Exhibit 4.4
AGREEMENT made as of November 22, 2005 between GENERAL DATACOMM
INDUSTRIES, INC., a Delaware corporation having offices at 0 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 06770("Grantor") and Xxxxxx X. Xxxxxx ("Optionee").
WITNESSETH:
WHEREAS, Grantor is desirous of inducing Optionee to continue as a
director of the Grantor,
NOW THEREFORE, in consideration of the promise of the Optionee to remain
as a director of the Grantor at the pleasure of the stockholders of Grantor, and
for other good and valuable consideration, the Grantor hereby grants the
Optionee Stock Options to purchase common stock of the Grantor on the following
terms and conditions:
l. OPTION. The Grantor hereby grants to the Optionee the option to purchase up
to 551,121 shares of common stock, par value .01 cent per share, of the Grantor
to be issued upon the exercise hereof, fully paid and non-assessable, during the
following periods.
(a) No shares may be purchased prior to the expiration of twelve (12) months
from the date of this option (unless otherwise authorized by the Stock Option
Committee of the Board of Directors) or after ten (10) years from the date
thereof.
(b) All or any part of 110,224 shares may be purchased during the period
commencing November 22, 2006 and terminating at 5:00 p.m. on November 21, 2015.
(c) All or any part of 110,224 shares may be purchased during the period
commencing November 22, 2007 and terminating at 5:00 p.m. on November 21, 2015
(d) All or any part of 110,224 shares may be purchased during the period
commencing November 22, 2008 and terminating at 5:00 p.m. on November 21, 2015.
(e) All or any part of 110,224 shares may be purchased during the period
commencing November 22, 2009 and terminating at 5:00 p.m. on November 21, 2015.
(f) All or any part of 110,225 shares may be purchased during the period
commencing November 22, 2010 and terminating at 5:00 p.m. on November 21, 2015.
2. PURCHASE PRICE. The purchase price shall be fifty cents ($.50) per share,
payable in cash or by check (subject to collection) to the Grantor. The Grantor
shall pay all original issue or transfer taxes on the exercise of this option
and all other fees and expenses necessarily incurred by the Grantor in
connection therewith.
3. EXERCISE OF OPTION. The Optionee shall notify the Grantor by certified or
registered mail addressed to its principal offices as to the number of shares
which Optionee desires to purchase under the options herein granted, which
notice shall be accompanied by payment by cash or check of the option price
therefore as specified in paragraph 2 above. As soon as possible thereafter the
Grantor shall, at its principal office, tender to Optionee certificates issued
in the Optionee's name evidencing the shares purchased by the Optionee.
4. OPTION CONDITIONED ON CONTINUANCE AS A DIRECTOR.
(a) Each of the aforesaid options shall terminate and be void if the Optionee is
not a director of the Grantor on the date in which such option is first
exercisable.
(b) The Optionee shall have the right to purchase the shares as to which the
options shall become exercisable only while Optionee is a director of the
Grantor, except the options may be exercised to the extent that they are
exercisable upon the effective date the Optionee ceases to be a director, at any
time within three (3) months after the date of termination but in no event after
the expiration of the last option herein contained.
5. DIVISIBILITY AND NON-ASSIGNABILITY OF THE OPTIONS.
(a) The Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of shares included therein.
(b) Except as provided in the Grantor's 2005 Stock and Bonus Plan for options
granted under such Plan as if this Option was granted thereunder, the Optionee
may not give, grant, sell, exchange, transfer legal title, pledge, assign or
otherwise encumber or dispose of the options herein granted or any interest
therein, otherwise than by will or the laws of descent and distribution, and
these options, or any of them, shall be exercisable during Optionee's lifetime
only by the Optionee.
(c) In the event of the Optionee's death (i) while a director of the Grantor or
(ii) within three (3) months after the effective date that the Optionee ceases
to be a director, or (iii) after the effective date that the Optionee ceases to
be a director by reason of permanent and total disability, then (x) under (i),
(ii) and (iii) above, all of the unexercised outstanding options granted under
this Agreement shall automatically be accelerated and become fully vested and
exercisable and (y) Optionee's estate, or any person who acquired the right to
exercise such option by bequest or inheritance or by reason of the death of the
Optionee, shall have the right at any time, but not after November 21, 2015, to
exercise this option in full notwithstanding the vesting schedule in paragraph
1.
(d) In the event Optionee ceases to be a director by reason of the Optionee's
permanent and total disability while a director of the Grantor, all of the
unexercised outstanding options granted under this Agreement shall automatically
be accelerated and become fully vested and exercisable and the Optionee shall
have the right at any time after Optionee ceases to be a director, but not after
November 21, 2015, to exercise this option in full notwithstanding the vesting
schedule in paragraph 1.
