Exhibit 4.4
CYBERSTORAGE SYSTEMS CORPORATION
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NON-QUALIFIED STOCK OPTION AGREEMENT
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NON-QUALIFIED STOCK OPTION AGREEMENT made as of ______________ between
CYBERSTORAGE SYSTEMS CORPORATION, a Massachusetts corporation (hereinafter
called the Corporation), and _______________ (hereinafter called the Optionee),
a member of the Board of Directors of the Corporation.
The Corporation desires, by affording the Optionee an opportunity to
purchase shares of its Common Stock, no par value (hereinafter called the Common
Stock), as hereinafter provided, to carry out the purpose of the Corporation's
1999 Stock Option Plan adopted on August 9, 1999 (the "Plan").
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto have
agreed, and do hereby agree as follows:
1. Grant of Option. Subject to the conditions hereinafter described, the
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Corporation hereby irrevocably grants to the Optionee the right and option
(hereinafter called the Option) to purchase all or any part of an aggregate of
____ shares of the Common Stock (such number being subject to adjustment as
provided in paragraph 8 hereof) on the terms and conditions herein set forth.
This Option is not intended by the parties hereto to be treated as an incentive
stock option (as such term is defined under Section 422 of the Internal Revenue
Code of 1986 (hereinafter called the Code)).
2. Purchase Price. The purchase price of the shares of the Common Stock
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covered by the Option shall be ____ per share.
3. Term of Option. The term of the Option shall be for a period of five
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(5) years from the date hereof, subject to earlier termination as provided in
paragraph 7 hereof. The Option shall become exercisable on the following
schedule:
Date No. of Shares Exercisable
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provided, however, that, in accordance with and subject to the provisions of the
Plan, the Committee may, in its discretion, accelerate the date that any
installment of this Option becomes exercisable and provided further that this
Option shall become exercisable in full upon a Change of Control subject to the
provisions of paragraph 4 hereof. The purchase price of the shares as to which
the Option shall be exercised shall be paid at the time of exercise as provided
in paragraph 9 hereof.
4. Change of Control. Upon the occurrence of a Change of Control, unless
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otherwise specifically prohibited under applicable laws, or by the rules and
regulations of any governing governmental agencies, the Option shall become
immediately exercisable. For purposes of this paragraph 4, the term "Change of
Control" shall mean:
(a) the Company is merged or consolidated or reorganized into or
with another corporation or other legal person (hereinafter called an
Acquiror) and as a result of such merger, consolidation or reorganization
less than 51% of the outstanding voting securities or other capital
interests of the surviving, resulting or acquiring corporation or other
legal person are owned in the aggregate by the stockholders of the Company,
directly or indirectly, immediately prior to such merger, consolidation or
reorganization, other than by the Acquiror or any corporation or other
legal person controlling, controlled by or under common control with the
Acquiror; or
(b) the Company sells all or substantially all of its business
and/or assets to an Acquiror, of which less than 51% of the outstanding
voting securities or other capital interests are owned in the aggregate by
the stockholders of the Company, directly or indirectly, immediately prior
to such sale, other than by any corporation or other legal person
controlling, controlled by or under common control with the Acquiror; or
(c) During any period of two consecutive years (or such shorter
period as the Company shall have been in existence), individuals who at the
beginning of any such period constitute the directors of the Company cease
for any reason to constitute at least a majority thereof unless the
election, or the nomination for election by the Company's stockholders, of
each new director of the Company was approved by a vote of at least two-
thirds of such directors of
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the Company then still in office who were directors of the Company at the
beginning of any such period.
5. Non-transferability. The Option shall not be transferable otherwise
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than by will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined in the Code, or Title I of the Employee
Retirement Income Security Act of 1974, as amended or the regulations
thereunder. Subject to the foregoing, the Option may be exercised, during the
lifetime of the Optionee, only by him. More particularly (but without limiting
the generality of the foregoing), the Option may not be assigned, transferred
(except as provided above), pledged, or hypothecated in any way, shall not be
assignable by operation of law and shall not be subject to execution,
attachment, or similar process. Any attempted assignment, transfer, pledge,
hypothecation, or other disposition of the Option contrary to the provisions
hereof, and the levy of any execution, attachment, or similar process upon the
Option shall be null and void and without effect.
6. Registration of Shares. Unless the shares (the "Shares") to be issued
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upon exercise of this Option have been effectively registered under the
Securities Act of 1933 as now in force or hereafter amended, the Corporation
shall be under no obligation to issue any Shares covered by any option unless
the person who exercises this Option, in whole or in part, shall give a written
representation and undertaking to the Corporation which is satisfactory in form
and scope to counsel to the Corporation and upon which, in the opinion of such
counsel, the Corporation may reasonably rely, that he is acquiring the Shares
issued to him pursuant to such exercise of the Option for his own account as an
investment and not with a view to, or for sale in connection with, the
distribution of any such Shares, and that he will make no transfer of the same
except in compliance with any rules and regulations in force at the time of such
transfer under the Securities Act of 1933, or any other applicable law, and,
that if Shares are issued without such registration, a legend to this effect may
be endorsed upon the securities so issued.
7. Termination of Relationship. Except as otherwise provided in this
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paragraph, the Option shall terminate and be canceled on the first to occur of
the expiration date of this Option as set forth in paragraph 3 hereof or the
date which is three (3) months following the date on which the Optionee ceases
to be a member of the Board of Directors of the Corporation. The Option shall
be exercisable during such three month period to the extent it was exercisable
on the date of such termination. In the event that such service on the
Corporation's Board of Directors shall be terminated on account of the
Optionee's death, or permanent disability (as such term is defined in Section
22(e)(3) of the Code), the Option may be exercised in full, without regard to
any installments under paragraph 3 hereof, by the optionee or, by his heirs,
legatees, or legal representatives, as the case may be, during its specified
term prior to one (1) year after the date of death, permanent disability, or
retirement, but in any event not later than five years from the date hereof.
