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EXHIBIT 10.3
YOUCENTRIC, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT ("Agreement') is made
as of March 31, 2000 (the "Grant Date"), by and between YOUcentric, Inc., a
North Carolina corporation (the "Company"), and Donald A. DeLoach (the
"Optionee").
WHEREAS, the Optionee is a valuable and trusted employee of
the Company; and
WHEREAS, the Board has granted a nonqualified stock option to
the Optionee pursuant to the Plan to provide the Optionee with the opportunity
to acquire a proprietary interest in the Company as an incentive to advance the
interests of the Company; and
WHEREAS, this Agreement evidences the terms and conditions of
such nonqualified stock option.
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises set forth below and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Grant of Option. The Board granted the Optionee an option to
purchase from the Company, during the period specified in section 3 of this
Agreement, a total of Two Hundred Thousand (200,000) shares of the common stock
of the Company at the purchase price of Six Dollars ($6.00) per share (the
"Purchase Price"), in accordance with the terms and conditions stated in this
Agreement. The shares of Stock subject to the option granted hereby are referred
to below as the "Shares," and the option to purchase such Shares is referred to
below as the "Option."
2. Definitions; Authority of Committee.
(a) All capitalized terms used in this Agreement shall have
the meanings set out in the Plan unless otherwise specified in this Agreement.
(b) "Act" means the Securities Act of 1933, as amended.
(c) "Cause" means the commission of any act of fraud,
embezzlement or dishonesty by the Optionee against the Company or the surviving
entity following a Change in Control or Corporate Reorganization, any
unauthorized use or disclosure by the Optionee of confidential information or
trade secrets of the Company or the surviving entity following a Change in
Control or Corporate Reorganization, or any other intentional misconduct by
Optionee adversely affecting the business or affairs of the Company or the
surviving entity following a Change in Control or Corporate Reorganization in a
material manner, unless the Optionee cures such misconduct within ten (10) days
after notice from such entity. The foregoing definition shall not be deemed to
be inclusive of all the acts or omissions which such entity may consider as
grounds for the dismissal or discharge of the Optionee.
(d) A "Change in Control" shall be deemed to have occurred if,
after the Company has consummated a public offering of the Stock pursuant to the
Act:
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(i) any "Person" as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934 (the "Act"), including a "group" (as
that term is used in Rules 13(d)(3) and 14(d)(2) under the Act), but
excluding the Company and any employee benefit plan sponsored or
maintained by the Company, including any trustee of such plan acting as
trustee:
(A) consummates a tender or exchange offer for any
shares of the Stock pursuant to which at least fifty percent (50%) of
the outstanding shares of the Stock are purchased; or
(B) together with its "affiliates" and "associates"
(as those terms are defined in Rule 12b-2 under the Act) becomes the
"Beneficial Owner" (within the meaning of Rule 13d-3 under the Act) of
at least fifty percent (50%) of the Stock;
(ii) a merger or consolidation of the Company with or into
another corporation is consummated and the Company's shareholders
immediately prior to the transaction do not own at least fifty percent
(50%) of the surviving company's outstanding stock immediately
following the transaction, a sale or other disposition of all or
substantially all of the Company's assets, or the liquidation of the
Company; or
(iii) during any period of 24 consecutive months during the
existence of this Agreement, the individuals who, at the beginning of
such period, constitute the Board (the "Incumbent Directors") cease for
any reason other than death to constitute at least a majority thereof;
provided, however, that a director who was not a director at the
beginning of such 24 month period shall be deemed to have satisfied
such 24 month requirement, and be an Incumbent Director, if such
director was elected by, or on the recommendation of or with the
approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually, because they were directors at the
beginning of such 24 month period, or by prior operation of this
subparagraph (iii).
