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EXHIBIT 4.4
THE SECURITIES REPRESENTED BY AND ISSUABLE UPON EXERCISE OF THIS OPTION HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS. NO TRANSFER OR SALE OF THESE SECURITIES OR ANY STOCK
ISSUABLE UPON EXERCISE THEREOF MAY BE MADE WITHOUT SUCH REGISTRATION AND
QUALIFICATION UNLESS THE ISSUER HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE SATISFACTORY TO IT THAT A PROPOSED TRANSFER OR SALE DOES NOT REQUIRE
REGISTRATION OR QUALIFICATION UNDER APPLICABLE LAW.
S-O ACQUISITION CORP.
EXECUTIVE OFFICER
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement ("Agreement") is entered
into as of the 8th day of January, 1997, between S-O Acquisition Corp., a
Delaware corporation (the "Company"), and _________________ (the "Optionee").
RECITAL:
Optionee is an officer of the Company, and the Company considers it
desirable and in its best interest to grant Optionee an inducement to acquire a
proprietary interest in the Company, and thus to promote the future growth,
development and continued success of the Company;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the Company and Optionee agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee the
right, privilege and option ("Option") to purchase up to ___________ (_____)
shares of Common Stock of the Company, par value $.01 per share (collectively,
the "Option Shares") at an exercise price per share of twenty dollars ($20.00),
in the manner and subject to the conditions provided herein.
2. MAXIMUM TERM OF OPTION. The maximum term of this Option shall
be for a term ending January 7, 2007.
3. CONDITIONS AND TIME OF EXERCISE OF OPTION. This Option is
immediately vested and exercisable as of the date of this Agreement.
4. EFFECT OF TERMINATION OF EMPLOYMENT. Anything herein to the
contrary notwithstanding, in the event that employment of the Optionee with the
Company is terminated
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for any reason, including upon the death or disability of the Optionee, then
this Option shall automatically lapse as to all unexercised Option Shares six
[(6) months] [one (1) year] following such termination of employment.
5. STATUS OF OPTION. The Option covered by this Agreement is not
intended to be an incentive stock option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and shall be governed
by the terms of the Code relating to options other than Incentive Stock
Options.
6. METHOD OF EXERCISE OF OPTIONS. This Option shall be
exercisable in whole or in part, to the extent then vested and exercisable, by
written notice delivered to the Secretary of the Company stating the number of
Option Shares with respect to which the Option is being exercised, accompanied
by payment of the exercise price by cash or check made payable to the Company.
In addition, should the Option Shares be registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended, at the time the Option is
exercised, then the exercise price may, in the discretion of the Board of
Directors of the Company, also be paid as follows: (i) in shares of Common
Stock held by Optionee for the requisite period necessary to avoid a charge to
the Company's earnings for financial reporting purposes and valued at fair
market value on the exercise date; or (ii) through a special sale and
remittance procedure pursuant to which Optionee shall concurrently provide
irrevocable instructions (A) to a Company-designated brokerage firm to effect
the immediate sale of the purchased shares and remit to the Company, out of the
sale proceeds available on the settlement date, sufficient funds to cover the
aggregate exercise price payable for the purchased shares plus all applicable
Federal, state and local income and employment taxes required to be withheld by
the Company by reason of such exercise and (B) to the Company to deliver the
certificates for the purchased shares directly to such brokerage firm in order
to complete the sale.
7. NONTRANSFERABILITY OF OPTION. This Option shall be
exercisable during Optionee's lifetime only by Optionee, and is nontransferable
by Optionee except by will, by applicable laws of descent and distribution or
by valid nonprobate transfer in connection with the death of Optionee or
pursuant to a qualified domestic relations order. In the event of Optionee's
death, the person or persons to whom the Optionee's right hereunder shall have
passed may exercise this Option, to the extent vested and exercisable at the
date of death; provided, however, that no Option may be exercised after the
first to occur of (i) expiration date specified in paragraph 2 hereof, and (ii)
the date which is six [(6) months] [one (1) year] after the date of death of
Optionee.
8. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of
the payment of a stock dividend, a split-up or consolidation of shares, or any
like capital adjustment of the Company, then to the extent the Option hereunder
remains outstanding and unexercised, there shall be a corresponding adjustment
as to the number of Option Shares covered under this Option, and in the
exercise price per share, to the end that Optionee shall retain the Optionee's
proportionate interest without change in the total exercise price under this
Option.
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9. ASSUMPTION OF OPTION. Except as may be otherwise provided in
the agreement reflecting the Corporate Transaction (as hereinafter defined),
this Option shall be assumed by the successor corporation (or parent thereof)
in connection with a Corporate Transaction, and this Option shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
to the number and class of securities which would have been issuable to
Optionee in consummation of such Corporate Transaction had the option been
exercised immediately prior to such Corporate Transaction, and appropriate
adjustments shall also be made to the Purchase Price, provided the aggregate
Purchase Price shall remain the same. For purposes of this Section, "Corporate
Transaction" shall mean either of the following stockholder-approved
transactions to which the Company is a party: (i) a merger or consolidation in
which securities possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities are transferred to a
person or persons different from the persons holding those securities
immediately prior to such transaction, or (ii) the sale, transfer or other
disposition of all or substantially all of the Company's assets in complete
liquidation or dissolution of the Company.
10. MARKET STAND-OFF.
1. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended, including the
Company's initial public offering, Optionee shall not sell, make any short sale
of, loan, hypothecate, pledge, grant any option for the purchase of, or
otherwise dispose or transfer for value or otherwise agree to engage in any of
the foregoing transactions with respect to, any securities of the Company
without the prior written consent of the Company or its underwriters. Such
restriction (the "Market Stand-Off") shall be in effect for such period of time
from and after the effective date of the final prospectus for the offering as
may be requested by the Company or such underwriters. In no event, however,
shall such period exceed one hundred eighty (180) days.
2. Optionee agrees to execute any documentation
acknowledging the Market Stand-Off as may be required by the Company or its
underwriters.
3. In order to enforce the Market Stand-Off, the Company
may impose stop-transfer instructions with respect to the securities of the
Company held by Optionee until the end of the applicable stand-off period.
11. FINANCIAL STATEMENTS. The Company shall deliver to Optionee
such of its financial statements as Optionee shall reasonably request from
time to time in connection with his exercise of this Option or his evaluation
of the advisability of such exercise.
12. LEGENDS. All certificates evidencing Option Shares acquired
upon exercise of this Option shall bear appropriate legends which indicate that
the Option Shares have not been registered under state or federal securities
laws.
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13. PARENTS, SUBSIDIARIES AND SUCCESSORS OF THE COMPANY. All
references herein to the Company shall be deemed to include any parent or
subsidiary of the Company (as defined in Section 425 of the Code), unless the
context shall otherwise require or indicate.
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IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the day and year first above written.
"Corporation"
S-O Acquisition Corp.
By:_______________________________
Name:_____________________________
Title:____________________________
"Optionee"
__________________________________
Name: ____________________________
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