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EXHIBIT 99.5
SUMMA FOUR, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Summa Four, Inc., a Delaware Corporation (the
"Company"), hereby grants to _______________ (the "Optionee") an option,
pursuant to the Company's 1993 Stock Incentive Plan (the "Plan"), to purchase an
aggregate of __________ shares of Common Stock ("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. Except where the context
otherwise requires, the term "Company" shall include the parent and all present
and future subsidiaries of the Company as defined in Sections 424(e) and 424(f)
of the Internal Revenue Code of 1986, as amended or replaced from time to time
(the "Code").
2. NON-STATUTORY STOCK OPTION. This option is not intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
3. EXERCISE OF OPTION AND PROVISIONS FOR TERMINATION.
(a) Vesting Schedule. Except as otherwise provided in this Agreement, this
option may be exercised prior to the tenth anniversary of the date of grant
(hereinafter the "Expiration Date") in installments as to not more than the
number of shares set forth in the table below during the respective installment
periods set forth in the table below.
Number of
Shares as to which
Exercise Period Option is Exercisable
The right of exercise shall be cumulative so that if the option is not exercised
to the maximum extent permissible, it shall be execrable, in whole or in part,
with respect to all shares not so purchased at any time prior to the Expiration
Date or the earlier termination of this option. This option may not be exercised
at any time on or after the Expiration Date, except as otherwise provided in
Section 3 (e) below.
(b) Exercise Procedure. Subject to the conditions set forth in this
Agreement, this option shall be exercised by the Optionee's delivery of written
notice of exercise to the Treasurer of the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 4. Such exercise shall
be effective upon receipt by the Treasurer of the company of such written notice
together with the required payment. The Optionee may purchase less than the
number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(c) Continuous Relationship with the Company Required. Except as otherwise
provided in this Section 3, this option may not be exercised unless the
Optionee, at the time he or she exercises this option, is, and has been at all
times since the date of grant of this option, an
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employee, officer, or director of, or consultant or advisor to, the Company (an
"eligible Optionee").
(d) Termination of Relationship with the Company. If the Optionee ceases to
be an Eligible Optionee for any reason, then, except as provided in paragraphs
(e) and (f) below, the right to exercise this option shall terminate twelve (12)
months after such cessation (but in no event after the expiration date),
provided that this option shall be exercisable only to the extent that the
Optionee was entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if the Optionee, prior to the Expiration date,
materially violates the non-competition or confidentiality provisions of any
employment contract, confidentiality or nondisclosure agreement or other
agreement between the Optionee and the Company, the right to exercise this
option shall terminate immediately upon written notice to the Optionee from the
Company describing such violation.
(e) Exercise Period Upon Death or Disability. If the Optionee dies or become
disable (within the meaning of Section 22(e) (3) of the Code) prior to the
Expiration Date while he or she is an Eligible Optionee, or if the Optionee dies
within three months after the Optionee ceases to be a Eligible Optionee (other
than as a result of a termination of such relationship by the company for
"cause" as specified in paragraph (f) below), this option shall be exercisable,
within the period of twelve months following the date of death or disability of
the Optionee (whether or not such exercise occurs before the Expiration Date),
by the Optionee or by the person to whom this option is transferred by will or
the laws of descent and distribution, provided that this option shall be
exercisable only to the extent that this option was exercisable by the Optionee
on the date of his or her death or disability. Except as otherwise indicated by
the context, the term "Optionee", as used in this option, shall be deemed to
include the estate of the Optionee or any person who acquires the right to
exercise this option by bequest or inheritance or otherwise by reason of the
death of the Optionee.
(f) Discharge for Cause. If the Optionee, prior to the Expiration date,
ceases his or her relationship with the Company because such relationship is
terminated by the Company for cause" (as defined below), the right to exercise
this option shall terminate immediately upon such cessation. "cause" shall mean
willful misconduct by the Optionee or willful failure to perform his or her
responsibilities in the best interests of the company (including, without
limitation, breach by the Optionee of any procession of any employment,
consulting, advisory, nondisclosure, non-competition or other similar agreement
between the Optionee and the Company), as determined by the company, which
determination shall be conclusive.