(e) A "Company Reorganization" means the happening of any one
of the following events prior to the time at which the Company has consummated a
public offering of the Stock pursuant to the Act: (i) the dissolution or
liquidation of the Company; (ii) a reorganization, merger, or consolidation
involving the Company unless (A) the transaction involves only the Company and
one or more of the Company's parent company and wholly-owned (excluding
interests held by employees, officers and directors) subsidiaries; or (B) the
shareholders who had the power to elect a majority of the Board of Directors of
the Company immediately prior to the transaction have the power to elect a
majority of the board of directors of the surviving entity immediately following
the transaction; (iii) the sale of all or substantially all of the assets of the
Company to another company, person or business entity; or (iv) an acquisition of
Company stock, unless the shareholders who had the power to elect a majority of
the Board of Directors of the Company immediately prior to the acquisition have
the power to elect a majority of the Board of Directors of directors of the
Company immediately following the transaction.
(f) An "Involuntary Termination" is any termination of
employment of the Optionee: (i) by the Optionee during the eighteen (18) month
period following a Change in Control or Corporate Reorganization (A) following
the assignment to the Optionee by the surviving entity following such Change in
Control or Corporate Reorganization of any duties that are significantly
incompatible with, and detract from, the Optionee's duties, responsibilities or
status with the Company immediately
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prior to the effective date of such Change in Control or Corporate
Reorganization, (B) following a significant reduction in the Optionee's annual
base salary and annual bonus in effect immediately prior to the effective date
of such Change in Control or Corporate Reorganization; or (C) following the
Company's assignment of the Optionee to a location other than his principal
location of employment immediately prior to the effective date of such Change in
Control or Corporate Reorganization (except for required travel on Company
business to an extent substantially consistent with the Optionee's business
travel obligations immediately prior to the effective date of such Change in
Control or Company Reorganization), or, in the event he consents to any such
relocation, the failure of the Company to pay (or reimburse the Optionee for all
reasonable moving expenses incurred by him relating to a change of his principal
residence in connection with such relocation), or (ii) by the surviving entity
during the eighteen (18) month period following the effective date of a Change
in Control or Corporate Reorganization for any reason other than for Cause.
(g) "Plan" means the YOUcentric, Inc. 1999 Equity Compensation
Plan, as it may be amended from time to time.
(h) All determinations made by the Committee with respect to
the interpretation, construction and application of any provision of this
agreement shall be final, conclusive and binding on all parties.
3. Vesting and Exercise of Option. The Option shall vest and become
exercisable in accordance with the following schedule, provided that the Option
shall vest and become exercisable with respect to an increment as specified only
if the Optionee has not incurred a Termination of Employment as of the specified
date for such increment (except as specified in subsection (c) below):
(a) if the Company consummates the sale of securities pursuant
to a bona fide, firmly underwritten public offering of shares of common stock
registered under the Act ( an "IPO") pursuant to which the initial per share
offering price of the Company's common stock exceeds two (2) times the initial
per share sales price of the Company's Series B preferred stock (as such price
may be adjusted pursuant to the terms of such Series B preferred stock), the
Option shall become vested and exercisable with respect to Seventy Thousand
(70,000) Shares on the date of the IPO;
(b) if an IPO occurs and if at the earlier of the expiration
date of the post-IPO lock-up period or the date of the completion of a secondary
offering of the Company's common stock (either of which shall be referred to the
"Acceleration Date") the closing per share price of the Company's common stock
on the exchange on which such common stock is traded or the per share offering
price of the Company's common stock in such secondary offering (as applicable)
exceeds three (3) times the initial per share sales price of the Company's
Series B preferred stock (as such price may be adjusted pursuant to the terms of
such Series B preferred stock), the Option shall become vested and exercisable
with respect to Seventy Thousand (70,000) Shares on the Acceleration Date;
(c) in the event of a Change of Control or Corporate
Reorganization pursuant to which the holders of the common stock of the Company
receive value in excess of two (2) times the initial per share sales price of
the Company's Series B preferred stock (as such price may be adjusted pursuant
to the terms of such Series B preferred stock), the Option shall become fully
vested and exercisable immediately prior to the effective date of such Change in
Control or Corporate Reorganization to the extent the Option is not already
fully vested and exercisable on such date; provided, however, that to the extent
that such acceleration of vesting and exercisability of the Option will result
in
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an "excess parachute payment" within the meaning of Code section 280G(b)(1) and
the regulations and interpretive guidance thereunder, then the portion of the
Option the acceleration of vesting and exercisability of which is deemed to be
contingent on a change (a) in ownership or effective control of the Company or
(b) in the ownership of a substantial portion of the assets of the Company
within the meaning of Code section 280G(b)(2) nevertheless shall not be
accelerated pursuant to this subsection (c) to the extent necessary to avoid the
imposition of the tax provided by Code section 4999, and such portion of the
Option shall instead become vested and exercisable in accordance with the other
provisions of this section 3 regardless of whether the Optionee incurs a
Termination of Employment on or after the effective date of such Corporate
Reorganization or Change in Control;
(d) the Option shall become fully vested and exercisable on
March 31, 2001, to the extent the Option is not already vested and exercisable;
(e) the Option shall become fully vested and exercisable, to
the extent the Option is not already fully vested and exercisable, on the date
of the Optionee's Termination of Employment as a result of death or disability,
which disability shall be determined by the Board of Directors in its
discretion.
