtree Road, N.E., Suite 530,
Atlanta, Georgia 30326. The stock option shall be deemed to have been exercised
on the date the Company receives the written notice and the required cash or
check in full payment for the purchased Option Shares, or shares of Common Stock
if the payment is to be made in such manner. A form of notice which will be
deemed satisfactory by the Company is attached to this Agreement as Exhibit A.
Upon any exercise of the stock option the Company shall cause to be delivered to
the Optionee a certificate or certificates registered in the name or the
Optionee for the number of Option Shares purchased. The Optionee shall not have
any of the rights of a Stockholder with respect to the Option Shares except to
the extent that the Optionee duly exercises the stock option granted hereby with
respect to such Option Shares. As a condition of exercise of this option, the
Company may, in its sole discretion, withhold or require
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the Optionee to pay or reimburse the Company for any taxes which the Company
determines are required to be withheld in connection with the grant or any
exercise of this option.
4. Notwithstanding the foregoing provisions requiring payment by
cash or check, if stock of the class then subject to this option is then
"publicly traded" (as hereafter defined), then payment of the purchase price or
any portion thereof may also be made in whole or in part with shares of the same
class of stock as that then subject to this option, surrendered in lieu of the
payment of cash concurrently with such exercise, the shares so surrendered to be
valued on the basis of the Fair Market Value of the stock (as hereinafter
provided) on the date of exercise, in which event the stock certificates
evidencing the shares so to be used shall accompany the notice of exercise and
shall be duly endorsed or accompanied by duly executed stock powers to transfer
the same to the Company; provided, however, that such payment in stock instead
of cash shall not be effected and shall be rejected by the Company if (a) the
Company is then prohibited from purchasing or acquiring shares of the class of
its stock thus tendered to it or (b) the right or power of the person exercising
the option to deliver such shares in payment of the purchase price is subject to
the prior interest of any person (other than the Company) as indicated by
legends upon the certificate(s) or known to the Company. If the Company rejects
the payment in stock, the tendered notice of exercise shall not be effected
hereunder unless promptly after being notified of such rejection the person
exercising the option pays the purchase price in acceptable form. If and while
payment with stock is permitted in accordance with the foregoing provision, then
the person then entitled to exercise this option may, in lieu of using
previously outstanding stock therefor, use a portion of the shares as to which
this option is then being exercised, in which case the notice of exercise need
not be accompanied by any stock certificates but shall include a statement
directing the Company to retain so many shares that would otherwise have been
delivered by the Company upon that exercise of this option as equals the number
of shares that would have been surrendered to the Company if the purchase price
had been paid with previously issued stock. If the Company is required to
withhold on account of any federal, state or local tax imposed as a result of
any exercise of this option with previously issued stock or by retention of a
portion of Option Shares under this section, then the stock surrendered or
retained shall include an additional number of shares whose Fair Market Value
equals the amount thus required to be withheld. For purposes hereof, "publicly
traded" shall mean that a class of the capital stock of the Company is listed or
admitted to unlisted trading privileges on a national securities exchange or
designated as a national market systems security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. ("NASD") or if
sales or bid and offer quotations are reported for that class of stock in the
automated quotation system ("NASDAQ") operated by the NASD. Further, "Fair
Market Value" shall mean the closing price of such stock as of the day in
question or, if such day is not a trading day in the principal securities market
or markets for such stock, on the nearest preceding trading day, as reported
with respect to the market (or the composite of markets, if more than one) in
which shares of such stock are then traded, or, if no such closing prices are
reported, on the basis of the mean between the high bid and low asked prices
that day on the principal market or quotation system on which shares of such
stock are then quoted, or, if not so quoted, as furnished by a professional
securities dealer making a market in such stock selected by the Board of
Directors of the Company.
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5. In the event of changes in the outstanding shares of Common
Stock by reason of stock dividends, stock splits, subdivisions or combinations
of shares, the number of Option Shares shall be correspondingly and fairly
adjusted by the Board of Directors of the Company, the decision of which shall
be final and conclusive. A corresponding adjustment shall be made without change
in the total exercise price applicable to the unexercised portion of the Option
Shares with a corresponding adjustment in the exercise price per share.