4. PAYMENT OF PURCHASE PRICE.
(a) Method of Payment. Payment of the purchase price for shares purchased
upon exercise of this option shall be made (I) by delivery to the Company of
cash or a check to the order of the Company in an amount equal to the purchase
price of such shares, (ii) subject to the consent of the Company, by delivery to
the Company of shares of Common Stock of the Company then owned by the Optionee
having a fair market value equal in amount to the purchase price of such shares,
(iii) by any other means which the Board of Directors determines are consistent
with the purpose of the Plan and with applicable laws and regulations
(including, without limitation, the provisions of Rule 16b-3 under the
Securities Exchange Act of 1934 and Regulation T
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promulgated by the Federal Reserve Board), or (iv) by any combination of such
methods of payment.
(b) Valuation of Shares or Other Non-Cash Consideration tendered in Payment
of Purchase Price. For the purposes hereof, the fair market value of any share
of the company's common Stock or other non-cash consideration which may be
delivered to the company in exercise of this option shall be determined in good
faith by the Board of Directors of the Company.
(c) Delivery of Shares Tendered in Payment of Purchase Price. If the
Optionee exercises this option 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.
(d) Restrictions on Use of Option Stock. Notwithstanding the foregoing, no
share of Common Stock of the Company may be tendered in payment of the purchase
price of shares purchased upon exercise of this option if the shares to be so
tendered were acquired within twelve (12) months before the date of such tender,
through the exercise of an option granted under the Plan or any other stock
option or restricted stock plan of the Company.
5. DELIVERY OF SHARES; COMPLIANCE WITH SECURITIES LAWS, ETC.
(a) General. The Company shall, upon payment of the option 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 to issuance thereof, then the
date of delivery of such shares shall be extended for the period necessary to
complete such action.
(b) Listing, Qualification, Etc. This option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject hereto upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
hereunder, this option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or obtained on
terms acceptable to the Board of Directors. Nothing herein shall be deemed to
require the Company to apply for, effect or obtain such listing, registration,
qualification or disclosure, or to satisfy such other condition.
6. NONTRANSFERABILITY OF OPTION. This option is personal and no rights
granted hereunder may 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, except that this option may
be transferred (I) by will or the laws of descent and distribution or (ii)
pursuant to a qualified domestic relations order as defined in Section 414(p) of
the Code. Upon
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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, at the election of the Company, become null and
void.
7. NO SPECIAL EMPLOYMENT OR SIMILAR RIGHTS. Nothing contained in the Plan
or this option shall be construed or deemed by any person under any
circumstances to bind the Company to continue the employment or other
relationship of the Optionee with the Company for the period within which this
option may be exercised.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option (including, without limitation, any rights to receive dividends or
non-cash distributions with respect to such shares) unless and until a
Certificate representing such shares is duly issued and delivered to the
Optionee. 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.
9. ADJUSTMENT PROVISIONS.
(a) General. If, through or as a result of any merger, consolidation, sale
of all or substantially all of the assets of Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (I) the outstanding shares of Common Stock
are increased or decreased or are exchanged for a different number or kind of
shares or other securities of the Company, or (ii) additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of common Stock or other securities, the
Optionee shall, with respect to this option or any unexercised portion hereof,
be entitled to the rights and benefits, and be subject to the limitations, set
forth in Section 15(a) of the Plan.
(b) Board Authority to Make Adjustments. Any adjustments under this Section
9 will be made by the board of directors, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive. No fractional shares will be issued pursuant to this option on
account of any such adjustments.
10. CHANGE IN CONTROL. In the event of a Change in Control as defined in
Section 10 of the Plan, prior to the Expiration Date or termination of this
option, the Optionee shall, with respect to this option or any unexercised
portion hereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Section 10 of the Plan.
11. WITHHOLDING TAXES. The Company's obligation to deliver shares upon the
exercise of this option shall be subject to the Optionee's satisfaction of all
applicable federal, state and local income and employment tax withholding
requirements.
12. MISCELLANEOUS.
(a) Except as provided herein, this option 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 option 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 option shall be governed by and construed in accordance with the
laws of the State of New Hampshire.
SUMMA FOUR, INC.
Dated By:
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Title:
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Address:
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OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions hereof. The undersigned hereby acknowledges receipt of a copy of the
Company's 1993 Stock Incentive Plan.
Option # By:
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Address:
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