The schedule set forth above is cumulative, so that Shares as to which
the Option has become vested and exercisable on and after a date indicated by
the schedule may be purchased pursuant to exercise of the Option at any
subsequent date prior to termination of the Option. The Option may be exercised
at any time and from time to time to purchase up to the number of Shares as to
which it is then vested and exercisable.
In the event of a Corporate Reorganization or Change in Control, the
surviving entity or an affiliate thereof shall assume the Option or replace the
Option with an option of equivalent value and with comparable terms.
4. Termination of Option. The Option shall remain exercisable as
specified in section 3 above until the earliest to occur of the dates specified
below, upon which date the Option shall terminate:
(a) the date all of the Shares are purchased pursuant to the
terms of this Agreement;
(b) except as provided in (f) below, upon the expiration of
three (3) months following the Termination of Employment of the Optionee for any
reason other than Cause, death or disability as determined by the Committee in
its discretion;
(c) except as provided in (f) below, immediately upon the
Termination of Employment of the Optionee by the Company for Cause;
(d) upon the expiration of one (1) year following the date of
the Optionee's Termination of Employment as a result of death or disability as
determined by the Committee in its discretion;
(e) upon the expiration of one (1) year following the date of
the Optionee's death, if death shall have occurred following the Optionee's
Termination of Employment and while the Option was still exercisable;
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(f) if a Change in Control or Corporate Reorganization as
described in section 3(c) above occurs prior to March 31, 2001, and the Optionee
incurs a Termination of Employment on or after the effective date of such Change
in Control or Corporate Reorganization and prior to March 31, 2001, the earlier
of June 30, 2001 or three (3) months following the date on which the Option
becomes fully vested and exercisable in accordance with section 3 above; or
(g) the ten (10) year anniversary of the Grant Date at 5:00
p.m., eastern standard time.
Upon its termination, the Option shall have no further force or effect
and the Optionee shall have no further rights under the Option or to any portion
of the Shares that have not been purchased pursuant to prior exercise of the
Option.
5. Exercise of Option.
(a) The Option may be exercised only by (i) the Optionee's
completion, execution and delivery to the Company of a notice of exercise and,
if required by the Company, an "investment letter" as supplied by the Company
confirming the Optionee's representations and warranties in section 16 of this
Agreement, including the representation that the Optionee is acquiring the
Shares for investment only and not with a view to the resale or other
distribution thereof, and (ii) the payment to the Company, pursuant to the terms
of this Agreement, of an amount equal to the Purchase Price multiplied by the
number of Shares being purchased as specified in the Optionee's notice of
exercise. The Optionee's right to exercise the Option shall be conditioned upon
and subject to satisfaction, in a manner acceptable to the Company, of any
withholding liability under any state or federal law arising in connection with
exercise of the Option. The Optionee must provide notice of exercise of the
Option with respect to no fewer than 100 Shares (or any lesser number of Shares
with respect to which the Option is vested and exercisable). The Optionee's
notice of exercise shall be given in the manner specified in section 23, but any
exercise of the Option shall be effective only when the items required by the
preceding sentence are actually received by the Company. The notice of exercise
and the "investment letter" may be in the form set forth in Exhibit A attached
to this Agreement.
