EXHIBIT 10.9
THE INTERCEPT GROUP, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), entered into as of
this 1st day of February, 1998, by and between The Intercept Group, Inc., a
Georgia corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the "Optionee").
WHEREAS, effective as of November 12, 1996, the Board of Directors of
the Company adopted a stock option plan known as the "The Intercept Group, Inc.
Amended and Restated 1996 Stock Option Plan" (the "Plan"), and recommended that
the Plan be approved by the Company's shareholders; and
WHEREAS, the Committee has granted the Optionee a stock option to
purchase the number of shares of the Company's common stock as set forth below,
and in consideration of the granting of that stock option the Optionee intends
to remain in the employ of the Company; and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership, and also in consideration of the mutual covenants contained herein,
the parties hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant to the
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provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of
the Plan has been delivered to, and receipt is hereby acknowledged by,
the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations
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and conditions stated herein, the Company hereby evidences its grant
to the Optionee, not in lieu of salary or other compensation, of the
right and option (the "Option") to purchase all or any part of the
number of shares of the Company's Common Stock, no par value (the
"Stock"), set forth on Schedule A attached hereto and incorporated
herein by reference. The Option shall be exercisable in the amounts
and at the time specified on Schedule A. The Option shall expire and
shall not be exercisable on the date specified on Schedule A or on
such earlier date as determined pursuant to Section 8, 9, or 10
hereof. Schedule A states whether the Option is intended to be an
Incentive Stock Option.
3. Purchase Price. The price per share to be paid by the Optionee for
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the shares subject to this Option (the "Exercise Price") shall be as
specified on Schedule A, which price shall be an amount not less than
the Fair Market Value of a
a share of Stock as of the Date of Grant (as defined in Section 11
below) if the Option is an Incentive Stock Option.
4. Exercise Terms. The Optionee must exercise the Option for at least
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the lesser of 100 shares or the number of shares of Purchasable Stock
as to which the Option remains unexercised. In the event this Option
is not exercised with respect to all or any part of the shares subject
to this Option prior to its expiration, the shares with respect to
which this Option was not exercised shall no longer be subject to this
Option.
5. Option Non-Transferable. No Option shall be transferable by an
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Optionee other than by will or the laws of descent and distribution
or, in the case of non-Incentive Stock Options, pursuant to a
Qualified Domestic Relations Order, and no Option shall be
transferable by an Optionee who is a Section 16 Insider prior to
shareholder approval of the Plan. During the lifetime of an Optionee,
Options shall be exercisable only by such Optionee (or by such
Optionee's guardian or legal representative, should one be appointed).
6. Notice of Exercise of Option. This Option may be exercised by the
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Optionee, or by the Optionee's administrators, executors or personal
representatives, by a written notice (in substantially the form of the
Notice of Exercise attached hereto as Schedule B) signed by the
Optionee, or by such administrators, executors or personal
representatives, and delivered or mailed to the Company as specified
in Section 14 hereof to the attention of the President or such other
officer as the Company may designate. Any such notice shall (a)
specify the number of shares of Stock which the Optionee or the
Optionee's administrators, executors or personal representatives, as
the case may be, then elects to purchase hereunder, (b) contain such
information as may be reasonably required pursuant to Section 12
hereof, and (c) be accompanied by (i) a certified or cashier's check
payable to the Company in payment of the total Exercise Price
applicable to such shares as provided herein, (ii) shares of Stock
owned by the Optionee and duly endorsed or accompanied by stock
transfer powers having a Fair Market Value equal to the total Exercise
Price applicable to such shares purchased hereunder, or (iii) a
certified or cashier's check accompanied by the number of shares of
Stock whose Fair Market Value when added to the amount of the check
equals the total Exercise Price applicable to such shares purchased
hereunder. Upon receipt of any such notice and accompanying payment,
and subject to the terms hereof, the Company agrees to issue to the
Optionee or the Optionee's administrators, executors or personal
representatives, as the case may be, stock certificates for the number
of shares specified in such notice registered in the name of the
person exercising this Option.
