Exhibit 4.5
NEW ENGLAND SYSTEMS
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement"), dated as of June
30, 1995, by and between XXXXXX XXXXXX SYSTEMS, INC. (d/b/a New England
Systems), a Massachusetts corporation (the "Company"), and Xxxx Xxxxx (the
"Optionee").
WHEREAS, in November 1992 in exchange for his services the Optionee was
granted an option to purchase 5% of the equity of the Company for no
consideration (the "Former Option");
WHEREAS, in connection with the recapitalization of the Company being
effected on the date hereof the Company desires to exchange the Former Option
for an option to purchase shares of the Company's Series C Preferred Stock, $.01
par value per share ("Series C Preferred Stock"), and the Optionee is willing to
do so;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Optionee hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, and
the Optionee hereby accepts, a Non-Qualified Stock Option (the "Option") to
purchase from the Company 88,200 shares (the "Shares") of Series C Preferred
Stock. This Option is not intended to constitute an "incentive stock option"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), nor to qualify for any other special tax treatment under
the Code.
2. Option Price. This Option may be exercised at a price of $.01
per share, subject to adjustment as provided below.
3. Term of Option. This Option shall expire on November 30, 2002
(the "Expiration Date"). This Option shall be immediately exercisable in full.
4. Other Conditions and Limitations. The Option shall not be
assignable or transferable by the Optionee otherwise
than by will or by the laws of descent and distribution, and the Option shall
be exercisable during the lifetime of the Optionee by the Optionee only.
5. Exercise of Option. Written notice of the exercise of the Option
or any portion thereof shall be given to the Chief Financial Officer of the
Company accompanied by the option price in cash or by check.
6. Stock Dividends; Stock Splits; Stock Combinations;
Recapitalizations. Appropriate adjustment shall be made in the maximum number
of Shares subject to this Option and in the number, kind and option price of
Shares covered by this Option to the extent it remains outstanding, to give
effect to any stock dividends, stock splits, stock combinations,
recapitalizations and other similar changes in the capital structure of the
Company after the date of this Agreement.
7. Capital Changes and Business Successions. Upon the occurrence of
any of the following events the Optionee's rights with respect to this Option
shall terminate: (i) a consolidation of the Company with or acquisition of the
Company by another entity in a merger or sale of all or substantially all of the
Company's assets; (ii) a recapitalization or reorganization of the Company
pursuant to which securities of the Company or of another corporation are issued
with respect to the outstanding shares of Series C Preferred Stock; or (iii) the
dissolution or liquidation of the Company. The Company shall provide written
notice to the Optionee with respect to any of the foregoing events at least ten
(10) days prior to the consummation thereof.
8. Taxation: Tax Withholding Requirements. The Optionee understands
and acknowledges that upon his exercise of the Option hereunder he will
recognize for income tax purposes an amount of ordinary income equal to the
excess, if any, of the fair market value of the Shares over the option price.
Any amounts required by any then applicable tax law to be withheld by the
Company from the compensation the Optionee is deemed to have received upon any
exercise of this Option or portion thereof shall, to the extent possible, be
withheld from the cash compensation paid by the Company to the Optionee; to the
extent such withholding amounts cannot be so withheld, the Company shall, within
seven (7) days after it receives notice of such exercise, notify the Optionee of
such withholding amounts not so withheld and the Optionee shall pay to the
Company the stated withholding amounts within ten (10) days of such notification
and
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prior to delivery of any certificate(s) for Shares purchased by the Optionee.
9. Compliance With Securities Laws. The Company shall not be
obligated to sell or issue any Shares pursuant to this Option unless the Shares
with respect to which this Option is being exercised are at that time
effectively registered or exempt from registration under the Securities Act of
1933, as amended (the "Act"), and any applicable state securities or blue sky
law ("Blue Sky Law"). In the event Shares or other securities shall be issued
which shall not be so registered, the Optionee hereby represents, warrants and
agrees that he will receive such Shares or other securities for investment and
not with a view to the resale or distribution thereof, and will not transfer
such Shares or other securities unless they are effectively registered for such
transfer under the Act and any applicable Blue Sky Law or unless an opinion of
counsel satisfactory to the Company has been received by the Company to the
effect that such registration is not required. The Optionee further agrees that
the stock certificate or certificates evidencing such Shares may bear a legend
setting forth such restrictions on their transferability.
10. Rights as a Stockholder; No Obligation to Continue Employment.
The Optionee shall have no rights as a stockholder with respect to the Shares
subject to the Option until the exercise of the Option and the issuance of a
stock certificate for the Shares with respect to which the Option shall have
been exercised. Nothing herein contained shall impose any obligation on the
Company or any of its subsidiaries or the Optionee with respect to the
Optionee's continued employment by the Company or any of its subsidiaries.
Nothing herein contained shall impose any obligation upon the Optionee to
exercise the Option.
11. No Other Equity Interest. The Optionee hereby expressly
relinquishes and waives any and all rights it may have had under the Former
Option and acknowledges that he has no equity interest in the Company other than
this Option.
12. Miscellaneous. In case any one or more of the provisions or part
of any provision contained in this Agreement shall, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision or part of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or part of a provision had never been contained herein.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto,
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and to their respective heirs, executors, administrators, successors and
assigns. This Agreement shall be governed by and construed and administered
in accordance with the laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
XXXXXX XXXXXX SYSTEMS, INC.
(D/B/A NEW ENGLAND SYSTEMS)
By:/s/ Xxxxx X. Xxxxx
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Date:
Accepted and Agreed:
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
Date: 2/18/97
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