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EXHIBIT 10.10
AWARD AGREEMENT
(Non-Qualified Stock Option)
This Award Agreement is made this day of __________ 199__, between
Access Beyond, Inc., a Delaware corporation (hereinafter called the "Company')
and ________________________, an employee, consultant, or advisor of, or a third
party provider of services to the Company (hereinafter called the "Optionee").
WHEREAS, the Company has heretofore adopted the 1996 Long-Term
Incentive Plan of Access Beyond, Inc. (the "Plan"); and
WHEREAS, it is a requirement of the Plan that an award agreement be
executed to evidence the Non-Qualified Stock Option granted to the Optionee;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties hereto have agreed, and do hereby agree, as follows:
1. Grant of Award. The Company hereby grants to the Optionee the right
and option (hereinafter called the "Option") to purchase all or any part of an
aggregate _______________ (__________) shares of the Common Stock, $.01 par
value, of the Company ("Shares") (such number being subject to adjustment as set
forth herein and the Plan) on the terms and conditions set forth herein and in
the Plan.
2. Type of Option. The Option granted under this Award Agreement is a
Non-Qualified Stock Option and shall not be treated by the Company or the
Optionee as an Incentive Stock Option for federal income tax purposes.
3. Purchase Price. The option price of the shares covered by the Option
is $_____ per share.
4. Term of Option.
(a) The term of the Option (the "Term") shall be for a period
of ten (10) years from the date of this Award Agreement ("Date of Grant"),
subject to earlier termination as hereinafter provided.
(b) Prior to its expiration or termination the Option may be
exercised within the following time limitations:
(i) After one year from the Date of Grant, it may be
exercised as to not more than thirty percent (30%) of the Shares originally
subject to the Option.
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(ii) After two years from the Date of Grant, it may
be exercised as to not more than sixty percent (60%) of the Shares originally
subject to the Option.
(iii) After three years from the Date of Grant, it
may be exercised as to any part or all of the Shares originally subject to the
Option.
5. Execution of Agreements with Company. The grant of the Option under
the Plan is conditioned upon the Optionee executing and delivering to the
Company (a) the Non-Interference Agreement, attached hereto as ANNEX A (the
"Non-Interference Agreement") and (b) the Assignment of Inventions and
Non-Disclosure Agreement, attached hereto as ANNEX B (the "Confidentiality
Agreement"). In addition, the Optionee shall not be permitted to exercise the
Option unless he or she has executed and delivered the Non-Disclosure Agreement
and the Confidentiality Agreement, including any and all amendments,
modifications or extensions requested by the Company.
6. Exercise of Award.
(a) In order to exercise the Option, the person or persons
entitled to exercise it shall deliver to the Secretary of the Company written
notice of the number of Shares with respect to which the Option is to be
exercised. Unless (i) the Company, in its discretion, establishes "cashless
exercise" procedures pursuant to Section 9.2 of the Plan, and (ii) the Company's
Compensation Committee (the "Committee"), in its discretion, permits the person
or persons entitled to exercise the Option to utilize such "cashless exercise"
procedures, the notice shall be accompanied by payment in full for Shares being
purchased, which payment shall be in cash, or (iii) upon approval of the
Committee, by certificates of Shares held at least 6 months by the Optionee,
duly endorsed in blank, having a fair market value on the date of exercise equal
to the purchase price of the Shares to be purchased, or (iv) upon approval of
the Committee, by a combination of cash and Shares. No fractional Shares shall
be issued.
(b) No shares shall be issued until full payment therefor has
been made, and the Optionee shall have none of the rights of a stockholder in
respect of such Shares until they are so issued.
7. Nontransferability. The Option shall not be transferable other than:
(a) by will or the laws of descent and distribution, and the Option may be
exercised, during the lifetime of the Optionee, only by him or her or in the
event of death, by the Optionee's Successor, or in the event of disability, by
the Optionee's personal representatives or (b) pursuant to a qualified domestic
relations order, as defined in the Internal Revenue code of 1986, as amended
(the "Code"), or ERISA, or the rules thereunder.
8. Termination of Employment. In the event that the
employment of or other relationship to the Company of the Optionee is terminated
(otherwise than (a) for cause by the Company or (b) voluntarily by the Optionee
without the written consent of the Company, or (c) upon a breach or threatened
breach of the Non-Interference Agreement or the Confidentiality Agreement),
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then (i) the Option may be exercised by the Optionee, to the extent that he or
she is entitled to do so immediately before such termination, at any time within
three months after such termination, but not beyond the original Term hereof and
(ii) the portion of the Option that has not vested as of the date of such
termination shall automatically terminate. So long as the Optionee shall
continue in the employ of or other relationship to the Company or any of its
Subsidiaries, the Option shall not be affected by an change of duties or
position. Nothing in this Award Agreement shall confer upon the Optionee any
right to continue in the employ of or other relationship to the Company or any
of its Subsidiaries or interfere in any way with the right of the Company or any
such Subsidiary to terminate his or here employment or other relationship with
the Company at any time. In the event of any termination of the Optionee's
employment or other relationship with the Company for cause, or in the event of
any voluntary termination on the part of the Optionee without the written
consent of the Company or upon a breach or threatened breach of the
Non-Interference Agreement or the Confidentiality Agreement, the Option, to the
extent not theretofore exercised by reason of non-vesting or otherwise, shall
forthwith terminate.
