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EXHIBIT 99.3
ATM PRODUCTS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
1. GRANT OF OPTION.
ATM PRODUCTS, INC., a Delaware corporation (the "Company"),
hereby grants to ______________ (the "Optionee"), an option, pursuant to the
Company's 1996 Stock Plan (the "Plan"), to purchase an aggregate of _____ shares
of Common Stock, no par value per share ("Common Stock"), of the Company at a
price of $_____ per share, purchasable as set forth in and subject to the terms
and conditions of this option and the Plan. The date of grant of this option is
hereinafter referred to as the "date of grant," and the date ending twelve
months thereafter as the "anniversary date."
2. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) Except as otherwise provided herein and subject to the
right of cumulation provided herein, this option may be exercised, prior
to ten years from the date of grant, as set forth below:
No shares prior to the anniversary date;
________ shares from and after the anniversary date;
The right of exercise provided herein shall be cumulative so that if the
option is not exercised in full at the time it is exercised it shall
remain exercisable, in whole or in part, with respect to all remaining
shares which were not previously purchased prior to the expiration or
termination of this option. This option may not be exercised at any time
after the tenth anniversary date.
(b) Subject to the conditions hereof, this option shall be
exercisable by the Optionee giving written notice of exercise to the
Company, specifying the number of shares to be purchased and the
purchase price to be paid therefor and accompanied by payment in
accordance with Section 3 hereof. Such exercise shall be effective upon
receipt by the Treasurer of the Company of the written notice together
with the required payment. The Optionee shall be entitled to purchase
less than the number of shares covered hereby; provided that no partial
exercise of this option shall be for less than 10 whole shares.
(c) If the Optionee dies before exercising all of his or
her unexercised options, this option shall be exercisable, by the
Optionee's personal representatives, heirs or legatees, to the same
extent that the Optionee could have exercised this option on the date of
his or her death. This option or any unexercised portion hereof shall
terminate unless so exercised prior to the earlier of the expiration of
six months from the date of such death or ten years and one month from
the date of its grant.
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3. PAYMENT OF PURCHASE PRICE.
(a) Payment of the purchase price for shares purchased
upon exercise of this option shall be made by delivery to the Company of
cash or check payable to the order of the Company in an amount equal to
the purchase price of such shares, or, if the Optionee elects and the
Company permits, by delivery of shares of Common Stock of the Company
having a fair market value equal in amount to the purchase price of such
shares.
(b) For the purposes hereof, the fair market value of any
share of the Company's Common Stock to be delivered to the Company in
exercise of this option shall be determined in good faith by the Board
of Directors of the Company, in accordance with the terms of the Plan.
(c) If the Optionee elects to exercise options by delivery
of shares of Common Stock of the Company, the certificate or
certificates representing the shares of Common Stock of the Company to
be delivered shall be duly executed in blank by the Optionee or shall be
accompanied by a stock power duly executed in blank suitable for
purposes of transferring such shares to the Company. Fractional shares
of Common Stock of the Company will not be accepted in payment of the
purchase price of shares acquired upon exercise of this option.
4. DELIVERY OF SHARES.
The Company shall, upon payment of the purchase price for the
number of shares purchased and paid for, make prompt delivery of such shares to
the Optionee; provided that if any law or regulation requires the Company to
take any action with respect to such shares before the issuance thereof, then
the date of delivery of such shares shall be extended for the period necessary
to complete such action. No shares shall be issued and delivered upon exercise
of any option unless and until, in the opinion of counsel for the Company, any
applicable registration requirements of the Securities Act of 1933, any
applicable listing requirements of any national securities exchange on which
stock of the same class is then listed, and any other requirements of law or of
any regulatory bodies having jurisdiction over such issuance and delivery, shall
have been fully complied with.
5. NON-TRANSFERABILITY OF OPTION.
Except as provided in Section 2(c) and 2(d) hereof, this option
is personal and no rights granted hereunder shall be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
nor shall any such rights be subject to execution, attachment or similar
process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise
dispose of this option or of such rights contrary to the provisions hereof, or
upon the levy of any attachment or similar process upon this option or such
rights, this option and such rights shall become null and void.
