Exhibit 10.5
▇▇▇▇▇ ▇▇▇▇▇▇▇
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated this 19th day of
December, 1997 is made by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and NETVALUE,
INC. (formerly known as VSQUARED, Inc., formerly known as COL Acquisition
Corp.), a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇▇ entered into a Consulting Agreement with the Company
dated September 18, 1996 (the "Consulting Agreement") pursuant to which he
agreed to render certain consulting services to the Company;
WHEREAS, ▇▇▇▇▇▇▇ and the Company have agreed to enter into an
Employment Agreement to be effective as of October 1, 1997 (the "Effective
Date"), which Employment Agreement shall supersede and make null and void the
Consulting Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements herein contained, and intending to be legally bound,
▇▇▇▇▇▇▇ and the Company hereby agree as follows:
1. Position. The Company agrees to employ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ agrees to
serve the Company during the term hereof as Vice President of Local Market
Administration, or in such other executive position as may be mutually agreed
upon by ▇▇▇▇▇▇▇ and the Company. ▇▇▇▇▇▇▇ shall be furnished with such facilities
and services as are suitable to his position and adequate for the performance of
his duties.
2. Duties. ▇▇▇▇▇▇▇ agrees to assume such duties and responsibilities as
may be consistent with the position specified in Section 1 hereof, and as may be
assigned to ▇▇▇▇▇▇▇ by the Board and in accordance with the by-laws of the
Company from time to time. ▇▇▇▇▇▇▇ agrees to devote his best efforts and such
time, skill, attention and energies as are necessary to the performance of his
duties and responsibilities under this Agreement, consistent with practices and
policies established from time to time by the Company's Board of Directors.
3. Term. The term of this Agreement shall commence as of the Effective
Date and shall continue for successive one (1) year terms, unless otherwise
terminated by either party in accordance with the provisions of Section 5
hereof.
4. Compensation.
4.1. Salary and Commission.
(i) For the period commencing on the Effective Date
and ending September 30, 1998 ("Year 1"), the Company shall pay ▇▇▇▇▇▇▇ a salary
of Eighty Five Thousand Dollars ($85,000.00) (the "Starting Salary"). The
Starting Salary shall be paid by the Company to ▇▇▇▇▇▇▇ in accordance with the
Company's normal payment practices (but not less frequently than bi-weekly). In
addition, during Year 1, the Company shall pay ▇▇▇▇▇▇▇ a commission (the "Year 1
Commission") as follows:
Year 1 Commission = 0.125 x (GR-COGS-COS-NRD)
where
GR = the gross revenues of the Company directly
attributable to the sales of the Company's products
and services in Local Markets Business Unit, as that
term is defined, from time to time, by the Company.
COGS = the cost of the goods sold to produce GR as
determined by the Company in accordance with
generally accepted accounting principles.
COS = the cost of the sales associated with GR including,
but not limited to, administrative and marketing
expenses as determined by the Company in accordance
with generally accepted accounting principles.
NRD = that part of GR attributable to non-recurring sales,
as determined by the Company, multiplied by a
fraction, the numerator of which is the number of
months over which GR is determined and the
denominator of which is 36. For any time period for
which NRD is calculated for purposes of this
Agreement, an amount equal to the non-recurring sales
of that time period less NRD shall be included in the
non-recurring sales of the subsequent time period for
which NRD is calculated for purposes of this
Agreement.
(Hereinafter, the amount represented by GR-COGS-COS-NRD for any given time
period shall be referred to as "Local Market Net Revenues").
