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Exhibit 4.03
NONQUALIFIED STOCK OPTION AGREEMENT
UNDER THE 1997 STOCK INCENTIVE PLAN
QDB Solutions, Inc. (the "Company"), a Massachusetts corporation,
hereby grants, effective as of _____________ (the "Effective Date"), to
____________ (the "Optionee") the right and option (the "Option") to purchase up
to __________ shares of its Common Stock, $.0001 par value, at a price of
$______ per share (the "Exercise Price"), subject to the following terms and
conditions.
1. RELATIONSHIP TO PLAN. The Option is granted pursuant to the
Company's 1997 Stock Incentive Plan (the "Plan"), and is in all respects subject
to the terms and conditions of the Plan, a copy of which has been provided to
the Optionee (the receipt of which the Optionee hereby acknowledges).
Capitalized terms used and not otherwise defined in this Agreement are used as
defined in the Plan. The Optionee hereby accepts the Option subject to all the
terms and provisions of the Plan (including without limitation provisions
relating to expiration and termination of the Option and adjustment of the
number of shares subject to the Option and the exercise price therefor). The
Optionee further agrees that all decisions under and interpretations of the Plan
by the Company shall be final, binding, and conclusive upon the Optionee and his
or her successors, permitted assigns, heirs, and legal representatives.
2. VESTING. The Option shall vest and become exercisable only as
follows, provided, in each case, that the Optionee continues to be employed by
the Company or a Subsidiary (as defined in the Plan) of the Company on each
applicable vesting date:
Number (or Percentage) of Shares
Date for which Option Exercisable
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25%
25%
25%
25%
3. TERMINATION OF OPTION.
(a) The Option shall terminate on the earlier of (x) _____________,
2007, and (y) if the Optionee's employment with the Company or a Subsidiary
terminates for any reason, the applicable date determined from the following
table:
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QDB Solutions, Inc.
Nonqualified Stock Option Agreement
Reason for Termination
of Employment Option Termination Date(1)
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(i) death of employee Twelve months thereafter
(ii) total and permanent Twelve months thereafter
disability of employee
(as defined in Section
22(e)(3) of the Internal
Revenue Code of 1986,
as amended)
(iii) termination of employment Three months thereafter
for any other reason
Military or sick leave shall not be deemed a termination of employment provided
that it does not exceed the longer of 90 days or the period during which the
absent employee's reemployment rights are guaranteed by statute or by contract.
(b) If this Option has not earlier terminated pursuant to paragraph (a)
of this Section3, upon the termination of the Optionee's employment with the
Company or a Subsidiary, (i) the Option, with respect to any shares of Common
Stock issuable pursuant to the Option which have not become vested pursuant to
Section2 as of the date of such termination of employment, shall irrevocably
expire and the Optionee shall not have any right to purchase such shares of
Common Stock issuable pursuant to the Option, (ii) the Company shall have the
right to terminate the Option with respect to any shares of Common Stock which
have become vested pursuant to Section2 but which have not been purchased by the
Optionee by paying to the Optionee an amount equal to the Fair Market Value of
such shares as of the date of the termination of employment minus the Exercise
Price of such shares, and (iii) the Company shall have the right to purchase
from the Optionee all of the shares of Common Stock previously issued pursuant
to the Option at a price equal to the Fair Market Value as of the date of
repurchase of such shares.
4. "LOCK-UP" AGREEMENT. The Optionee agrees that upon the Company's
request at any time, whether before or after the exercise of the Option, the
Optionee shall enter into an agreement pursuant to which, if the Company
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(1) These are the maximum post-termination exercise periods allowable for
incentive stock option treatment under applicable federal income tax laws. They
do not apply to Nonqualified Stock Options, and are shown here only for purposes
of comparison with the Company's (new) standard form of incentive stock option
agreement. Nonqualified Stock Options may be made to terminate before or after
the illustrative dates shown.
