Exhibit 10.2
CYBER DIALOGUE INC.
1996 STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT ("Option Agreement"),
dated as of December 31, 1996 by and between Cyber Dialogue Inc. (the "Company")
and XXXXXXXXX an employee of the Company or a division or subsidiary of the
Company (the "Optionee").
WHEREAS, pursuant to the Cyber Dialogue Inc., 1996 Stock
Option Plan (the "Plan"), the committee duly appointed by the Board of Directors
of the Company (the "Committee") has determined that the Optionee is to be
granted on the terms and conditions set forth herein, an option (the "Option")
to purchase shares of the common stock, par value $.01 per share, of the Company
(the "Common Stock') and hereby grants such Option; and
WHEREAS, it is the intention of the Committee that the Option
be a nonqualified option which is not intended to constitute an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. NUMBER OF SHARES AND OPTION PRICE. The Option represents the
right on the terms and conditions set forth herein, to
purchase 800 shares of Common Stock (the "Shares") at a price
(the "Option Price") of $21.10 per share, which is not less
than the Fair Market Value (as defined in the Plan) per share
of the shares of Common Stock as of the dated hereof.
2. TERM OF OPTION AND CONDITIONS OF EXERCISE.
a. TERM OF OPTION. Unless the Option is previously
terminated pursuant to this Option Agreement, the term of
the Option and of this Option Agreement shall commence on
the date hereof (the "Date of Grant") and terminate upon
the expiration of ten (10) years from the Date of Grant.
Upon the termination of the Option, all rights of the
Optionee hereunder shall cease.
b. CONDITIONS OF EXERCISE. The Option shall be exercisable
as follows:
i. the Option becomes exercisable for twenty-five
percent (25%) of the Shares commencing on the first
anniversary of the Date of Grant; and
ii. the Option becomes exercisable for an additional
twenty-five percent (25%) of the Shares commencing
on the second anniversary of the Date of Grant; and
iii. the Option becomes exercisable for an additional
twenty-five percent (25%) of the Shares commencing
on the third anniversary of the Date of Grant; and
iv. the Option becomes exercisable for an additional
twenty-five percent (25%) of the Shares commencing
on the fourth anniversary of the Date of Grant;
PROVIDED, HOWEVER, that the Option may be exercised
only to purchase whole Shares and in no case may a
fraction of a Share be purchased. The right of the
Optionee to purchase any or all full Shares with
respect to which this Option has become exercisable
as herein provided may be exercised in whole or in
part at any one time, or from time to time, prior to
the tenth anniversary of the Date of Grant; PROVIDED
FURTHER, HOWEVER, that the Option may not be
exercised at any one time as to fewer than 100
Shares unless the remaining number of Shares as to
which the Option is exercisable prior to such
exercise is less than 100 and such exercise is for
all such remaining Shares.
c. ACCELERATION. The Committee may, in its discretion,
accelerate the exercisability of the Option or any part
thereof, upon such circumstances and subject to such
terms and conditions as the Committee deems appropriate.
3. RIGHTS UPON TERMINATION OF EMPLOYMENT.
a. Except as provided in this Section 3, the Option may not
be exercised after the Optionee has ceased to be employed
by the Company or its Parent or Subsidiary Corporations
(each as defined in the Plan).
b. If the Optionee ceases to be employed by the Company or a
Parent or Subsidiary Corporation by reason of death or
disability prior to the expiration of the Option, the
Optionee or his or her legal representative may exercise
the Option at any time within a period of six months
after such cessation of employment to the extent that the
Option was exercisable on the date of his or her
cessation of employment.
c. Notwithstanding anything to the contrary in this Section
3, the Option shall not be exercisable later than ten
years from the Date of Grant.
4. NONTRANSFERABILITY OF OPTION. The Option and this Option
Agreement shall not be assignable or transferable otherwise
than by will or by the laws of descent and distribution; and
the Option may be exercised, during the lifetime of the
Optionee, only by the Optionee or by the Optionee's legal
representative.