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7. Adjustment in Option. The number of shares subject to this Option,
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the Exercise Price and other matters are subject to adjustment during
the term of this Option in accordance with Section 5.2 of the Plan.
8. Termination of Employment.
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(a) Except as otherwise specified in Schedule A hereto, in the
event of the termination of the Optionee's employment with the
Company or any of its subsidiaries, other than a termination that
is either (i) for Cause, (ii) voluntary on the part of the
Optionee and without written consent of the Company, or (iii) for
reasons of death or disability or retirement, the Optionee may
exercise this Option at any time within 90 days after such
termination to the extent of the number of shares which were
Purchasable hereunder at the date of such termination.
(b) Except as specified in Schedule A attached hereto, in the
event of a termination of the Optionee's employment that is
either (i) for Cause or (ii) voluntary on the part of the
Optionee and without the written consent of the Company, this
Option, to the extent not previously exercised, shall terminate
immediately and shall not thereafter be or become exercisable.
(c) Unless and to the extent otherwise provided in Exhibit A
hereto, in the event of the retirement of the Optionee at the
normal retirement date as prescribed from time to time by the
Company or any subsidiary, the Optionee shall continue to have
the right to exercise any Options for shares which were
Purchasable at the date of the Optionee's retirement (provided
that, on the date which is three months after the date of
retirement, the Options will become void and unexercisable unless
on the date of retirement the Optionee enters into a noncompete
agreement with The Intercept Group, Inc. and continues to comply
with such noncompete agreement). This Option does not confer
upon the Optionee any right with respect to continuance of
employment by the Company or by any of its subsidiaries. This
Option shall not be affected by any change of employment so long
as the Optionee continues to be an employee of the Company or one
of its subsidiaries.
9. Disabled Optionee. In the event of termination of employment
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because of the Optionee's becoming a Disabled Optionee, the Optionee
(or his or her personal representative) may exercise this Option,
within a period ending on the earlier of (a) the last day of the one
year period following the Optionee's death or (b) the expiration date
of this Option, to the extent of the number of shares which were
Purchasable hereunder at the date of such termination.
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10. Death of Optionee. Except as otherwise set forth in Schedule A
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with respect to the rights of the Optionee upon termination of
employment under Section 8(a) above, in the event of the Optionee's
death while employed by the Company or any of its subsidiaries or
within three months after a termination of such employment (if such
termination was neither (i) for cause nor (ii) voluntary on the part
of the Optionee and without the written consent of the Company), the
appropriate persons described in Section 6 hereof or persons to whom
all or a portion of this Option is transferred in accordance with
Section 5 hereof may exercise this Option at any time within a period
ending on the earlier of (a) the last day of the one year period
following the Optionee's death or (b) the expiration date of this
Option. If the Optionee was an employee of the Company at the time of
death, this Option may be so exercised to the extent of the number of
shares that were Purchasable hereunder at the date of death. If the
Optionee's employment terminated prior to his or her death, this
Option may be exercised only to the extent of the number of shares
covered by this Option which were Purchasable hereunder at the date of
such termination.
11. Date of Grant. This Option was granted by the Board of Directors
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of the Company on the date set forth in Schedule A (the "Date of
Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges
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that the issuance of capital stock of the Company is subject to
limitations imposed by federal and state law and the Optionee hereby
agrees that the Company shall not be obligated to issue any shares of
Stock upon exercise of this Option that would cause the Company to
violate law or any rule, regulation, order or consent decree of any
regulatory authority (including without limitation the Securities and
Exchange Commission) having jurisdiction over the affairs of the
Company. The Optionee agrees that he or she will provide the Company
with such information as is reasonably requested by the Company or its
counsel to determine whether the issuance of Stock complies with the
provisions described by this Section 12.
