1994 STOCK OPTION PLAN OF BACK CHANNEL INVESTMENTS, INC.
[FORM OF] STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement") is made by and
between Back Channel Investments, Inc., a Delaware corporation (the "Company"),
and _______ (the "Optionee") as of the date set forth on the signature page
hereto.
R E C I T A L S
A. The Board of Directors of the Company (the "Board") has
established the 1994 Stock Option Plan of the Company (the "Plan"), for the
purpose of providing to Employees and Directors of the Company and others an
opportunity to acquire shares of the Company's $.001 par value common stock (the
"Shares"); and
B. The Board of Directors or the Stock Option Committee of the
Company's Board of Directors (the "Committee") appointed to administer the Plan
has determined that it would be to the advantage and best interest of the
Company and its shareholders to grant the non-qualified stock option, Incentive
stock option or restricted stock grant provided for herein (the "Option") to the
Optionee as an inducement to remain in the service of the Company and as an
Incentive for Increased efforts during such service, and has advised the Company
thereof and instructed it to issue the Option.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below unless the context clearly indicates to
the contrary. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Plan. The masculine pronoun shall Include the
feminine and neuter, and the singular the plural, where the context so
indicates.
Section 1.1 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.2 - Company
"Company" shall mean Back Channel Investments, Inc.. In
addition, "Company" shall mean any corporation assuming, or issuing new employee
stock options in substitution for the Option and Incentive Stock Options (as
defined in Section 1.7 of the Plan), outstanding under the Plan, in a
transaction to which Section 425(a) of the Code applies.
Section 1.3 - Option
"Option" shall mean the option to purchase $.001 par value
common stock of the Company granted under this Agreement.
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Section 1.4 - Plan
"Plan" shall mean the 1994 Stock Option Plan of the Company.
Section 1.5 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.6 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II
GRANT OF OPTION
Section 2.1 - Grant of Option
In consideration of the Optionee's agreement to render faithful
and efficient services to the Company and for other good and valuable
consideration, on the date set forth on the Signature Page hereof (the "Date of
Grant"), the Company irrevocably grants to the Optionee the option to purchase
any part or all of an aggregate of the number of Shares set forth on the
Signature Page hereof and upon the terms and conditions set forth in this
Agreement.
Section 2.2 - Purchase Price
The purchase price of the Shares covered by the Option shall be
the amount set forth on the Signature Page hereof and shall be without
commission or other charge (the "Purchase Price").
Section 2.3 - Reservation of Rights
Nothing in the Plan or in this or any Stock Option Agreement
shall confer upon the Optionee any right to continue in the employ of the
Company or any Subsidiary or shall interfere with or restrict in any way the
rights of the Company and its Subsidiaries, which are hereby expressly reserved,
to discharge the Optionee at any time for any reason whatsoever, with or without
cause.
Section 2.4 - Adjustments in Option
In the event that the outstanding Shares subject to the Option
are changed into or exchanged for a different number or kind of shares of the
Company or other securities of the Company by reason of merger, consolidation,
recapitalization, reclassification, stock split up, stock dividend, or
combination of shares, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares as to which the Option, or portions
thereof then unexercised, shall be exercisable, to the end that after such event
the Optionee's proportionate interest shall be maintained as before the
occurrence of such event. Such adjustment in the Option shall be made without
change in the total price applicable to the unexercised portion of the Option
(except for any change in the aggregate price resulting from rounding-off of
share quantities or prices) and with any necessary corresponding adjustment in
the Purchase Price. Any such adjustment made by the Committee shall be final and
binding upon the Optionee, the Company, the Subsidiaries and all other
interested persons.
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ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) The Option shall become exercisable in cumulative
installments as set forth on the signature page hereto.
(b) Excluding Saturdays, Sundays, and nationally recognized
holidays, if the Optionee is absent from employment for any reason other than
vacation for an aggregate period exceeding sixty (60) days during the annual
period between the Date of Grant and the First Anniversary Date or any
successive Anniversary Date and the following Anniversary Date, then the latter
Anniversary Date shall be postponed by the number of all such days of absence.
This paragraph (b) shall not apply to Optionees who are Directors but not
Employees of the Company.
Section 3.2 - Duration of Exercisability
The installments provided for in Section 3.1 are cumulative.
Each such installment which becomes exercisable pursuant to Section 3.1 shall
remain exercisable until the expiration date set forth on the signature page of
this Agreement or until it becomes unexercisable under the Plan, whichever is
sooner.
Section 3.3 - Assumption of Option; Acceleration of Exercisability
In the event of the merger or consolidation of the Company with
or into another corporation, or the acquisition by another corporation or person
of all or substantially all of the Company's assets or eighty percent (80%) or
more of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, such Option shall be assumed or an equivalent option
substituted by any successor corporation of the Company. The Company undertakes
to make reasonable and adequate provision for such assumption or substitution of
the Option upon or in connection with such merger, consolidation, acquisition,
liquidation, or dissolution. The Committee may also, in its absolute discretion
and upon such terms and conditions as it deems appropriate, by resolution
adopted prior to such event, provide that at some time prior to the effective
date of such event this Option shall be exercisable as to all of the Shares
covered hereby, notwithstanding that this Option may not yet have become fully
exercisable under Section 3.1.