Nothing in this Option Agreement shall interfere in any way with the right of
the Corporation to remove the Optionee from, or fail to reelect
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the Optionee as a member of, the Board of Directors of the Corporation.
8. Changes in Capital Structure. The number of shares subject to the
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Option shall be adjusted as follows: (a) in the event that the number of
outstanding shares of Common Stock of the Corporation is changed by any stock
dividend, stock split or combination of shares, the number of shares then
subject to the Option shall be proportionately adjusted; (b) in the event of any
merger, consolidation or reorganization of the Corporation with any other
corporation or corporations, there shall be substituted, on an equitable basis
as determined by the Board of Directors of the Corporation as provided in the
Corporation's 1994 Stock Option Plan, as amended, for each share of Common Stock
then subject to the Option, the number and kind of shares of Stock or other
securities to which the holders of shares of Common Stock of the Corporation
will be entitled pursuant to the transaction; and (c) in the event of any other
relevant change in the capitalization of the Corporation, the Corporation shall
provide for an equitable adjustment in the number of shares of Common Stock then
subject to the Option. In the event of any such adjustment, the purchase price
per share shall be proportionately adjusted so that the person or persons
exercising the Option shall receive, for the aggregate price paid upon such
exercise, the aggregate number and class of shares which, if shares of Common
Stock (as authorized at the date hereof) had been purchased at the date hereof
for the same aggregate price (on the basis of the price per share set forth in
paragraph 2 hereof) and had not been disposed of, such person or persons would
be holding, at the time of such exercise, as a result of such purchase and all
such stock dividends, stock splits, combinations of shares, mergers,
consolidations, reorganizations, or other changes in capitalization; provided,
however, that no fractional share shall be issued upon any such exercise, and
the aggregate price paid shall be appropriately reduced on account of any
fractional share not issued; and provided further, that in accordance with the
provisions of subsection (a) of Section 424 of the Code a new option may be
substituted for the Option granted hereunder or such Option may be assumed by an
employer corporation, or a parent or subsidiary of such corporation, in
connection with any transaction to which such subsection (a) is applicable.
Upon the dissolution or liquidation of the Corporation other than in connection
with a transaction to which such subsection (a) is applicable, the Option
granted hereunder shall terminate and become null and void, but the Optionee
shall have the right immediately prior to such dissolution or liquidation to
exercise the Option granted hereunder to the full extent not before exercised.
9. Method of Exercising Option. Subject to the terms and conditions of
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this Option Agreement, the Option may be exercised by written notice to the
Corporation at its principal business address attention of the Clerk. Such
notice shall state the election to exercise the Option and the number of shares
in respect of which it is being exercised, and shall be signed by the person or
persons so exercising the Option. At that time, this Option Agreement shall be
turned in to the Corporation for action by the Corporation to reduce the number
of shares to which it applies. Such notice shall be accompanied by payment in
cash or by check, or if approved by the Corporation, by shares of Common Stock
of the Corporation already owned by the Optionee valued at
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their fair market value, or by a combination of the foregoing. The fair market
value of the Corporation's shares for this purpose shall be determined by the
Board of Directors of the Corporation, and any such determination shall be
binding on all parties. If, however, the Common Stock of the Corporation is then
actively traded on an established over-the-counter market, the price shall be
the average mean between the bid and asked prices quoted in such market on the
trading day next preceding the exercise of the Option; and if such stock is
listed on any national exchange, the price shall be the average mean between the
high and low sales prices quoted on such exchange during such preceding trading
day. The certificate or certificates for the shares as to which the Option shall
have been so exercised shall be registered in the name of the person or persons
so exercising the Option, (or, if the Option shall be exercised by the Optionee
and if the Optionee shall so request in the notice exercising the Option, the
certificate or certificates shall be registered in the name of the Optionee and
another person jointly, with the right of survivorship) and shall be delivered
as provided above to or upon the written order of the person or persons
exercising the Option. In the event the Option shall be exercised by any person
or persons other than the Optionee (to the extent permitted under this Incentive
Stock Option Agreement), such notice shall be accompanied by appropriate proof
of the right of such person or persons to exercise the Option.
10. General. The Corporation shall at all times during the term of the
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Option reserve and keep available such number of shares of Common Stock as will
be sufficient to satisfy the requirements of this Incentive Stock Option
Agreement, shall pay all original issue taxes with respect to the issue of
shares pursuant hereto and all other fees and expenses necessarily incurred by
the Corporation in connection therewith, and will from time to time use its best
efforts to comply with all laws and regulations which, in the opinion of counsel
for the Corporation, shall be applicable thereto. The Corporation makes no
representation or warranty that this Option or shares issued pursuant hereto
qualify under any Federal or State law for any special tax treatment. The terms
of this Option Agreement shall be construed to conform with, and shall be
governed by the provisions of the Corporation's 1999 Stock Option Plan, as
amended, and in the event of any inconsistency between the provisions of this
Non-Qualified Stock Option Agreement and such Plan the provisions of such Plan
shall control.
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IN WITNESS WHEREOF, the Corporation has caused this Non-Qualified Stock
Option Agreement to be duly executed by its officer thereunto duly authorized,
and the Optionee has hereunto set his hand and seal all on the day and year
first above written.
CYBERSTORAGE SYSTEMS CORPORATION
By:_____________________________
Xxxx X. Xxxxxx, President
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[Name of Optionee]
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Address
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