Payment of the aggregate exercise price may be made in cash or by check
payable to the order of the Company for an amount in U.S. dollars equal to the
option price of such shares. Payment may also be made by delivery of shares of
Stock held by the Optionee for the requisite period necessary to avoid a charge
to the Company's earnings for financial reporting purposes, as determined by the
Committee in its discretion, and having an aggregate Fair Market Value equal to
the amount of cash that would otherwise be required to pay the full option
price, or by authorizing a third party to sell a portion of the shares acquired
upon exercise of the Option and remit to the Company a sufficient portion of the
sales proceeds to pay the full option price. Payment may also be made by
combining the above methods. To the extent that shares are used in making full
or partial payment of the option price, each such share will be valued at the
Fair Market Value thereof as of the date of exercise. Any overpayment will be
promptly refunded, and any underpayment will be deemed an exercise of such
lesser whole number of shares as the amount paid is sufficient to purchase.
(b) As soon as practicable following receipt of such notice
and payment, the Company shall notify the Optionee of any payment or other
allocation required under subsection (c) below. The Company shall deliver a
certificate or certificates for the shares to the Optionee as soon as
practicable after the Optionee has made any payment and/or allocation required
under subsection (c)
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below and executed and delivered any letter agreement as may be required under
subsection (a) above. Notwithstanding anything to the contrary in this
Agreement, the Option may be exercised only if compliance with all applicable
federal and state securities laws can be effected, as determined by the
Committee in its discretion.
(c) Issuance of shares upon exercise of the Option shall be
subject to the condition that the Optionee shall pay to the Company, in addition
to the option price of the shares purchased, the amount the Company is required
by law or regulation of any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with such exercise of the
Option, if any, as determined by the Committee in its discretion. In lieu of the
payment specified in this paragraph, the Committee may in its sole discretion
permit the Optionee to satisfy the obligation, in whole or in part, by the
methods specified in the subsection (a) above.
6. Restrictions on Transfer.
(a) Except as provided in subsections (b), (c), (d) and (e)
below, the Option and Shares acquired pursuant to exercise of the Option shall
not be sold, exchanged, delivered, assigned, bequeathed or gifted, pledged,
mortgaged, hypothecated or otherwise encumbered, transferred or permitted to be
transferred, or otherwise disposed of, whether voluntarily, involuntarily or by
operation of law (including, without limitation, the laws of bankruptcy,
intestacy, descent and distribution or succession) or on an absolute or
contingent basis. For this purpose, any reference to Optionee shall (when
applicable) be deemed to be and include references to Optionee's estate,
executors or administrators, personal or legal representatives and transferees
(direct or indirect).
(b) The Optionee shall be entitled to transfer all or a
portion of the Option, by gift or sale, to his or her immediate family or to a
trust which has as its only beneficiaries those individuals who are members of
the Optionee's immediate family, or to a partnership, limited liability company
or similar entity in exchange for interests, or one or more classes or series of
interests, in such entity the governing agreement of which provides to the
greatest extent permitted by applicable law that exclusive control over, and
investment discretion with respect to which, remains in the hands of members of
the Optionee's immediate family notwithstanding that such entity may have other
members or owners. In such case, the Option shall be exercisable only by such
transferee. For this purpose, the Optionee's "immediate family" is the Optionee
and the Optionee's spouse, children and/or grandchildren. As a condition
precedent to such transfer, each and every prospective transferee shall (i)
provide or cause to be provided to the Company, at its request, sufficient
evidence of the legal right and authority of such prospective transferee to have
the Option so transferred and (ii) comply with the provisions of subsection (f)
below.
(c) In the event of Optionee's death, the Option and/or any
Shares may be transferred to any executor, administrator, personal or legal
representative, legatee, heir or distributee of the estate of Optionee. As a
condition precedent to such transfer, each and every prospective transferee
shall (i) provide or cause to be provided to the Company, at its request,
sufficient evidence of the legal right and authority of such prospective
transferee to have the Option and/or Shares so transferred and (ii) comply with
the provisions of subsection (f) below.
