EXHIBIT 10.9.3
OPTION AGREEMENT
STOCK OPTION NOT UNDER A PLAN
AMERICAN CARD TECHNOLOGY, INC., a Delaware corporation (the "Company"),
and SHREVEPORT ACQUISITION CORP., a Connecticut corporation (the "Optionee"),
DO HEREBY AGREE as follows:
1. GRANT. The Company grants to the Optionee an option (the "Option")
to purchase 100,000 shares (the "Shares") of the Company's Common Stock, par
value $.001 per share ("Common Stock") at the purchase price of $5.00 a share
(the "Exercise Price"). The date of grant of the Option is December 11, 1996
(the "Date of Grant"). The grant is not made pursuant to any of the Company's
stock option plans.
2. PURCHASE OF SHARES. The Company shall not be obligated to issue or
deliver any Shares upon exercise of the Option if to do so would violate the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities law. Unless a registration statement with respect to the Shares to
be purchased upon exercise of the Option is in effect under the Securities Act
and any applicable state securities law, the Optionee's right to purchase such
Shares shall be subject to the condition that the Company shall have received
such assurance as it may reasonably request that such purchase will be in
accordance with an applicable exemption from the registration requirements of
each such law. The Company shall have no obligation to file any such
registration statement or to take any other action required or permitted by any
such law. However, the Company shall give the Optionee and its counsel access
to such information as may reasonably be requested to enable such counsel to
express an opinion as to the availability of an exemption from such
registration requirements.
3. SALE OF SHARES. The Optionee shall not be entitled to transfer the
Shares except pursuant to (i) an effective registration statement under the
Securities Act, or (ii) if there is no registration statement in effect,
pursuant to a specific exemption from registration under the Securities Act.
Prior to offering or selling the Shares upon claim of exemption, the Optionee
shall obtain a written opinion from counsel reasonably satisfactory to the
Company to the effect that such exemption is available and that registration of
the Shares with the Securities and Exchange Commission is not required, or
shall deliver a "no-action" letter from the Securities and Exchange Commission
with respect to the proposed sale, transfer or distribution of the Shares.
4. TERMS OF EXERCISE. This Option may be exercised, in whole or in
part, commencing on the earlier of (i) that date which is three (3) months
after the closing of the Company's initial public offering or (ii) January 1,
1998. Notwithstanding the foregoing, the Optionee agrees not to sell, pledge,
hypothecate, encumber, or otherwise dispose of the Shares for a period of
twelve (12) months following the effective date of the Company's initial public
offering, subject to earlier release at the discretion of the underwriter of
such initial public offering.
5. EXPIRATION OF OPTION. This Option is not exercisable after the
expiration of ten years from the Date of Grant.
6. EXERCISE AND PAYMENT. The Option shall be exercised by delivery to
the Company at its principal executive office (Attention: Richard J.
Shea, Jr., Secretary) of (i) a signed written notice of
exercise setting forth the number of Shares to be purchased and (ii) payment in
full of the option price for the Shares to be purchased. The option price to
be paid upon the exercise of this Option may be made by either of the following
methods:
(a) payment in cash in the full amount of the option price; or
(b) in lieu of cash payment, at any time until the expiration of this
Option, the holder of this Option ("Holder") may, at its option, exchange the
Option represented by this Option Agreement, in whole or in part (an "Option
Exchange"), into the number of Shares determined in accordance with this
paragraph 6(b), by surrendering this Option Agreement at the principal office
of the Company accompanied by a notice stating such Holder's intent to effect
such exchange, the number of Shares to be exchanged, and the date on which the
Holder requests that such Option Exchange occur (the "Notice of Exchange").
The Option Exchange shall take place on the date specified in the Notice of
Exchange or, if later, the date the Notice of Exchange is received by the
Company (the "Exchange Date"). Certificates for the Shares issuable upon such
Option Exchange and, if applicable, a new Option Agreement (a "Remainder Option
Agreement") of like tenor evidencing the Shares which were subject to the
surrendered Option Agreement and not included in the Option Exchange, shall be
issued as of the Exchange Date and delivered to the Holder within three (3)
business days following the Exchange Date. In connection with any Option
Exchange, the Holder's Option Agreement shall represent the right to subscribe
for and acquire (I) the number of Shares (rounded to the next highest integer)
equal to (A) the number of Shares specified by the Holder in its Notice of
Exchange (the "Total Share Number") less (B) the number of Shares equal to the
quotient obtained by dividing (i) the product of the Total Share Number and the
existing Exercise Price per Share by (ii) the current Market Price (as
hereinafter defined) of a Share of Common Stock, and (II) a Remainder Option
Agreement, if applicable.
"Market Price" at any date shall be deemed to be the average of the last
reported sale price, or, in case no such reported sale takes place on such day,
the average of the last reported sale prices for the last three (3) trading
days, in either case as officially reported by the principal securities
exchange on which the Common Stock is listed or admitted to trading or as
reported in the NASDAQ National Market System, or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
the NASDAQ National Market System, the closing bid price as furnished by the
National Association of Securities Dealers, Inc. through NASDAQ or similar
organization if NASDAQ is no longer reporting such information, or if the
Common Stock is not quoted on NASDAQ, as determined in good faith by resolution
of the Board of Directors of the Company, based on the best information
available to it for the day immediately preceding the Exchange Date, the day of
the Exchange Date, and the day immediately after the Exchange Date.
7. RIGHTS. The Optionee shall not, by reason of the granting to it of
this Option, have or thereby acquire any rights of a shareholder of the Company
with respect to any Shares covered by this Option unless and until a
certificate for such Shares shall have been issued and delivered to it.