(ii) After Year 1, the Company shall pay ▇▇▇▇▇▇▇ commissions
only, without guaranteed salary, in accordance with this Section 4.1. For the
one-year period
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commencing the day after the end of the Year 1 ("Year 2"), the one-year period
commencing the day after the end of Year 2 ("Year 3"), the one-year period
commencing the day after the end of Year 3 ("Year 4") and each one year period
thereafter (the "Going Forward Years"), the Company shall pay ▇▇▇▇▇▇▇
commissions (the "Year 2 Commission," "Year 3 Commission," "Year 4 Commission"
and "Going Forward Years Commissions", collectively, the "Earned Commissions")
as follows:
Year 2 Commission = 0.10 x Local Market Net Revenues
Year 3 Commission = 0.075 x Local Market Net Revenues
Year 4 Commission = 0.064 x Local Market Net Revenues
Going Forward Years Commissions = 0.025 x Local Market Net Revenues
(iii) The Company shall pay ▇▇▇▇▇▇▇ a draw against the Year 1
Commission equal to Fifteen Thousand Dollars ($15,000) and draws against each of
the Year 2 Commission, the Year 3 Commission, the Year 4 Commission, and the
Going Forward Years Commissions equal to Eighty Five Thousand Dollars
($85,000.00) (the "Draws"). The Draws shall be paid by the Company to ▇▇▇▇▇▇▇ in
accordance with the Company's normal payment practices (but not less than
bi-weekly). In the event that ▇▇▇▇▇▇▇'▇ level of sales production materially
decreases or the economic condition or prospects of the Company materially
deteriorates to the point where the Company is not meeting payroll, the amount
of the Draws may be adjusted from time to time at the Company's reasonable
discretion. Periodically, as set forth below, the Company shall pay to ▇▇▇▇▇▇▇
an amount equal to the Earned Commissions for that period less any Draws for
that same period (the "Periodic Payment"). The first Periodic Payment shall be
calculated as of June 30, 1998 and paid within two weeks thereafter. Subsequent
calculations of Periodic Payments shall be performed quarterly on September 30,
December 31, March 31, and June 30 of each subsequent one year period with
payments of these Periodic Payments to be made within two weeks of the
calculation thereof. In the event that the Draw is greater than the Earned
Commission for any given period, then such difference shall be considered to
have been paid as a Draw for the subsequent period. The computation of the
Earned Commission shall be performed solely by the Company; provided, however,
▇▇▇▇▇▇▇ shall have the right, upon reasonable notice to the Company, to examine
all work papers used to compute the Earned Commissions and to submit such work
papers, at ▇▇▇▇▇▇▇'▇ expense, to an independent and mutually agreed upon third
party for review. Subject to the terms of this Agreement, in the event that this
Agreement is terminated for any reason, the Company shall make all payments
earned and due to ▇▇▇▇▇▇▇ hereunder as of the date of such termination,
including any amounts earned but not yet payable, and neither party shall have
any further obligations or liability to the other party under this Agreement
except as otherwise provided herein to the contrary.
4.2. Fringe Benefits. ▇▇▇▇▇▇▇ shall be provided with those
fringe benefits which are to be provided to other similarly situated employees
of the Company.
4.3. Reimbursement of Expenses. Subject to such conditions as
the Board may from time to time reasonably determine, ▇▇▇▇▇▇▇ shall be
reimbursed upon presentation of vouchers or paid upon presentation of invoices
for reasonable expenses incurred by him in the performance
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of his duties in carrying out the terms of this Agreement; provided, however,
any expense in excess of $2,500 must be approved in advance by the President of
the Company.
4.4. Employee Stock Options. The Company and ▇▇▇▇▇▇▇ shall
enter into the Award Agreement attached hereto as Exhibit A on or before the
Effective Date. Such Award Agreement shall govern the terms and conditions of
the stock options to be granted to ▇▇▇▇▇▇▇ under the terms of the Company's
employee stock option plan.