(d) In the event of the Termination of Employment of Optionee,
the Company shall have the right (but shall not be obligated) to repurchase any
or all of the Shares owned by Optionee. The repurchase right, to the extent
applicable, may be exercised by the Company after the Termination of Employment
of Optionee by giving written notice of such exercise to Optionee within ninety
(90) days
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following the later of the date of such Termination of Employment or the date on
which Shares are purchased upon exercise of the Option, specifying the time and
date on which settlement on the purchase of such Shares by the Company is to be
made and the number of Shares to be so purchased by the Company. The date
specified shall not be later than sixty (60) days after the date such notice is
given. Settlement shall be held on the purchase of Shares under this section
6(d) at the principal executive offices of the Company or at such other place as
the Company shall notify Optionee. At settlement, Optionee shall deliver to the
Company the required materials described below and, simultaneously therewith,
the Company shall deliver to Optionee a good check in the amount of the purchase
price of the Shares purchased by the Company pursuant to this section 6(d). The
per share purchase price of the Shares purchased and sold pursuant to this
section 6(d) shall be as follows:
(i) If the Termination of Employment giving rise to the
purchase by the Company under this section 6(d) was other than for Cause, as
determined by the Committee in its discretion, then the per share purchase price
under this section 6(d) shall be (A) if the purchase by the Company under this
section 6(d) prior to the date on which the Company has consummated a public
offering of the Stock pursuant to the Act, the value of the Shares so purchased
on the date of such Termination of Employment as determined by the Committee
pursuant to the most recent valuation of the Stock by the Company's outside
accountants or, (B) if the purchase by the Company under this section 6(d)
occurs after the date on which the Company has consummated a public offering of
the Stock pursuant to the Act, the Fair Market Value of the Shares so purchased.
(ii) If the Termination of Employment giving rise to the
purchase by the Company under this section 6(d) was for Cause, as determined by
the Committee in its discretion, then the per share purchase price under this
section 6(d) shall be equal to the Purchase Price.
Upon the closing of any purchase by the Company of any Shares pursuant
to this section 6(d), Optionee shall deliver to the Company the certificate or
certificates representing the Shares being sold, free and clear of all options,
contracts, commitments, liens, pledges, security interests and other
encumbrances, duly endorsed for transfer, and such assignments and other
documents and instruments evidencing the title of Optionee and of Optionee's
compliance with this Agreement as may be reasonably required by the Company or
by counsel for the Company. Upon the closing of such purchase, Optionee shall be
deemed to have represented and warranted to the Company (and, if requested by
the Company, shall then represent and warrant in writing) that Optionee owns the
Shares being purchased, free and clear of all options, contracts, commitments,
liens, pledges, security interests and other encumbrances. Optionee agrees to
indemnify the Company against any and all losses, damages, liabilities, claims,
actions, proceedings, judgments, costs and expenses (including reasonable
attorneys' fees) arising out of any breach of such representation and warranty.
(e) Shares acquired pursuant to exercise of the Option may be
transferred pursuant to a Change in Control or Corporate Reorganization.
(f) The restrictions specified in subsections (a) above with
respect to the Shares (but not the Option) shall terminate upon consummation of
underwritten public offering by the Company of its equity securities pursuant to
an effective registration statement filed under the Act, including the Company's
initial public offering.
(g) In the event that, at any time or from time to time, the
Option and/or any Shares are transferred to any party (other than the Company)
pursuant to the provisions hereof, the transferee
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shall take the Option and/or such Shares pursuant to all of the provisions,
conditions and obligations of the Plan and this Agreement (including, without
limitation, the obligations to sell and transfer, and to offer to sell and
transfer, such Shares pursuant to the provisions of this section 6), and, as a
condition precedent to the transfer of the Option and/or such Shares, the
transferee shall agree in writing, for and on behalf of such transferee and such
transferee's successors and assigns, to be bound by all provisions of the Plan
and this Agreement.
7. Additional Restrictions.
(a) The Company may impose stop-transfer instructions with
respect to any shares (or other securities) subject to any restriction set forth
in this Agreement until the restriction has been satisfied or terminates.