8. ADJUSTMENT AND SUBSTITUTION OF SHARES. If a dividend or other
distribution shall be declared upon the Common Stock payable in shares of the
Common Stock, the number of shares of the Common Stock then subject to the
Option may be adjusted by adding thereto the number of shares which would have
been distributable thereon if such shares had been outstanding on the date
fixed for determining the shareholders entitled to receive such stock dividend
or distribution.
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If the outstanding shares of the Common Stock shall be changed into
or exchangeable for a different number or kind of shares of stock or other
securities of the Company or another corporation, whether through
reorganization, reclassification, recapitalization, stock split-up, combination
of shares, merger or consolidation, then there shall be substituted for each
share of the Common Stock then subject to the Option the number and kind of
shares of stock or other securities into which each outstanding share of the
Common Stock shall be so changed or for which each such share shall be
exchangeable.
In case of any adjustment or substitution as provided for in this
paragraph 8, the aggregate option price for all shares subject to the Option
prior to such adjustment or substitution shall be the aggregate option price
for all shares of stock or other securities (including any fraction) to which
such shares shall have been adjusted or which shall have been substituted for
such shares. The adjusted price for each share or other security shall be
carried to at least three decimal places with the last decimal place rounded
upward to the nearest whole number.
No adjustment or substitution provided for in this paragraph 8 shall
require the Company to issue or sell a fraction of a share or other security.
Accordingly, all fractions of a share or other security which result from any
such adjustment or substitution shall be eliminated and not carried forward to
any subsequent adjustment or substitution.
All references in this Agreement to Shares shall, where the context
so requires, be deemed to be references to such Shares as adjusted pursuant to
this paragraph 8.
9. AMENDMENT. This Agreement may be amended unilaterally by the Company
in order to comply with federal and state laws regulating options and the
issuance and sale of the Company's securities.
10. INTERPRETATION. Any question which shall arise under or in any way
relate to the interpretation or construction of this Option Agreement shall be
resolved by the Board, and its decision shall be final, binding and conclusive
for all purposes.
WITNESS, the signatures of an authorized officer of the Optionee and an
authorized officer of the Company as of the 11th day of December, 1996.
Signed, Sealed, and Delivered
in the Presence of: AMERICAN CARD TECHNOLOGY, INC.
By: /s/ Raymond Findley
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Its President
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SHREVEPORT ACQUISITION CORP.
By: /s/ Lawrence Perl
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Its Vice President
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AMENDMENT TO OPTION AGREEMENT
STOCK OPTION NOT UNDER A PLAN
THIS AMENDMENT TO OPTION AGREEMENT, dated as of the 2nd day of January,
1998, by and between AMERICAN CARD TECHNOLOGY, INC., a Delaware corporation
(the "Company"), and RAYMOND RONCARI, of Windsor Locks, Connecticut (the
"Optionee").
WITNESSETH:
WHEREAS, the Company and Shreveport Acquisition Corp., a Connecticut
corporation ("Shreveport"), entered into an Option Agreement dated as of
December 11, 1996 (the "Option Agreement") whereby the Company granted to
Optionee an option (the "Option") to purchase 100,000 shares (the "Shares") of
the Company's Common Stock, par value $.001 per share ("Common Stock") at the
purchase price of $5.00 a share (the "Exercise Price"); and
WHEREAS, Shreveport has assigned the Option to Optionee as of December 31,
1997; and
WHEREAS, the Option restricts Optionee from transferring or disposing of
any Shares for a period of twelve (12) months following the effective date of
the Company's initial public offering, subject to earlier release at the
discretion of the underwriter of such initial public offering.
WHEREAS, the Company has entered into an agreement with an underwriter to
pursue an initial public offering of Common Stock (an "IPO"); and
WHEREAS, such underwriter has indicated that the IPO shall require that
certain terms and conditions of the Option be adjusted so that the Option is
not an impediment to the IPO; and
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. The Option Agreement is hereby amended as follows:
(a) Paragraph 1 of the Option Agreement is hereby deleted in its
entirety and the following substituted in lieu therefor:
"1. GRANT. The Company grants to the Optionee an
option (the "Option") to purchase 100,000 shares (the "Shares")
of the Company's Common Stock, par value $.001 per share
("Common Stock") at the purchase price of $12.00 a share (the
"Exercise Price"). The date of grant of the Option is December
11, 1996 (the "Date of Grant"). The grant is not made pursuant
to any of the Company's stock option plans."
(b) Paragraph 4 of the Option Agreement is hereby deleted in its
entirety and the following substituted in lieu therefor:
"4. TERMS OF EXERCISE. This Option may be exercised, in
whole or in part, commencing on the earlier of (i) that date which
is three (3) months after the closing of the Company's initial
public offering or (ii) January 1, 1999. Notwithstanding the
foregoing, the Optionee agrees not to sell, pledge, hypothecate,
encumber, or otherwise dispose of the Shares for a period of twelve
(12) months following the effective date of the Company's initial
public offering, subject to earlier release at the discretion of
the underwriter of such initial public offering."
(c) Paragraph 5 of the Option Agreement is hereby deleted in its
entirety and the following substituted in lieu therefor:
"5. EXPIRATION OF OPTION. This Option is not
exercisable after the expiration of five years from the Date of
Grant."
2. Except as modified hereby, the Option Agreement remains in full force
and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
Signed, Sealed, and Delivered
in the Presence of: AMERICAN CARD TECHNOLOGY, INC.
By: /s/ Lawrence O. Perl
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Its Chief Executive Officer
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/s/ Raymond Roncari
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Raymond Roncari
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