5. Termination.
5.1. Company. Immediately upon written notice, the Company, by
action of the Board, may terminate this Agreement, at any time for cause solely
in the event of the (i) death or permanent disability of ▇▇▇▇▇▇▇; (ii) the
demonstrated continued failure by ▇▇▇▇▇▇▇ to perform his duties as set forth
herein or as otherwise required by the Board after written demand for
performance is made by the Board, which demand specifically identifies the
manner in which the Board finds there has been a failure to perform; provided,
however, that ▇▇▇▇▇▇▇ shall be given thirty (30) days to cure any such failure
(if such failure is capable of being cured); (iii) fraud, misappropriation,
embezzlement or other violation of the law or like nature or severity; (iv) a
material breach of this Agreement by ▇▇▇▇▇▇▇; provided, however, that ▇▇▇▇▇▇▇
shall be given thirty (30) days to cure any such breach (if such breach is
capable of being cured); or (v) willful misconduct of ▇▇▇▇▇▇▇ having a material
adverse effect on the business or prospects of the Company; all as may be
reasonably determined by the Board. For purposes of this Agreement, "permanent
disability" shall have the same meaning as such phrase is given under the long
term disability program sponsored by the Company or, in the absence of such
policy, as determined by a physician selected by the Company and reasonably
satisfactory to ▇▇▇▇▇▇▇ or his personal representative. Upon ninety (90) days
advance written notice, the Company may terminate this Agreement at any time
without cause.
5.2. ▇▇▇▇▇▇▇. Upon ten (10) days advance written notice,
▇▇▇▇▇▇▇ may terminate this Agreement at any time for cause solely in the event
of (i) the assignment to him of any duties materially inconsistent with his
position, duties and responsibilities as of the date of this Agreement; (ii) a
reduction in his compensation under this Agreement; (iii) other material breach
of this Agreement by the Company; or (iv) a demand by the Company that ▇▇▇▇▇▇▇
relocate. The right of ▇▇▇▇▇▇▇ to terminate this Agreement shall not become
effective if the breach by the Company is cured within ten (10) days after
receipt of written notification of such breach from ▇▇▇▇▇▇▇. Upon ninety (90)
days advance written notice, ▇▇▇▇▇▇▇ may terminate this Agreement at any time
without cause.
5.3. Consequences.
(a) In the event that the Company terminates this
Agreement for any cause set forth in Section 5.1 hereof, or in the event ▇▇▇▇▇▇▇
terminates this Agreement without cause, all rights of ▇▇▇▇▇▇▇ under this
Agreement shall terminate as of the date of the termination of this Agreement,
but ▇▇▇▇▇▇▇ shall continue to be bound by the covenant not to compete as set
forth in Section 9 hereof until one (1) year after the date of such termination.
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(b) Except as provided in Section 5.3(c), in the
event that the Company terminates this Agreement without cause, including
pursuant to Section 3 hereof, or in the event that ▇▇▇▇▇▇▇ terminates this
Agreement for any cause as set forth in Section 5.2 hereof, ▇▇▇▇▇▇▇ shall
receive an amount equal to two and one-half percent (2.5%) of Local Market Net
Revenues for the two year period subsequent to the termination (the "Severance
Pay"). If, however, the Company terminates this Agreement without cause prior to
September 30, 2001, the Severance Pay shall be calculated based on the
prevailing commission rate set forth in Section 4.1(b) of this Agreement until
September 30, 2001. Such amount shall be paid to ▇▇▇▇▇▇▇, net of all applicable
taxes that are required to be withheld, in accordance with procedures set forth
for the payment of Earned Commissions set forth in Section 4 hereof except that
▇▇▇▇▇▇▇ will not be paid a Draw against any amounts due under this Section
5.3(b). In such event, ▇▇▇▇▇▇▇ shall be treated as an employee for the period
during which he is receiving payments under this Section 5.3(b) and shall be
entitled to participate in the fringe benefit programs under Section 4.2 for the
duration of such period, notwithstanding that any of such benefits were provided
on a group basis prior to such termination. ▇▇▇▇▇▇▇ shall continue to be bound
by the covenant not to compete set forth in Section 8 hereof during the
Severance Period. For purposes of this Section 5.3(b) only, the death or
disability of ▇▇▇▇▇▇▇ shall be treated as a termination by the Company without
cause.
(c) The compensation payable to ▇▇▇▇▇▇▇ or his estate
or legal representative under any paragraph of this Section 5.3 shall be in
addition to any benefits payable in accordance with Section 4.2 hereof, but
shall be in lieu of other compensation ordinarily paid by the Company upon the
termination, death or disability of a senior officer of the Company.