Section 3.4 - Option Not Transferable
Neither the Option nor any interest or right therein or part
thereof shall be liable for the debts, contracts, or engagements of the Optionee
or his successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment, or any other means
whether such disposition be voluntary or involuntary or by operation of law, by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (Including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 3.5
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only he or she may exercise
the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable, be exercised by his or her personal representative or by any
person empowered to do so under the Optionee's will or under the then applicable
laws of descent and distribution.
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Section 4.2 - Partial Exercise
Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior
to the time when the Option or portion thereof becomes unexercisable under the
Plan; provided, however, that each partial exercise shall be for not less than
one hundred (100) Shares (or minimum installment set forth in Section 3.1, if a
smaller number of Shares) and shall be for whole Shares only.
Section 4.3 - Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or the Secretary's office of all of the
following prior to the time when the Option or such portion becomes
unexercisable under the Plan:
(a) Notice in writing signed by the Optionee or the other person
then entitled to exercise the Option or portion thereof, stating that the Option
or portion thereof is thereby exercised, such notice complying with all
applicable rules established by the Committee; and
(b) (i)Full payment (in cash or by check) for the Shares with
respect to which such Option or portion
is exercised; or
(ii)Shares of any class of the Company's stock owned by the
Optionee duly endorsed for transfer to the Company with a fair
market value on the date of delivery equal to the aggregate
Option price of the Shares with respect to which such Option or
portion is thereby exercised; or
(iii)With the consent of the Committee, a full recourse
promissory note bearing interest (at least such rate as shall
then preclude the imputation of interest under the Code or any
successor provision) and payable upon such terms as may be
prescribed by the Committee. The Committee may also prescribe
the form of such note and the security to be given for such
note. No Option may, however, be exercised by delivery of a
promissory note or by a loan from the Company when or where such
loan or other extension of credit is prohibited by law; or
(iv)Any combination of the consideration provided in the
foregoing subsections (i), (ii), and (ii);
and
(c) Full payment to the Company of all amounts which, under
federal, state or local law, it is required to withhold upon exercise of the
Option; and
(d) In the event the Option or portion thereof shall be
exercised pursuant to Section 4.1 by any person or persons other than the
Optionee, appropriate proof of the right of such person or persons to exercise
the Option.
Section 4.4 - Conditions to Issuance of Stock Certificates
The Shares deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued Shares or
issued Shares which have then been reacquired by the Company. Such Shares shall
be fully paid and non-assessable. The Company shall not be required to issue or
deliver any certificate or certificates for Shares purchased upon the exercise
of the Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The completion of any registration or other qualification of
such Shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its absolute discretion, deem necessary or
advisable;
(b) The obtaining of any approval or other clearance from any
state or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable;
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(c) The payment to the Company of all amounts which, under
federal, state, or local law, it is required to withhold upon exercise of the
Option; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
It is understood that the Shares deliverable upon exercise of the Option have
been registered under the Securities Act, and the Company shall use its best
efforts to keep such registration current.
Section 4.5 - Rights as Stockholder
The holder of the Option shall not be, nor have any of the
rights or privileges of, a stockholder of the Company in respect of any Shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such Shares shall have been issued by the Company to
such holder.
ARTICLE V
OTHER PROVISIONS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation
and application of the Plan as are consistent therewith and to interpret or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee or the Special Committee in good faith
shall be final and binding upon the Optionee, the Company, the Subsidiaries and
all other interested persons. No member of the Committee or the Special
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. In its
absolute discretion, the Board may at any time and from time to time exercise
any and all rights and duties of the Committee under the Plan and this
Agreement.
Section 5.2 - Shares to Be Reserved
The Company shall at all times during the term of the Option
reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Agreement.
Section 5.3 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him or her at the
address set forth on the Signature Page hereof. By a notice given pursuant to
this Section 5.3, either party may hereafter designate a different address for
delivery of notices. Any notice which is required to be given to the Optionee
shall, if the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.3. Any notice shall be
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
Section 5.4 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 5.5 - Construction
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This Agreement shall be administered, interpreted, and enforced
under the laws of the State of Delaware.
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SIGNATURE PAGE
1994 STOCK OPTION PLAN OF BACK CHANNEL INVESTMENTS, INC.
Incentive Stock Option
In tandem with stock appreciation right
No stock appreciation right
Non-Qualified Option
AO Option
In tandem with stock appreciation right No stock
appreciation right In tandem with Restricted Stock No
Restricted Stock
Restricted stock grant without accompanying option
Purchase Price:
Number of Shares:
Vesting: Immediate as to the entire option.
Expiration:
I have read the Stock Option Agreement indicated above which was
adopted for use in connection with the 1994 Stock Option Plan. As Optionee, I
hereby agree to all of the terms of the Agreement.
Date of Grant: ___________
Optionee Name
Address
Optionee Social Security Number or Taxpayer Identification
Number:
Optionee Signature
The Company hereby agrees to all of the terms of the Agreement.
BACK CHANNEL INVESTMENTS, INC.
By:
Its:
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