EXHIBIT 4.4
UNIFI COMMUNICATIONS, INC.
1993 Incentive Stock Option Agreement
-------------------------------------
This Option Agreement, dated Date, is between UNIFI COMMUNICATIONS, INC., a
Delaware corporation (the "Company"), and Name (the "Optionee").
------- --------
-----------------------------------------------------------
Option Summary
--------------
The following summary of the terms of this Option
is qualified in its entirety by the detailed
provisions that follow the summary.
-----------------------------------------------------------
Option Shares (Shares)
-----------------------------------------------------------
Price per Share (Price)
-----------------------------------------------------------
Expiration Date (TerminationDate), subject to
earlier termination upon
termination of employment as
set forth in Section 4 below
-----------------------------------------------------------
Vesting Provisions See Section 5(b) below
-----------------------------------------------------------
1. Option Shares. Subject to the terms and conditions set forth herein and
-------------
in the Amended and Restated 1993 Stock Option Plan of the Company (the "Plan"),
----
the Company grants to the Optionee, with effect on GrantDate, (the "Grant
-----
Date"), an Option (the "Option") to purchase from the Company, on the terms set
---- ------
forth in the form of Stock Purchase Agreement attached hereto as Exhibit A, all
---------
or any part of a total of Shares shares (the "Option Shares") of the Company's
-------------
Common Stock, par value $0.01 per share (the "Common Stock").
------------
2. Price. The price to be paid for the Option Shares shall be (Price) per
-----
share.
3. Character of Option. This Option is to be treated as an "incentive stock
-------------------
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
4. Termination of Option. The Option shall terminate on the earlier of (a)
---------------------
(TerminationDate) and (b) the Optionee's extension date, determined from the
following table:
Reason for Termination Extension Date
---------------------- --------------
physical or mental disability 6 months after termination
death 6 months after death
other termination 1 month after termination
Military or sick leave shall not be deemed a break in continuous employment
provided that it does not exceed the longer of 90 days or the period during
which the absent employee's re-employment rights are guaranteed by statute or by
contract.
5. Exercise of Option.
------------------
(a) The Optionee shall be permitted to exercise this Option
and purchase Option shares only to the extent the Option Shares are
vested.
(b) (Vesting)
(c) Notwithstanding paragraph (b) above, the Option Shares
shall become 100% vested in the event of (and immediately before) any
consolidation or merger of the Company with or into another company in
a transaction in which holders of the capital stock of the Company in
their capacity as such hold less than 50% of the capital stock of the
company surviving the transaction.
(d) If the Optionee's employment, consulting, or advisory
relationship terminates before the Option is fully exercised, the
Option may thereafter be exercised, to the extent (but only to the
extent) exercisable at the time of termination, until the Option
terminates pursuant to Section 4.
(e) Exercise of the option may be effected by the Optionee
giving written notice, in the manner provided in Section 11,
specifying the number of shares with respect to which the Option is
then being exercised. The notice shall be accompanied by payment in
the form of cash or certified or bank check payable to the order of
the Company in an amount
equal to the option price of the shares to be purchased plus any
required withholding tax (as determined under the Plan); provided,
however, that after the date that any shares of Common Stock have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), for sale to the public pursuant to an effective
registration statement filed with the Securities and Exchange
Commission, such payment may be made, at the election of the Optionee:
(i) in cash or certified or bank check as provided above, (ii) in the
form of Common Stock owned by the Optionee (based on the fair market
value of the Common Stock on the day the Option is exercised,
determined as provided in the Plan) evidenced by negotiable stock
certificates registered in the sole name of the Optionee or the names
of the Optionee and spouse, or (iii) in any combination of the
consideration described in (i) and (ii) above. Receipt by the Company
of such notice and payment shall constitute the exercise of the
Option. Within 30 days thereafter, the Company shall deliver or cause
to be delivered to the Optionee a certificate or certificates for the
number of shares then being purchased by him or her. If any applicable
regulation of the Securities and Exchange Commission or other public
regulatory authority shall require the Company or the Optionee to
register or qualify under the Securities Act, any similar federal
statute then in force or any state law regulating the sale of
securities, any Option Shares with respect to which notice of intent
to exercise shall have been delivered to the Company or to take any
other action in connection with such shares, the delivery of the
certificate or certificates for such shares shall be postponed until
completion of the necessary action, which the Company shall take in
good faith and without any delay. All such action shall be taken by
the Company at its own expense.
6. Restriction Against Transfer of Option. During the lifetime of the
--------------------------------------
Optionee, the Option may be exercised only by the Optionee. Except by will or by
the laws of descent and distribution, the Option and all rights granted
hereunder may not be transferred, assigned, pledged, or hypothecated (whether by
operation of law or otherwise) and shall not be subject to execution,
attachment, or similar process.