5. EXERCISE OF OPTION. The Option shall be exercised in the
following manner; the Optionee, or the person(s) having the
right to exercise the Option upon the death or Disability of
the Optionee, shall deliver to the Company written notice
specifying the number of Shares which the Optionee elects to
purchase, together with cash in an amount equal to the price
to be paid upon such exercise of the Option; PROVIDED,
HOWEVER, that such purchase may be effected in whole or in
part with monies received from the Company at the time of
exercise as a compensatory cash payment, or with monies
borrowed from the Company pursuant to terms and conditions
determined by the Committee, in its discretion, separately
with respect to each exercise of an Option and each Optionee;
PROVIDED FURTHER, HOWEVER, that, each such method and time for
payment and each such borrowing and terms and conditions of
repayment shall be permitted by and be in compliance with
applicable law. In either such event, the Company shall issue
or cause to be issued, and deliver as promptly as possible to
the Optionee, certificates representing the appropriate number
of Shares which certificates shall be registered in the name
of the Optionee.
6. NOTICES. Any notice required or permitted under this Option
Agreement shall be deemed given when delivered personally, or
when deposited in a United States Post Office, postage
prepaid, addressed, as appropriate, to the Optionee either at
the Optionee's address as last known by the Company or such
other address as the Optionee may designate in writing to the
Company.
7. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Company to
enforce at any time any provision of this Option Agreement
shall in no way be construed to be a waiver of such provision
or of any other provision hereof.
8. INCORPORATION OF PLAN. The Plan is hereby incorporated herein
by reference and made a part hereof, and the Option and this
Option Agreement are subject to all terms and conditions of
the Plan.
9. GENERAL RESTRICTIONS. This award of an Option shall be subject
to the requirement that, if at any time the Committee shall
determine that (i) the listing, registration or qualification
of the shares of Common Stock subject or related thereto upon
any securities exchange or under any state or federal law, or
(ii) the consent or approval of any government regulatory
body, or (iii) an agreement by the recipient of an award with
respect to the disposition of shares of Common Stock, is
necessary or desirable as a condition or, or in connection
with, the granting of such Option or the issue or purchase of
shares of Common Stock thereunder, such award or issue or
purchase of shares of Common Stock thereunder, as the case may
be, may not be consummated in whole or in part unless such
listing, registration, qualification, consent, approval or
agreement shall have been effected or obtained free of any
conditions not acceptable to the Committee. In connection
therewith, the Optionee agrees to be bound by the terms of the
Stockholder's Agreement; (as defined in the Plan) with respect
to any Shares issued to the Optionee upon exercise, in whole
or in part, of this Option and to execute such documents as
shall be provided by the Company to evidence same.
10. RIGHTS OF A STOCKHOLDER. The Optionee shall have no rights as
a stockholder with respect to any Shares unless and until
stock certificates for such Shares are issued to the Optionee.
Upon the issuance of a stock certificate, all Shares covered
by such certificate shall be subject to the terms of the
Stockholder's Agreement.
11. RIGHTS TO TERMINATE EMPLOYMENT. Nothing in the Plan or in this
Option Agreement; shall confer upon the Optionee the right to
continue in the employment of the Company or its Parent or
Subsidiary Corporations or affect any right which the company
or its Parent or Subsidiary Corporations may have to terminate
the employment of the Optionee.
12. WITHHOLDING. Whenever the Company proposes or is required to
issue or transfer Shares under this Option Agreement, the
Company shall have the right to require the Optionee or his or
her legal representative to remit to the Company an amount
sufficient to satisfy any federal, state and/or local
withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares.
13. EFFECT OF CERTAIN CHANGES. The Option granted under this
Option Agreement is subject to the adjustments specified in
Section 9 of the Plan.
14. GOVERNING LAW. This Option Agreement shall be governed by and
construed according to the laws of the State of Delaware,
without regard to the conflicts of law rules thereof.
15. AMENDMENT AND TERMINATION. The Committee may amend or
terminate the Plan at any time; PROVIDED, HOWEVER, that the
amendment or termination of the Plan shall not without the
consent of the Optionee or his or her legal representative,
affect the Optionee's rights under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Option Agreement; as of the date and year set forth first above.
CYBER DIALOGUE INC.
By
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The undersigned hereby
accepts and agrees to all
the terms and provisions
of the foregoing Option
Agreement and to all of
the terms and provisions
of the Cyber Dialogue Inc.
1996 Stock Option Plan
incorporated herein by
reference.
By
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Optionee