13. Restriction on Disposition of Shares. The shares purchased
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pursuant to the exercise of an Incentive Stock Option shall not be
transferred by the Optionee except pursuant to the Optionee's will, or
the laws of descent and distribution, until such date which is the
later of two years after the grant of such Incentive Stock Option or
one year after the transfer of the shares to the Optionee pursuant to
the exercise of such Incentive Stock Option.
14. Miscellaneous.
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(a) This Agreement shall be binding upon the parties hereto and
their representatives, successors and assigns.
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(b) This Agreement is executed and delivered in, and shall be
governed by the laws of, the State of Georgia.
(c) Any requests or notices to be given hereunder shall be deemed
given, and any elections or exercises to be made or accomplished
shall be deemed made or accomplished, upon actual delivery
thereof to the designated recipient, or three days after deposit
thereof in the United States mail, registered, return receipt
requested and postage prepaid, addressed, if to the Optionee, at
the address set forth below and, if to the Company, to the
executive offices of the Company at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(d) This Agreement may not be modified except in writing executed
by each of the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused
this Stock Option Agreement to be executed on behalf of the Company and the
Company's seal to be affixed hereto and attested by the Secretary or an
Assistant Secretary of the Company, and the Optionee has executed this Stock
Option Agreement under seal, all as of the day and year first above written.
THE INTERCEPT GROUP, INC. OPTIONEE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President Address:
ATTEST:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary/Assistant Secretary
[SEAL]
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SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
THE INTERCEPT GROUP, INC.
AND
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Dated: February 1, 1998
1. Number of Shares Subject to Option: 110,187 shares.
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2. This Option (Check one) [ X ] is [ ] is not an Incentive Stock Option.
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3. Option Exercise Price: $ 7.70 per share.
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4. Date of Grant: February 1, 1998
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5. Option Vesting Schedule:
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Check one:
( ) Options are exercisable with respect to all shares on or
after the date hereof
( X ) Options are exercisable with respect to the number of
shares indicated below on or after the date indicated next to the
number of shares:
No. of Shares Vesting Date
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20% Date of Grant
20% Upon the closing of the Company's initial public
offering ("IPO")
20% First Anniversary of Date of Grant
20% Second Anniversary of Date of Grant
20% Third Anniversary of Date of Grant
provided, however, that if the Company's IPO fails for any reason to close by
the First Anniversary of the Date of Grant, then the 20% that would have vested
upon the closing of the IPO will vest in equal amounts upon the First, Second
and Third Anniversaries of the Date of Grant.
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6. Option Exercise Period:
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Check One:
( X ) All options expire and are void unless exercised on or before
February 1, 2008.
( ) Options expire and are void unless exercised on or before the
date indicated next to the number of shares:
No. of Shares Expiration Date
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7. Effect of Termination of Employment of Optionee (if different from that set
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forth in Sections 8, 9 and 10 of the Stock Option Agreement):
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SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Intercept Holdings Inc. (the
"Company") of this election to exercise the undersigned's stock option to
purchase ______________ shares of the Company's common stock, no par value (the
"Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Company dated February 1, 1998. Accompanying
this Notice is (1) a certified or a cashier's check in the amount of $__________
payable to the Company, and/or (2) __________ shares of the Company's Common
Stock presently owned by the undersigned and duly endorsed or accompanied by
stock transfer powers, having an aggregate Fair Market Value (as defined in The
Intercept Group, Inc. Amended and Restated 1996 Stock Option Plan) as of the
date hereof of $____________, such amounts being equal, in the aggregate, to the
purchase price per share set forth in Section 3 of the Agreement multiplied by
the number of shares being purchased hereby (in each instance subject to
appropriate adjustment pursuant to Section 5.2 of the Agreement).
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this
_____ day of ______________, _______.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR,
EXECUTOR OR PERSONAL
REPRESENTATIVE]
__________________________________________________
Name:
Position (if other than Optionee):
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