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6. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or this Agreement shall be
construed or deemed by any person under any circumstances to bind the Company or
any of its subsidiaries to continue the employment of the Optionee for the
period within which this option may be exercised. However, during the period of
the Optionee's employment, the Optionee shall render diligently and faithfully
the services which are assigned to the Optionee from time to time by the Board
of Directors or by the executive officers of the Company and its subsidiaries
and shall at no time take any action which directly or indirectly would be
inconsistent with the best interests of the Company or of its subsidiaries.
7. RIGHTS AS A STOCKHOLDER.
The Optionee shall have no rights as a stockholder with respect
to any shares which may be purchased by exercise of this option unless and until
a certificate or certificates representing such shares are duly issued and
delivered to the Optionee. Except as otherwise expressly provided in the Plan,
no adjustment shall be made for dividends or other rights for which the record
date is prior to the date such stock certificate is issued.
8. RECAPITALIZATION.
In the event that dividends are payable in shares of Common Stock
or in the event there are splits, sub-divisions or combinations of shares of
Common Stock subsequent to the date of grant, the number of shares subject to
this option shall be increased or decreased proportionately, as the case may be,
and the number of shares deliverable upon the exercise thereafter of this option
shall be increased or decreased proportionately, as the case may be, without
change in the aggregate purchase price.
9. REORGANIZATION.
In case the Company is merged or consolidated with another
corporation and the Company is not the surviving corporation, or in case the
property or stock of the Company is acquired by any other corporation, or in
case of a reorganization or liquidation of the Company, prior to the termination
or expiration of this option, the Optionee shall, with respect to this option or
any unexercised portion thereof, be entitled to the rights and benefits, and be
subject to the limitations, set forth in Section 10 of the Plan.
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10. WITHHOLDING TAXES.
Whenever shares are to be issued upon exercise of this option,
the Company shall have the right to require the Optionee to remit to the Company
an amount sufficient to satisfy any federal, state and local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares.
11. COMPANY'S RIGHTS OF FIRST REFUSAL.
All shares purchased upon exercise of this option shall be
subject to the following rights of first refusal until immediately prior to the
consummation of the first public offering by the Company of its Common Stock
pursuant to an offering registered under the Securities Act of 1933.
The Optionee, including his or her heirs, assigns, executors, or
administrators, or recipient of shares by other than a sale subject to this
right of first refusal and his or her heirs, assigns, executors, or
administrators (collectively, the "Seller"), desiring to sell any shares shall
first offer such shares to the Company in the following manner: the Seller shall
notify the President of the Company in writing of the Seller's desire to sell
the shares, which notice shall contain the price and terms at which the Seller
is willing to sell and the name of the proposed purchaser. All such offers must
require payment in cash, and must allow the Company at least forty-five (45)
days from the receipt of such notification in which to consummate the purchase.
The Company shall have thirty (30) days after receipt of such notification by
the President either to accept or to reject the offer. The Company shall have
the right to purchase all, but not less than all, of the offered shares on the
terms offered. Failure of the Company either to accept or to reject the offer in
writing within the 30-day period shall constitute a rejection of the offer. An
acceptance by the Company shall be timely given if mailed by registered mail
within the 30-day period to the most recent address of the record holder of the
shares in the stock records of the Company.
In the event the Company rejects the offer, the Seller may, at
any time during the period of sixty (60) days following such rejection, dispose
of the offered shares upon the terms and conditions set forth in the notice to
the President, but may not otherwise or thereafter do so without again complying
with the foregoing rights of first refusal. In the event the Company accepts the
offer, but fails to perform according to the terms of the offer, the Seller's
sole remedy shall be that the offered shares shall no longer be subject to the
foregoing rights of first refusal.
No shares shall be transferred on the books of the Company unless
the foregoing provisions have been complied with, but the Company, with the
approval of the Board of Directors of the Company, may in any particular
instance or instances waive these provisions with respect to any present or
future sale, provided such waiver is in writing.
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12. COMPANY'S REPURCHASE OPTION.
(a) If Optionee ceases to be employed by the Company or
one of its subsidiaries for any reason, the Company shall have the
right, at any time within seven (7) months after the date of Optionee's
death, in the event Optionee dies while an employee of Company or a
subsidiary of Company, or at any time within four (4) months after the
date Optionee ceases to be employed for any other reason, to repurchase
from Optionee or his personal representatives, as the case may be, all
or any part of the shares purchased by Optionee pursuant to this option
at the fair market value of such shares on the date of repurchase (the
"Repurchase Option").