7. Capital Changes. In the event of any stock dividend payable in
---------------
Stock or any split-up or contraction in the number of shares of the Stock
occurring after the date of this Agreement and prior to the exercise in full of
the Option, the number of remaining shares subject to this Agreement and the
price to be paid for each such share shall be proportionately adjusted. In case
of any reclassification or other change of outstanding shares of the Stock,
shares of Stock or other securities shall be delivered equivalent in kind and
value to those shares an Optionee would have received if the Option had been
exercised immediately prior to such reclassification or other change and had
continued to hold the Option Shares (together with all other shares, stock and
securities thereafter issued in respect thereof) to the time of the exercise of
the Option. No fraction of a share shall be purchasable or deliverable upon
exercise, but in the event any adjustment hereunder of the number of shares
covered by the Option shall cause such number to include a fraction of a share,
such number of shares shall be adjusted to the nearest smaller whole number of
shares. Without limiting the provisions of Section 5(c), in case of
any consolidation or merger of the Company with or into another
company, or any sale or conveyance to another person of all or
substantially all of the property of the Company, the Optionee shall,
upon exercise of the Option in full or in part, receive shares of
stock, securities, or other property equivalent in kind or value to
what the Optionee would have received if the Optionee had exercised
the Option to such extent immediately prior to such consolidation,
merger, sale, or conveyance and had continued to hold the Option
Shares (together with all other shares, stock, and securities issued
in respect thereof) to the time of the exercise of the Option. Upon
the dissolution or liquidation of the Company, the Option shall
terminate, but the Optionee (if at the time the Option has not
terminated under Section 4) shall have the right, immediately prior to
such dissolution or liquidation, to exercise the Option to the extent
not theretofore exercised.
8. Reservation of Shares. The Company shall at all times
---------------------
during the term of this agreement reserve and keep available such
number of shares of the Common Stock as will be sufficient to satisfy
the requirements of this agreement and shall pay all fees and expenses
necessarily incurred by the Company in connection with this agreement
and the issuance of Option Shares.
9. Limitation of Rights in Option Shares. The Optionee shall
-------------------------------------
not be deemed for any purpose to be a stockholder of the Company with
respect to any of the Option Shares except to the extent that the
Option shall have been exercised with respect thereto and in addition
thereto a stock certificate shall have been issued therefor and
delivered to the Optionee.
10. Limitation of Rights. The Option confers upon the
--------------------
Optionee no right to continue as an employee of, or consultant or
advisor to, the Company and its subsidiaries and shall not interfere
in any way with the right of the Company and its subsidiaries to
terminate the employment or consulting or advisory relationship of the
Optionee at any time or to increase or decrease the compensation of
the Optionee from the rate in existence at the time of the grant of
the Option.
11. Communication. Any communication or notice required or
-------------
permitted to be given under this agreement shall be in writing and
mailed by registered or certified mail or delivered in hand, if to the
Company, to 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx,
00000, and, if to the Optionee, to the address set forth below or such
other address, in each case, as the addressee shall last have
furnished by notice to the communicating party.
12. Purchase for Investment.
-----------------------
(a) The Optionee represents to the Company that
any of the Option Shares at any time purchased upon the
exercise of any portion of the Option will be acquired for
the purpose of investment and not with a view to, or for
sale in connection with, any distribution thereof except to
the extent that the Option Shares purchased by the Optionee
may be sold under a valid registration statement filed with
the Securities and Exchange Commission pursuant to the
Securities Act.
(b) Prior to the delivery of any Option Shares
upon the exercise of any portion of the Option, the Company
may require that there be delivered to it a representation
in writing, in substance and form satisfactory to counsel
for the Company and signed by the Optionee, that such shares
are being acquired in good faith for investment and not with
a view to distribution, except to the extent that the Option
Shares purchased by him may be sold under a valid
registration statement filed with the Securities and
Exchange Commission pursuant to the Securities Act, and that
the Optionee will not make or solicit any offers or
transfers of any of the Option Shares in violation of the
Securities Act, or any similar federal statute then in
force, and regulations of the Securities and Exchange
Commission thereunder.
(c) Any such representation shall include a
statement by the Optionee that, in making such
representation: (i) he or she is aware that in the view of
the Securities and Exchange Commission the statutory basis
for exemption from registration of the Option Shares under
the Securities Act would not be present if such
representation meant merely that his present intention is to
hold the Option Shares purchased by him for any fixed period
after the date of the delivery of such shares to him in
order to be entitled to treat any gain on the sale thereof
as capital gain under the Internal Revenue Code, or for a
deferred sale, or for a market rise expected within a fixed
period, or for sale if such rise does not occur, or for any
fixed period; (ii) he or she means that he or she does not
intend to dispose of all or any part of the Option Shares,
except as aforesaid, unless and until there shall have been
a sufficient change in the pertinent circumstances, not now
in contemplation, so that, in the opinion of counsel for the
Company, such sale or disposition would not evidence a lack
of a true investment intent on his part; and (iii) he or she
understands that any routine sales of the Option Shares made
in reliance upon Securities and Exchange Commission Rule 144
can be made only in limited amounts in accordance with the
terms and conditions of that Rule, and that the Company does
not intend to supply the Optionee with any information
necessary to enable such Optionee to make routine sales of
the Optioned Shares under Rule 144.
(d) The Company may place a legend on any
certificate or certificates issued pursuant hereto that the
transfer of such certificate or certificates is restricted
in accordance with the terms of this Section 12 and may make
a "stop transfer" notation on the appropriate books of the
Company.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
UNIFI COMMUNICATIONS, INC.
By:
------------------------------------
UNIFI Communications, Inc. Officer
---------------------------------------
Name, Optionee
Number and Street:
---------------------
City, State, Zip Code:
-----------------