(d) Notwithstanding anything in this Section 5.3 to
the contrary, in the event that this Agreement is terminated prior to September
30, 1998 by the Company, with or without cause, or by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ will
still receive the Starting Salary set forth in Section 4.1(a) of this Agreement.
6. Company Property. All materials, information and data of any kind
furnished by the Company to ▇▇▇▇▇▇▇ or developed by ▇▇▇▇▇▇▇ on behalf of the
Company or at the Company's direction or for the Company's use or otherwise in
connection with ▇▇▇▇▇▇▇'▇ employment hereunder, are and shall remain the sole
and confidential property of the Company. In the event that the Company requests
the return of such materials at any time during the term of this Agreement or at
or after the termination of this Agreement, ▇▇▇▇▇▇▇ shall immediately deliver
such material to the Company.
7. Confidentiality. During the term of this Agreement and at all times
thereafter, ▇▇▇▇▇▇▇ shall not use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any
person or entity other than the Company, any material referred to in Section 7
above or any information regarding the business methods or policies, procedures,
techniques, projects, trade secrets or other confidential knowledge relating to
the Company, its business or activities.
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8. Non-Compete. During the term of this Agreement and for one (1) year
thereafter (or during the Severance Period in the case of ▇▇▇▇▇▇▇'▇ termination
by the Company without cause or by ▇▇▇▇▇▇▇ for any cause set forth in Section
5.2), ▇▇▇▇▇▇▇ agrees that he shall not (a) engage or be interested in or receive
any compensation from any business that competes directly with the Company or
its affiliates or (b) induce or attempt to induce any employee, agent or
customer of the Company or any of its affiliates to terminate or reduce the
scope of his, her or its relationship with the Company or one of its affiliates.
For the purposes of this Agreement, ▇▇▇▇▇▇▇ shall be deemed to be interested in
a business if he is engaged or interested in that business as a stockholder,
director, officer, employee, salesman, sales representative, agent, broker,
partner, individual proprietor, lender, consultant or otherwise, but not if that
interest is limited solely to the ownership of five percent (5%) or less of any
class of the equity or debt securities of a corporation whose shares are listed
for trading on a national securities exchange or traded in the over-the-counter
market or ownership of five percent (5%) or less of any private company if such
ownership of the private company is acquired by ▇▇▇▇▇▇▇ by way of inheritance or
gift. ▇▇▇▇▇▇▇ shall not, directly or indirectly, engage in any other business
enterprise, or have an interest, financial or otherwise, in any other business
enterprise which interferes or is likely to interfere with ▇▇▇▇▇▇▇'▇ employment
hereunder.
9. Equitable Relief. ▇▇▇▇▇▇▇ acknowledges and agrees that the Company
may seek to enforce the covenants and restrictions pertaining to his obligations
in Sections 7, 8 and 9 hereof at law or in equity. The covenants and
restrictions pertaining to ▇▇▇▇▇▇▇'▇ obligations in Sections 7, 8 and 9 hereof
shall remain in full force and effect, notwithstanding the fact that this
Agreement has been terminated. If a court determines that the restrictions in
Section 9 are too broad or otherwise unreasonable under applicable law,
including with respect to time or geographical scope, the court is hereby
requested and authorized by the parties hereto to revise the foregoing
restrictions to include the maximum restriction allowable under the applicable
law. If ▇▇▇▇▇▇▇ violates any of the restrictions contained in Section 9, the
restrictive period shall not run in favor of ▇▇▇▇▇▇▇ from the time of the
commencement of any such violation until such time as such violation shall be
cured by ▇▇▇▇▇▇▇ to the satisfaction of the Company.