9. Death of Optionee. If the Optionee dies while he or she is employed
by or is providing services to the Company or any of its Subsidiaries or within
three months after termination of his or her employment or other relationship
with the Company, provided such termination was not for any reason set forth in
paragraph 8(a)-(c) above, then (i) the Option may be exercised to the extent the
Optionee was entitled to do so immediately before the time of his or her death,
by a legatee or legatees of the Optionee under his or her last will, or by his
or her personal representatives or distributee, at any time within one year
after his or her death, but not beyond the Term hereof and (ii) the portion of
the Option that has not vested as of the date of the Optionee's death shall
automatically terminate.
10. Disability of Optionee. If the employment or other relationship
with the Company of the Optionee terminates on account of his or her having
become "disabled" as defined in Section 22(e)(3) of the Code then (i) the Option
may be exercised to the extent that the Optionee was entitled to do so
immediately before the termination of his or her employment or other
relationship with the Company on account of his or her becoming disabled, at any
time within one year after the date on which his or her employment or other
relationship with the Company terminated, but not beyond the Term hereof and
(ii) the portion of the Option that has not vested as of the date of the
Optionee's disability shall automatically terminate.
11. Retirement of Optionee. If the employment or other relationship
with the Company of the Optionee terminates by reason of retirement entitling
the Optionee to benefits under the provisions of any retirement plan of the
Company or any of its Subsidiaries in which the Optionee participates, then (i)
the Option may be exercised, to the extent that the Optionee was entitled to do
so immediately before the termination of his or her employment on account of his
or her retirement, at any time within one year after the date on which his or
here employment terminated, but not beyond the original Term of the Option and
(ii) the portion of the Option that has not vested as of the date of the
Optionee's retirement shall automatically terminate.
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12. Change in Control. Notwithstanding anything in this Award Agreement
to the contrary, in the case of a Change in Control of the Company as defined in
Section 2.2 of the Plan, and subject to Section 15 of the Plan, the Optionee
shall have the right, commencing at least five (5) days prior to such Change in
Control, to immediately exercise the Option in full, without regard to any
vesting limitations; provided, however, that this Section 12 shall not apply to
the extent that such event would cause this Award, when aggregated with all
other payments in the nature of compensation due the Optionee, to be treated as
an"excess parachute payment" as defined in Section 280G(b) (or its successor) of
the Code. For purposes of determining whether this Award constitutes an "excess
parachute payment," this Award shall be deemed to be considered part of the
"base amount" as defined in Section 280G(b)(3) of the Code and part of the
"reasonable compensation" referred to in Section 280G(b)(4) of the Code only to
the extent any other payments to the Optionee in (the nature of compensation
taken into consideration under Section 280G do not equal or exceed the sum of
(x) such "base amount" and (y) such "reasonable compensation" in excess of such
"base amount" unless the Committee, in its discretion, determines that an
employment agreement or other arrangement with the Optionee requires "excess
parachute payments" to be computed in some other manner, in accordance with
Section 280G of the Code.
13. Taxes. The Company has the right to require a person entitled to
receive Shares pursuant to the exercise of any Option under the Plan to pay the
Company the amount of any taxes which the Company is or will be required to
withhold with respect to such Shares before the certificate of such Shares is
delivered. Furthermore, the Company may elect to deduct such taxes from any
other amounts payable in cash or in shares or from any other amounts payable
anytime thereafter to the Optionee.
14. Adjustments Upon Changes in Capitalization. In the event of changes
in all of the outstanding Shares by reason of stock dividends, stock splits,
reclassifications, recapitalizations, mergers, consolidations, combinations, or
exchanges of shares, separations, reorganizations, liquidations, or similar
events, or in the event of extra ordinary cash or non-cash dividends being
declared with respect to the Shares, or similar transactions or events, the
number and class of Shares subject to the Option hereby granted, the option
price and all other applicable provisions thereof shall, subject to the
provisions of the Plan, be correspondingly equitably adjusted by the Committee
(which adjustment may, but need not, include payment to the holder of the
Option, in cash or in shares, in any amount equal to the difference between the
option price and the then current Fair Market Value of the Shares subject to the
Option as equitably determined by the Committee), as it shall decide in its sole
discretion. Any such adjustment may provide for the elimination of any
fractional share which might otherwise be subject to the Option.
15. Delivery of Shares on Exercise. Delivery of certificates for Shares
pursuant to the exercise of the Option may be postponed by the Company for such
period as may be required for it with reasonable diligence to comply with any
applicable requirements of any federal, state or local law or regulation of any
administrative or quasi-administrative requirement applicable to the sale,
issuance, distribution or delivery of such Shares. The Committee may, in its
sole discretion, require the holder of the Option to furnish the Company with
appropriate representations and a written
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investment letter prior to the exercise of the Option or the delivery of any
Shares pursuant to the Option.
16. Incorporation of Provisions of the Plan. All of the provisions of
the Plan pursuant to which this Option is granted are hereby incorporated by
reference and made a part hereof as if specifically set forth herein, and to the
extent there exists any conflict between this Award Agreement and the terms
contained in the aforesaid Plan, the terms of the Plan shall prevail. To the
extent any capitalized terms are not otherwise defined herein, they shall have
the meaning set forth in Section 2 of the Plan. If this Award Agreement is dated
prior to approval of the Plan by the Company's Stockholders, then the Option
granted is conditioned upon receipt of such approval.
17. Waiver and Modification. The provisions of this Award Agreement may
not be waived or modified unless such waiver or modification is done in writing
and acknowledged by all the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Award Agreement to be
duly executed by one of its officers thereunto duly authorized, and the Optionee
has hereunto set his or her hand, all on the day and year first above written.
ACCESS BEYOND, INC.
By:
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Optionee
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