6. If the Company is merged, consolidated or effects a share
exchange with another corporation (whether or not the Company is the surviving
corporation), or if substantially all of the assets or all of the Common Stock
is acquired by another corporation, or in the event of a separation,
reorganization or liquidation of the Company, the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company hereunder, shall make appropriate provision for the protection of
the option granted hereby by the substitution on an equitable basis of
appropriate stock of the Company, or of the merged, consolidated or otherwise
reorganized corporation which will be issuable in respect to the shares of
Common Stock, provided only that the excess of the aggregate fair market value
of the Option Shares immediately after such substitution over the exercise price
thereof is not more than the excess of the aggregate fair market value of the
Option Shares immediately before such substitution over the exercise price
thereof. Notwithstanding the preceding sentence, if the Company is merged,
consolidated or effects a share exchange with another corporation or if
substantially all of the assets or all of the Common Stock is acquired by
another corporation, or in the event of a separation, reorganization or
liquidation of the Company, then the Board of Directors of the Company or the
board of directors of any corporation assuming the obligations of the Company
hereunder may, on or before the thirtieth (30th) day following such event and
upon written notice to the Optionee, provide that the option granted hereby must
be exercised within sixty (60) days of the date of such notice or it will be
terminated.
7. This Agreement shall not be assignable or transferable by
Optionee otherwise than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and the stock option hereby
granted shall not be exercised by any person other than Optionee during
Optionee's lifetime. After the death of Optionee, the person to whom Optionee's
rights hereunder pass under Optionee's will or under the laws of descent and
distribution shall be deemed the holder of the stock option granted hereby.
8. To the extent not superseded by federal law, the laws of
Delaware shall control in all matters relating to this Agreement.
9. Optionee understands that the Option Shares are not registered
under the Securities Act of 1933 (the "1933 Act") or any state securities act
and will be issued to Optionee pursuant to exemptions from registration
thereunder. Optionee also understands that applicable securities laws may
restrict the right of Optionee to exercise the stock option or to dispose of any
shares which Optionee may acquire upon any such exercise and may govern the
manner in which such shares must be sold. Optionee shall not offer, sell or
otherwise dispose of any of the Option Shares acquired by reason of the exercise
of the stock option in any manner which would violate the 1933 Act or any other
state or federal law or cause the Company to have to make any filing or take any
action to avoid such a violation.
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10. Optionee hereby represents that all Option Shares purchased by
him pursuant to his exercise of all or any portion of the stock option will be
acquired only for investment and not with a view to distribution or resale.
11. All pronouns, defined nouns and any variations thereof in this
Agreement shall be deemed to refer to the masculine, feminine or neuter gender
and to either singular or plural, whenever the context of this Agreement so
requires.
IN WITNESS WHEREOF, Optionee has executed and delivered this Agreement
and the Company has caused this Agreement to be executed and delivered on its
behalf by its duly authorized representative, as of the day and year above
written.
FLIGHTSERV.COM
By:
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Its:
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OPTIONEE
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EXHIBIT A
TO: flightserv.com
3343 Peachtree Road, N.E.
Suite 530
Atlanta, Georgia 30326
Pursuant to the Non-Qualified Stock Option Agreement (herein called the
"Agreement"), dated as of December 2, 1999, by and between flightserv.com (the
"Company") and me, I hereby give notice that I elect to exercise the stock
option granted under the Agreement with respect to ______ shares of the common
stock of the Company as of the date on which this notice is delivered to the
Company, and accordingly I hereby agree to purchase such shares at the price and
on the terms established under the Agreement. Full payment for such shares is
enclosed. Such payment consists of:
__________ Cash
__________ Check
__________ shares of the Company's common stock, _____ of which are
previously owned.
I hereby represent and warrant that I am purchasing such shares for
investment purposes only and not with a view to distribution or resale.
I hereby agree that the stock option granted under the Agreement shall
be deemed to have been exercised to the extent specified in this notice on the
exercise date below my signature, and I hereby warrant that on such date this
notice was delivered to the Company.
Sincerely,
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(Sign Name)
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(Print Name)
DATED:
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