10. Prior Agreements. ▇▇▇▇▇▇▇ represents and warrants to the Company
that there are no restrictions, agreements or understandings of any kind
whatsoever to which ▇▇▇▇▇▇▇ is a party, or by which he is bound, which would
inhibit, prevent or make unlawful his execution or performance of this
Agreement, and that his execution and performance of this Agreement shall not
constitute a breach of any contract, agreement or understanding, whether oral or
written, to which he is a party or by which he is bound. ▇▇▇▇▇▇▇ further
represents and warrants that the Consulting Agreement is null and void.
11. Acknowledgment. ▇▇▇▇▇▇▇ hereby acknowledges and certifies that he
has read the terms of this Agreement, that he has been informed by the Company
that he should discuss it with an attorney of his choice, and that he
understands it terms and effects. ▇▇▇▇▇▇▇ further acknowledges
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that based on his training and experience, he has the capacity to earn a
livelihood by performing services as an employee or otherwise in a business that
does not violate the provisions of Section 9. Neither the Company, ▇▇▇▇▇▇▇ nor
their respective agents, representatives or attorneys have made any
representations to the other concerning the terms or effects of this Agreement
other than those contained herein.
12. Assignment. Without the prior written consent of the Company,
▇▇▇▇▇▇▇ shall have no right to exchange, convert, encumber or dispose of his
rights to receive benefits and payments under this Agreement, which payments,
benefits and rights thereto are non-assignable and non-transferrable. In the
event of any attempted assignment or transfer, ▇▇▇▇▇▇▇ shall forfeit his rights
to receive any payments or benefits, and the Company shall have no further
liability under this Agreement.
13. Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter contained
herein and supersedes any prior understandings and agreements between them
respecting such subject matter. Specifically, by executing this Agreement, the
Consulting Agreement shall become null and void and any rights and obligations
existing thereunder shall cease.
14. Headings. The headings describing the provisions of this Agreement
are for convenience of reference only, and shall not affect its interpretation.
15. Severability. If any provision of this Agreement is held illegal,
invalid or unenforceable, such illegality, invalidity, or unenforceability shall
not affect any other provision hereof. Such provision and the remainder of this
Agreement shall, in such circumstances, be modified to the extent necessary to
render enforceable the remaining provisions hereof.
16. Notices. All notices shall be in writing and shall be deemed to
have been given if presented personally, sent by recognized national overnight
carrier, or sent by certified or registered mail, postage prepaid, return
receipt requested, to the following addressees:
If to the Company:
netValue, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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With a copy to:
Klehr, Harrison, ▇▇▇▇▇▇, Branzburg & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to ▇▇▇▇▇▇▇:
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice of any change in such addresses shall also be given in the manner set
forth above. Whenever the giving of notice is required, the giving of such
notice may be waived by the party entitled to receive such notice.
17. Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall constitute one and the same instrument.
18. Waiver. The failure of either party to insist upon strict
performance of any of the terms or conditions of this Agreement shall not
constitute a waiver of any of its rights hereunder.
19. Successors and Assigns. This Agreement binds, inures to the benefit
of, and is enforceable by ▇▇▇▇▇▇▇ and his heirs and personal representatives,
and the Company and its successors and permitted assigns, and does not confer
any rights on any other persons or entities. The duties, obligations, rights and
responsibilities of ▇▇▇▇▇▇▇ under this Agreement are personal and shall not be
assigned by ▇▇▇▇▇▇▇ without the prior written consent of the Company, as set
forth in Section 7 hereof.
20. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
21. Amendments. This Agreement may be amended and supplemented only by
a written instrument duly executed by both parties.
22. Joint Participation in Drafting. Each party to this Agreement
participated in the drafting of this Agreement. As such, the language used
herein shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any party to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and date first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
NETVALUE, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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EXHIBIT A TO ▇▇▇▇▇ ▇▇▇▇▇▇▇ EMPLOYMENT AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT
netValue, Inc. (the "Company") hereby grants to ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Optionee") an option to purchase shares of Common Stock (the "Shares") of the
Company, at the price set forth herein subject to the terms set forth herein,
and in all respects subject to the terms and provisions of the netValue, Inc.