(b) Optionee agrees that Optionee will not distribute or
resell any shares (or other securities) issuable upon exercise of the Option
granted hereby in violation of the Act, that Optionee will indemnify and hold
the Company harmless against all liability for any such violation, and that upon
request Optionee (i) will furnish a letter agreement in connection with any
exercise of this Option containing any representations and/or undertakings which
the Company shall request and (ii) will accept a certificate representing shares
of the Company bearing any legend restricting transferability as the Company
shall request to ensure compliance with securities laws. The shares shall not be
transferable except in compliance with the conditions indicated in the legend.
(c) In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective registration statement
filed under the Act, including the Company's initial public offering, Optionee
shall not sell, make any short sale of, loan, hypothecate, pledge, grant any
option for the purchase of, or otherwise dispose or transfer for value or
otherwise agree to engage in any of the foregoing transactions with respect to,
any Shares acquired under this Agreement without the prior written consent of
the Company or its underwriters. Such restriction (the "Market Stand-Off") shall
be in effect for such period of time from and after the effective date of the
final prospectus for the offering as may be requested by the Company or such
underwriters. In no event, however, shall such period exceed one hundred eighty
(180) days. Any new, substituted or additional securities that are by reason of
any recapitalization or reorganization distributed with respect to Shares
acquired under this Agreement shall be immediately subject to the Market
Stand-Off, to the same extent the Shares acquired under this Agreement is at
such time covered by such provisions.
8. Sale or Other Disposition by Majority Interest. Optionee hereby
irrevocably appoints the Company and its President, or either of them, as
Optionee's agents and attorneys-in-fact, with full power of substitution for and
in Optionee's name, to sell, exchange, transfer or otherwise dispose of all or a
portion of Optionee's Shares and to do any and all things and to execute any and
all documents and instruments in connection therewith, such powers of attorney
to become operable only in connection with a Company Reorganization or Change in
Control. Any sale, exchange, transfer or other disposition of all or a portion
of Optionee's Shares pursuant to the foregoing powers of attorney shall be made
upon substantially the same terms and conditions (including sale price per
share) applicable to a sale, exchange, transfer or other disposition of shares
of Stock owned by the holder or holders of a majority in percentage of the
outstanding shares of Stock. For purposes of determining the sale price of the
Shares under this section 8, there shall be excluded the consideration (if any)
paid or payable to the holder or holders of a majority in percentage of the
outstanding shares of Stock in connection with any employment, consulting,
noncompetition or similar agreements which such holder or holders may enter
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into in connection with or subsequent to such sale, transfer, exchange or other
disposition. The foregoing power of attorney shall not impose or be deemed to
impose any fiduciary duty or any other duty (except as set forth in this section
8) or obligation on either the Company or its President, shall be irrevocable
and coupled with an interest and shall not terminate by operation of law,
whether by the death, bankruptcy or adjudication of incompetence or insanity of
Optionee or the occurrence of any other event.
9. Engagement of Optionee. Nothing in this Agreement shall be construed
as constituting a commitment, guarantee, agreement or understanding of any kind
or nature that the Company shall continue to employ Optionee, nor shall this
Agreement affect in any way the right of the Company to terminate the employment
of Optionee at any time and for any reason. By Optionee's execution of this
Agreement, Optionee acknowledges and agrees that Optionee's employment is "at
will." No change of Optionee's duties as an employee of the Company shall result
in, or be deemed to be, a modification of any of the terms of this Agreement.
10. Burden and Benefit; Company. This Agreement shall be binding upon,
and shall inure to the benefit of, the Company and Optionee, and their
respective heirs, personal and legal representatives, successors and permitted
assigns. As used in this section 10, the term the "Company" shall also include
any business entity which is an affiliate of the Company by virtue of common
(although not identical) ownership, and for which Optionee is providing services
in any form during Optionee's employment with the Company or any such other
business entity. Optionee hereby consents to the enforcement of any and all of
the provisions of this Agreement by or for the benefit of the Company and any
such other business entity.
11. Optionee Not A Shareholder. Optionee shall not be deemed for any
purpose to be a shareholder of the Company with respect to any Shares as to
which this option shall not have been exercised and payment made as hereby
provided and a stock certificate for such shares actually issued to Optionee. No
adjustment will be made for dividends or other rights for which the record date
is prior to the date of such issuance.