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deems it necessary or desirable to make any public offering of shares of Common
Stock, then without the prior written consent of the Company or the managing
underwriter, if any, of any such offering, the Optionee shall not sell, make any
short sale of, loan, grant any option for the purchase of, pledge, or otherwise
encumber or otherwise dispose of any shares of Common Stock issued or issuable
pursuant to the Option, during such period (not to exceed 210 days) commencing
on the effective date of the registration statement relating to such offering as
the Company may request.
5. METHODS OF EXERCISE.
In the event that the Optionee's employment with the Company or a
Subsidiary has not been terminated and except as contained in this Section5 or
as may otherwise be agreed by the Optionee and the Company, the Option shall be
exercisable only by a written notice in form and substance acceptable to the
Company (the "Election Notice"), specifying the number of shares to be purchased
and accompanied by payment in cash of the aggregate purchase price for the
shares for which the Option is being exercised; provided, that the Optionee
shall be entitled to pay the Exercise Price for the shares of Common Stock for
which the Option is being exercised by surrendering a number of such shares
having a Fair Market Value equal to the Exercise Price required to be paid.
Thereupon, the Company shall issue to the Optionee such number of fully paid and
nonassessable shares of Common Stock as is computed using the following formula:
X = Y (A-B)
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A
Where X = the number of shares of Common Stock to be issued to the Optionee
pursuant to this Section 5;
Y = the number of shares of Common Stock issuable under this Option;
A = the Fair Market Value for the Common Stock as of the date of the
exercise; and
B = the Exercise Price in effect under this Option at the time the
exercise is made pursuant to this Section 5.
6. CHARACTERIZATION OF OPTION FOR TAX PURPOSES. The Option is intended
not to qualify as an "incentive stock option" under the Internal Revenue Code of
1986, as amended, and shall be subject to different tax treatment than that
accorded incentive stock options (including the possibility of income tax
withholding in accordance with the Plan).
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QDB Solutions, Inc.
Nonqualified Stock Option Agreement
7. WITHHOLDING. The Optionee agrees to remit to the Company an amount
sufficient to satisfy any federal, state, local or other withholding tax
requirements (whether so required to secure for the Company an otherwise
available tax deduction or otherwise) if and to the extent required by law prior
to the delivery of any certificate or certificates representing shares of Common
Stock to be issued upon exercise of the Option.
8. COMPLIANCE WITH LAWS. The obligations of the Company to sell and
deliver Shares upon exercise of the Option are subject to all applicable laws,
rules, and regulations, including all applicable federal and state securities
laws, and the obtaining of all such approvals by government agencies as may be
deemed necessary or appropriate by the Board or the relevant committee of the
Board. If so required by the Board or such committee, no shares shall be
delivered upon the exercise of the Option until the Optionee has given the
Company a satisfactory written statement that he is purchasing such shares for
investment, and not with a view to the sale or distribution of any such shares,
and with respect to such other matters as the Board may deem advisable in order
to assure compliance with applicable securities laws. All shares issued upon
exercise of the Option shall bear appropriate restrictive legends.
9. GENERAL. The Optionee may not transfer, assign, or encumber any of
his or her rights under this Agreement without the prior written consent of the
Company, and any attempt to do so shall be void. This Agreement shall be
governed by and interpreted and construed in accordance with the internal laws
of the Commonwealth of Massachusetts (without reference to principles of
conflicts or choice of law). The captions of the sections of this Agreement are
for reference only and shall not affect the interpretation or construction of
this Agreement. This Agreement shall bind and inure to the benefit of the
parties and their respective successors, permitted assigns, heirs, devisees, and
legal representatives.
IN WITNESS WHEREOF, the Company and the Optionee have executed and
delivered this Agreement as an agreement under seal as of the Effective Date.
QDB SOLUTIONS, INC.
By:
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Name: Xxxxxxx Xxxxxxx
Title: President
Optionee
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