1996 Non-Qualified Stock Option Plan (as amended, the "Plan")], which terms and
provisions are hereby incorporated by reference herein. Unless the context
herein otherwise requires, the terms defined in the Plan shall have the same
meanings herein.
1. Nature of the Option. This Option is intended to be a nonstatutory
stock option and is not intended to be an incentive stock option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), or to otherwise qualify for any special tax benefits to the Optionee.
2. Date of Grant; Term of Option. This Option is granted as of the 19th
day of December, 1997, and, subject to the specific terms contained herein, may
not be exercised later than the fifth anniversary of the Vesting Event (as
hereinafter defined) with respect to such Option.
3. Option Exercise Price and Vesting. Subject to the terms and
conditions herein set forth and set forth in the Plan, the Company hereby grants
to Optionee an option to purchase an aggregate number of Shares of the Company
at the option price as follows:
(a) An option to purchase a total of 60,000 Shares at the
exercise prices set forth below. This Option shall vest and become exercisable
in annual installments, the Optionee having the right hereunder to purchase from
the Company, on and after the following dates (each such vesting period being
hereinafter referred to as a "Vesting Year" and each such date being hereinafter
referred to as a "Vesting Event"), the following number of Shares:
July 1, Shares Exercise Price
------- ------ --------------
1997 15,000 $ .80
1998 15,000 $4.00
1999 15,000 $5.00
2000 15,000 $6.00
(b) Notwithstanding the vesting and exercisability of any
Option granted hereunder, without the prior written consent of the Company,
Optionee may not sell, transfer, gift, pledge, hypothecate, assign or otherwise
dispose of any Shares issuable thereunder or any right or interest therein
granted under this Section 3, whether voluntary, by operation of law or
otherwise, prior to the second anniversary of the Grant Date.
(c) In the event that the Optionee's employment with the
Company is terminated:
(i) by the Company for cause (other than death or
disability) as set forth in Section 5.1 of Optionee's Employment Agreement, then
Optionee shall be entitled, for a period of one (1) year from the effective date
of such termination, to exercise all Options which have vested and become
exercisable pursuant to the provisions of Section 3 hereof, prior to the
effective date of such resignation. All Options not so exercised shall
terminate.
(ii) (A) by the Company without cause or (B) by
reason of the Optionee's death or disability, the Optionee (or, in the case of
Optionee's death, the Optionee's estate or a person who acquired the right to
exercise this Option by bequest or inheritance, or, in the case of disability,
by the Optionee or his legal guardian or representative, as applicable) shall be
entitled, for a period of five (5) years from the effective date of such
termination (the "Post-Termination Exercise Period"), to exercise (x) all
Options which have vested and become exercisable pursuant to the provisions of
Section 3 hereof, prior to the effective date of such resignation and (y) a
number of Options equal to the number of Options which would have vested and
become exercisable on the Vesting Date following the effective date of such
termination divided by the number of months (including partial months) in the
Vesting Period that Optionee was employed by the Company (the "Pro Rata
Options"). All Options not so exercised shall terminate.
4. Exercise of Option. This Option shall be exercisable during its term
only in accordance with the terms and provisions of the Plan and this Option as
follows:
(a) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise this Option, the
number of Shares in respect to which this Option is being exercised and such
other representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company hereunder or pursuant
to the provisions of the Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Secretary
of the Company or such other person as may be designated by the Company. The
written notice shall be accompanied by payment of the purchase price along with
any other agreements as the Company may require. Payment of the purchase price
shall be by check or such consideration and method of payment authorized by the
Board pursuant to the Plan. The certificate or certificates for the Shares as to
which the Option shall be exercised shall be registered in the name of the
Optionee and shall be legended as required under this Agreement, the Plan,
and/or applicable law.
(b) Restrictions on Exercise. This Option may not be exercised
if the issuance of the Shares upon such exercise would constitute a violation of
any applicable federal or state securities laws or other laws or regulations. As
a condition to the exercise of this Option, the Company may require the Optionee
to make any representation and warranty to the Company as may be required by any
applicable law or regulation, provided that such representation and warranty
shall not alter Optionee's right to sell any of the Shares, subject, however, to
customary and reasonable holdbacks in connection with any public sale of the
Company's Common Stock as reasonably required by the Company's underwriter(s).