12. Deferral of Issuance of Shares. Anything in this Agreement to the
contrary notwithstanding, if, at any time specified herein for the issue of
shares to Optionee, any law, or any regulation or requirement of the Securities
and Exchange Commission or other governmental authority having jurisdiction in
the premises shall require either the Company or Optionee to take any action in
connection with the shares then to be issued, the issue of such shares shall be
deferred until such action shall have been taken; the Company shall be under no
obligation to take such action; and the Company shall have no liability
whatsoever as a result of the non-issuance of such shares, except to refund to
Optionee any consideration tendered in respect of the exercise price.
13. Issuance of Shares. Shares of Stock issued pursuant to the exercise
of this option will be issued only in the name of Optionee and may not be
transferred into the name of any agent of or nominee for Optionee until such
time as Optionee has complied with the terms of this Agreement.
14. Terms and Conditions of Plan. The terms and conditions of the Plan,
the receipt of a copy of which Optionee hereby acknowledges by execution of this
Agreement, are incorporated by reference herein, and to the extent that any
conflict may exist between any term or provision of this Agreement and any term
or provision of the Plan, such term or provision of the Plan shall control.
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15. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of North Carolina, without reference to
its conflicts of laws rules.
16. Covenants and Representations of Optionee. Optionee represents,
warrants, covenants and agrees with the Company as follows:
(a) The Option is being received for Optionee's own account
without the participation of any other person, with the intent of holding the
Option and the Shares issuable pursuant thereto for investment and without the
intent of participating, directly or indirectly, in a distribution of the Shares
and not with a view to, or for resale in connection with, any distribution of
the Shares or any portion thereof.
(b) Optionee is not acquiring the Option or any Shares based
upon any representation, oral or written, by any person with respect to the
future value of, or income from, the Shares, but rather upon an independent
examination and judgment as to the prospects of the Company.
(c) Optionee has had the opportunity to ask questions of and
receive answers from the Company and its executive officers and to obtain all
information necessary for Optionee to make an informed decision with respect to
the investment in the Company represented by the Option and any Shares issued
upon its exercise.
(d) Optionee is able to bear the economic risk of any
investment in the Shares, including the risk of a complete loss of the
investment, and Optionee acknowledges that Optionee must continue to bear the
economic risk of any investment in Shares received upon exercise of the Option
for an indefinite period.
(e) Optionee understands and agrees that the Shares subject to
the Option may be issued and sold to Optionee without registration under any
state or federal laws relating to the registration of securities and in that
event will be issued and sold in reliance on exemptions from registration under
appropriate state and federal laws.
(f) Shares issued to Optionee upon exercise of the Option will
not be offered for sale, sold or transferred by Optionee other than pursuant to:
(i) an effective registration under applicable state securities laws or in a
transaction which is otherwise in compliance with those laws; (ii) an effective
registration under the Act, or a transaction otherwise in compliance with such
Act; and (iii) evidence satisfactory to the Company of compliance with all
applicable state and federal securities laws. The Company shall be entitled to
rely upon an opinion of counsel satisfactory to it with respect to compliance
with the foregoing laws.
(g) The Company will be under no obligation to register the
Shares issuable pursuant to the Option or to comply with any exemption available
for sale of the Shares by Optionee without registration, and the Company is
under no obligation to act in any manner so as to make Rule 144 promulgated
under the Act available with respect to any sale of the Shares by Optionee.
(h) Optionee has not relied upon the Company with respect to
any tax consequences related to the grant or exercise of this Option, or the
disposition of Shares purchased pursuant to its exercise. Optionee acknowledges
that, as a result of the grant and/or exercise of the Option, Optionee may incur
a substantial tax liability. Optionee assumes full responsibility for all such
consequences and
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the filing of all tax returns and elections Optionee may be required or find
desirable to file in connection therewith. In the event any valuation of the
Option or Shares purchased pursuant to its exercise must be made under federal
or state tax laws and such valuation affects any return or election of the
Company, Optionee agrees that the Company may determine such value and that
Optionee will observe any determination so made by the Company in all returns
and elections filed by Optionee. In the event the Company is required by
applicable law to collect any withholding, payroll or similar taxes by reason of
the grant or any exercise of the Option, Optionee agrees that the Company may
withhold such taxes from any monetary amounts otherwise payable by the Company
to Optionee and that, if such amounts are insufficient to cover the taxes
required to be collected by the Company, Optionee will pay to the Company such
additional amounts as are required.