(b) If the Common Stock is not publicly traded at the time
of repurchase under this Paragraph 12, "fair market value" shall be
deemed to be the fair value of the Common Stock as determined by the
Board of Directors, in good faith after taking into consideration all
factors which it deems appropriate, including, without limitation,
recent sale and offer prices of the Common Stock in private transactions
negotiated at arm's length. If, the Company's Common Stock is publicly
traded, "fair market value" shall be determined as of the last business
day for which the prices or quotes discussed in this sentence are
available prior to the date of repurchase (the "Determination Date") and
shall mean (i) the average (on the Determination Date) of the high and
low prices of the Common Stock on the principal national securities
exchange on which the Common Stock is traded, if such Common Stock is
then traded on a national securities exchange; (ii) the last reported
sale price (on the Determination Date) of the Common Stock on the NASDAQ
National Market List, if the Common Stock is not then traded on a
national securities exchange; or (iii) the closing bid price (or average
of bid prices) last quoted (on the Determination Date) by an established
quotation service for over-the-counter securities, if the Common Stock
is not reported on the NASDAQ National Market List.
(c) A Repurchase Option shall be exercised by written
notice signed by an officer of the Company. The purchase price shall be
payable, at the option of the Company, in cancellation of all or a
portion of any outstanding indebtedness of Optionee to the Company or in
cash (by check) or both.
(d) The Company may assign its rights under this
Paragraph 2(e).
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13. INVESTMENT REPRESENTATION, ETC.
(a) The Optionee represents that any shares purchased upon
exercise of this option shall be acquired by the Optionee for his or her
own account for investment and not with a view to, or for sale in
connection with, any distribution of such shares, nor with any present
intention of distributing or selling such shares. The Optionee further
represents that he or she has made detailed inquiry concerning the
Company, that the officers of the Company have made available to the
Optionee any and all written information which the Optionee has
requested, that the officers of the Company have answered to the
Optionee's satisfaction all inquiries made by the Optionee and that the
employee has such knowledge and experience in financial and business
matters that the Optionee is capable of evaluating the merits and risks
of an investment in the Company and able to bear the economic risk of
that investment. By making payment upon exercise of this option, the
Optionee shall be deemed to have reaffirmed, as of the date of such
payment, the representations made in this Section 13.
(b) Without limiting the Company's rights under Section 11
hereof, upon exercise of this option, the Company may, at its election,
require the Optionee to execute a stock restriction agreement,
restricting the Optionee from selling or transferring the shares so
acquired without first offering to sell such shares to the Company and
the other stockholders. Upon execution of such stock restriction
agreement by the Optionee, the Company shall have affixed to all stock
certificates representing shares of Common Stock issued to the Optionee
upon exercise of this option a legend evidencing such agreement.
(c) All stock certificates representing shares of Common
Stock issued to the Optionee upon exercise of this option shall, at the
election of the Company, have affixed thereto a legend substantially in
the following form:
"The shares of stock represented by this certificate (i) are
subject to the restrictions on transfer contained in a
Non-Qualified Stock Option Agreement dated , 19__, between
the Company and the holder of this certificate (a copy of which
is available without charge from the Company), and (ii) have not
been registered under the Securities Act of 1933 and may not be
transferred, sold or otherwise disposed of in the absence of an
effective registration statement with respect to the shares
evidenced by this certificate, filed and made effective under the
Securities Act of 1933, or an opinion of counsel satisfactory to
the Company to the effect that registration under such Act is not
required."
14. MISCELLANEOUS.
(a) Except as provided herein, this Agreement may not be
amended or otherwise modified unless evidenced in writing and signed by
the Company and the Optionee.
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(b) All notices under this Agreement shall be mailed or
delivered by hand to the parties at their respective addresses set forth
beneath their names below or at such other address as may be designated
in writing by either of the parties to one another.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
Date of Grant: ATM PRODUCTS, INC.
By:
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Title: President
Address: 000 X. Xxxxxx Xxxxxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof.
OPTIONEE
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Signature
Address:
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