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5. Investment Representations. Unless the Shares have been registered
under the Securities Act of 1933, as amended, in connection with the acquisition
of this Option, the Optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise
of this Option, he will be acquiring the Shares for investment for his own
account, not as a nominee or agent, and not with a view to, or for resale in
connection with, any distribution thereof.
(b) The Optionee has a preexisting business or personal
relationship with the Company or one of its directors, officers or controlling
persons and by reason of his business or financial experience, has, and could be
reasonably assumed to have, the capacity to protect his interests in connection
with the acquisition of this Option and the Shares.
6. Forfeiture of Option. Notwithstanding any other provision of this
Option, if, in the sole determination of the Board of Directors, the Optionee
(i) has disclosed trade secrets or confidential information of the Company in
contravention of Section 8 of Optionee's Employment Agreement, or (ii) has
breached any agreement with the Company in respect of confidentiality,
nondisclosure, noncompetition or otherwise, all unexercised Options shall
terminate as of the date of such determination. In the event of such a
determination, in addition to immediate termination of all unexercised Options,
the Optionee shall forfeit all Option shares for which the Company has not yet
delivered share certificates to the Optionee and the Company shall refund to the
Optionee the Option price paid to it. Notwithstanding anything herein to the
contrary, the Company may withhold delivery of share certificates pending the
resolution of any inquiry that could lead to a determination resulting in
forfeiture.
7. Continuation of Employment or Engagement. Neither the Plan nor this
Option shall confer upon Optionee any right to continue in the service of the
Company or limit, in any respect, the right of the Company to discharge the
Optionee at any time in accordance with the terms of Optionee's Employment
Agreement.
8. Withholding. The Company reserves the right to withhold, in
accordance with any applicable laws, from any consideration payable to Optionee
any taxes required to be withheld by federal, state or local law as a result of
the grant or exercise of this Option or the sale or other disposition of the
Shares issued upon exercise of this Option. If the amount of any consideration
payable to the Optionee is insufficient to pay such taxes or if no consideration
is payable to the Optionee, upon the request of the Company, the Optionee (or
such other person entitled to exercise the Option pursuant to Section 3(c)
hereof) shall pay to the Company an amount sufficient for the Company to satisfy
any federal, state or local tax withholding requirements it may incur, as a
result of the grant or exercise of this Option or the sale or other disposition
of the Shares issued upon the exercise of this Option.
9. The Plan. This Option is subject to, and the Company and the
Optionee agree to be bound by, all of the terms and conditions of the Plan as
such Plan may be amended from time to time in accordance with the terms thereof.
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Pursuant to the Plan, the Board of Directors of the Company is authorized to
adopt rules and regulations not inconsistent with the Plan as it shall deem
appropriate and proper. A copy of the Plan in its present form is available for
inspection during business hours by the Optionee or the persons entitled to
exercise this Option at the Company's principal office.
10. Entire Agreement. This Agreement, together with the Plan and the
other exhibits attached thereto or hereto, represents the entire agreement
between the parties.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Delaware.
12. Amendment. Subject to the provisions of the Plan, this Agreement
may only be amended by a writing signed by each of the parties hereto.
DATE: December 19, 1997 NETVALUE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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ACKNOWLEDGMENT
The Optionee acknowledges receipt of a copy of the Plan, a copy of
which is attached hereto, and represents that he has read and is familiar with
the terms and provisions thereof, and hereby accepts this Option subject to all
of the terms and provisions thereof. The Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board of
Directors or the Committee upon any questions arising under the Plan.
DATE:________________________ ___________________________________
Optionee: ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
Address
___________________________________
City, State, Zip
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON THE EXERCISE
OF THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE, TRANSFER OR DISTRIBUTION THEREOF. NO SUCH SALE,
TRANSFER OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATING THERETO OR A SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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