(i) The agreements, representations, warranties and covenants
made by Optionee herein with respect to the Option shall also extend to and
apply to all of the Shares issued to Optionee from time to time pursuant to
exercise of the Option. Acceptance by Optionee of any certificate representing
Shares shall constitute a confirmation by Optionee that all such agreements,
representations, warranties and covenants made herein shall be true and correct
at that time.
17. Administrative Costs. All costs and expenses in connection with the
administration of this Agreement shall be borne by the Company.
18. Limitation of Liability. The liability of the Company, the
Committee, and their officers, employees and agents, under this Agreement and in
the award of the Shares hereunder is limited to the obligations set forth with
respect to such award, and nothing herein contained shall be interpreted as
imposing any liability in favor of the Optionee with respect to any loss, cost
or expense which such recipient may incur in connection with or arising out of
any transaction involving the Shares that is subject to the provisions of this
Agreement.
19. Unsecured and Unfunded Agreement. Any rights of the Optionee
hereunder shall be no greater than the right of an unsecured general creditor of
the Company. Any payments to be made hereunder shall be paid from the general
funds of the Company, and no special or separate fund shall be established and
no segregation of assets shall be made to assure payment of such amounts.
20. Integration. The parties hereto agree that this Agreement sets
forth all of the promises, agreements, conditions, understandings, warranties,
and representations between the parties with respect to the Shares and that
there are no promises, agreements, conditions, understandings, warranties, or
representations, oral or written, express or implied between the parties with
respect to the Shares other than as set forth in this Agreement. Any
modifications or any waiver of any provision contained in this Agreement shall
not be valid unless made in writing and signed by the person or persons sought
to be bound by such waiver or modifications.
21. Severability. The provisions of the Agreement are severable and if
any one or more provisions are determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provision to the extent enforceable in any jurisdiction, shall
nevertheless be binding and enforceable.
22. Waiver. The waiver by the Company of a breach of any provision of
this Agreement by the Optionee shall not operate or be construed as a waiver of
any subsequent breach by the Optionee.
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23. Notices. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, addressed as follows: to the Secretary
of the Company at 6000 Fairview Road, Suite 405, Charlotte, North Carolina,
28210, or at such other address as the Company, by notice to the Optionee, may
designate in writing from time to time; to Optionee at Optionee's address as
shown on the records of the Company, or at such other address as Optionee, by
notice to the Company, may designate in writing from time to time.
IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the day and year first above written.
YOUCENTRIC, INC.
By: /s/ Thomas M. Fedell
--------------------------------------
Thomas M. Fedell
Title: Chairman of the Board of Directors
OPTIONEE
/s/ Donald A. DeLoach
-----------------------------------------
Donald A. DeLoach
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EXHIBIT A
Attention: Chief Financial Officer
YOUcentric, Inc.
6000 Fairview Road, Suite 405
Charlotte, North Carolina 28210
Re: Exercise of Nonqualified Stock Option
Dear Sir:
Pursuant to the terms and conditions of the YOUcentric, Inc.
Nonqualified Stock Option Agreement dated _____________________ (the
"Agreement"), I hereby provide notice of my desire to exercise the option
evidenced by the Agreement (the "Option") and thereby purchase ____________
shares of the common stock [must be at least 100 Shares or any smaller number of
Shares as to which the Option is vested and exercisable] of YOUcentric, Inc. and
hereby tender payment in full for such shares in accordance with the terms of
the Agreement.
I hereby reaffirm that the representations and warranties made in
section 16 of the Agreement are true and correct as of the date of exercising
this option.
Very truly yours,
-----------------------------------
Donald A. DeLoach
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