For this purpose, the Optionee shall be considered permanently and totally
disabled if Optionee is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months. The Optionee shall not be
considered permanently and totally disabled unless Optionee furnishes proof of
the existence thereof in such form and manner and at such times as the Stock
Option Committee of the Board of Directors administering the Plan may require.
The Optionee agrees that said committee's determination as to whether the
Optionee is permanently and totally disabled shall be final and absolute, and
not subject to question by the Optionee, a representative of the Optionee, or
the Grantor.
6. STOCK AS INVESTMENT. By accepting this option the Optionee agrees for the
Optionee, Optionee's heirs and legatees that, unless the shares have been
registered under the Securities Act of 1933, as amended, any and all shares
purchased hereunder shall be acquired for investment and not for distribution,
and upon the issuance of any or all of the shares subject to the option granted
hereunder, the Optionee, or Optionee's heirs or legatees receiving such shares,
shall deliver to the Grantor a representation in writing that such shares are
being acquired in good faith for investment and not for distribution. Grantor
may place a "stop transfer" order with respect to such shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate
unless such shares are registered.
7. RESTRICTION ON ISSUANCE OF SHARES. The Grantor shall not be required to issue
or deliver any certificate for shares of its capital stock purchased upon the
exercise of this option:
(a) prior to the admission of such shares to listing on any stock market or
exchange on which the stock may at that time be listed and, in the event of the
exercise of this option with respect to any shares of stock subject hereto, the
Grantor shall make prompt application for such listing;
(b) unless the prior approval of such sale or issuance has been obtained from
any state regulatory body having jurisdiction; or
(c) unless the shares with respect to which the option is being exercised have
been registered under the Securities Act of 1933, as amended, or are exempt from
registration.
8. ADJUSTMENT OF SHARES.
(a) If additional shares of common stock are issued by the Grantor pursuant to a
stock split or stock dividend or distribution in excess of 5% in the aggregate
in any one fiscal year of the Grantor, the number of shares of common stock then
covered by each option granted herein shall be increased proportionately with no
increase in the total purchase price of the shares then so covered. In the event
that the shares of common stock of the Grantor are reduced at any time by a
combination of shares, the number of shares of common stock then covered by each
option granted herein shall be reduced proportionately with no reduction in the
total price of the shares then so covered. If the Grantor shall be reorganized,
consolidated or merged with another corporation, or if all or substantially all
of the assets of the Grantor shall be sold or exchanged, the Optionee shall, at
the time of issuance of the stock under such a corporate event, be entitled to
receive upon the exercise of his option, the same number and kind of shares of
stock or the same amount of property, cash or securities as he would have been
entitled to receive upon the happening of any such corporate event as if he had
been, immediately prior to such event, the holder of the number of shares
covered by this option. No option adjustment shall be made for stock dividends,
stock distributions or stock splits which are not in excess of 5% in any one
fiscal year in the aggregate (even though the cumulated total of such stock
dividends, distributions or splits over the life of an option may be in excess
of 5% in the aggregate), cash dividends or the issuance to stockholders of the
Company of rights to subscribe for additional common stock or other securities.
(b) Any adjustment in the number of shares shall apply proportionately to only
the unexercised portion of an option granted hereunder. If fractions of a share
would result from any such adjustment, the adjustment shall be revised to the
next higher whole number of shares.
9. NO RIGHTS IN OPTION STOCK. Optionee shall have no rights as a stockholder in
respect of shares as to which the option shall not have been exercised and
payment made as herein provided and shall have no rights with respect to such
shares not herein provided.
10. NO CONTRACT TO BE A DIRECTOR. Optionee further represents, covenants and
warrants this Agreement does not constitute a contract to be a director of the
Grantor or any of its subsidiaries or affiliates, nor does it give the Optionee
any right to be a director of the Grantor, and Optionee's continuance as a
director is terminable as provided in the Grantor's Certificate of Incorporation
and by-laws.
11. BINDING EFFECT. Except as herein otherwise expressly provided, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their legal representatives and assigns.
12. JURISDICTION OF DISPUTES. The appropriate Federal or State Courts of or
located in the State in which the Grantor has its principal executive offices
shall have exclusive jurisdiction of all disputes arising under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
GENERAL DATACOMM INDUSTRIES, INC. (Grantor)
By:
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Xxxxxxx X. Xxxxx, Vice President
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First/Middle/Last Name (Optionee)
Xxxxxx X. Xxxxxx
