NON-PLAN STOCK OPTION AGREEMENT
EXHIBIT
10.10
STOCK
OPTION AGREEMENT dated as of March 27, 2006 between DATA SYSTEMS & SOFTWARE
INC., a Delaware corporation (the "Company"), and Xxxxx Xxxxxx (the
"Optionee").
WHEREAS,
on March 27, 2006 at a meeting of the Board of Directors of the Company (the
“Board”), the Board by resolution authorized the granting to Xxxxx Xxxxxx, a
non-management director and member of the Board, an option to purchase 25,000
shares of the Company's Common Stock, par value $.01 per share ("Common Stock").
WHEREAS,
the parties hereto desire to enter into this Agreement in order to set forth
the
terms of such option.
Accordingly,
the parties hereto agree as follows:
1. Grant
of Option; Exercise Price.
Subject
to the terms and conditions of this Agreement, the Company hereby grants to
Optionee the option (the "Option") to purchase, from the Company, up to 25,000
shares of Common Stock (“Option Shares”) at a price per share of $2.65 (the
“Exercise Price”). The Option Shares and the Exercise Price are subject to
adjustment in accordance with the provisions set forth in Section 5
below.
2. Non-Incentive
Stock Option.
The
Option is not intended to qualify as an "incentive stock option" within the
meaning of Section 422A of the Internal Revenue Code of 1986, as
amended.
3. Vesting
of Option.
This
Option shall vest and thereby become exercisable with respect to the Option
Shares on the date of the next held annual meeting; to be held in
2006.
4. Termination
of Option.
(a) This
Option shall terminate upon the earlier of (i) the date 18 months from the
date
on which Optionee ceases to be a director or (ii) March 30, 2011 (the
“Termination Date”).
(b) Upon
the death of the Optionee, the portion of the Option, if any, that was
exercisable as of the date of death may be thereafter be exercised by the legal
representative of the estate or by the legatee of the Optionee under the will
of
the Optionee, for a period of one year from the date of such death or until
the
Termination Date, whichever is shorter.
5. Adjustments.
(a) In
the
event of a stock split, stock dividend, combination of shares, or any other
similar change in the Common Stock as a whole, the Board shall make equitable,
proportionate adjustments in the number and kind of shares covered by the Option
and in the Exercise Price.
(b) In
the event of any reclassification or reorganization of the outstanding shares
of
Common Stock other than a change covered by subsection (i) hereof or that solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), the Optionee shall have the right
thereafter (until the expiration of the right of exercise of this Option) to
receive upon the exercise hereof after such event, for the same aggregate
Exercise Price payable hereunder immediately prior to such reclassification,
reorganization, merger or consolidation, the amount and kind of consideration
receivable by a holder of the number of shares of Common Stock obtainable upon
exercise of this Option immediately prior to such event. The provisions of
this
subsection (ii) shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other
transfers.
6. Manner
of Exercise.
This
Option may be exercised by the delivery to the Company of a written notice
signed by the Optionee in the form of Exhibit A hereto, together with either
(i)
full payment of the purchase price therefor in cash or by certified check
payable to the order of the Company or (ii) irrevocable instructions to a broker
designated or approved by the Company to sell shares of Common Stock equal
to
the Option Shares and promptly deliver to the Company a portion of the proceeds
thereof equal to the Exercise Price and any applicable withholding taxes. The
Optionee may be required to remit to the Company an amount sufficient to satisfy
any federal, state or local withholding tax requirements prior to delivering
to
Optionee the Option Shares. This Option may not be exercised with respect to
a
fractional share.
7. Restriction
on Transfer.
(a) This
Option may not be assigned or transferred except by will or the law of descent
and distribution and during the Optionee's lifetime may be exercised only by
Optionee.
(b) Anything
in this Agreement to the contrary notwithstanding, the Optionee hereby agrees
that he or she shall not sell, transfer by any means or otherwise dispose of
the
Options Shares acquired by him without registration under the Securities Act,
or
that in the event that they are not so registered, unless (i) an exemption
from
the Securities Act requirements is available thereunder, and (ii) the Optionee
has furnished the Company with notice of such proposed transfer and the
Company’s legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
8. Miscellaneous.
(a) Notices.
Any notice or communication to the Company hereunder shall be in writing and
shall be deemed to have been duly given when delivered in person, or by United
States mail, to the following address (or to such other address as the Company
shall from time to time specify):
-2-
Data
Systems & Software Inc.
000
Xxxxx
00
Xxxxxx,
Xxx Xxxxxx 00000
Attention:
Secretary
(b) Stockholder
Rights. The Optionee shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issue after the due
exercise of the Option.
(c) Waiver.
The waiver by any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other or subsequent
breach.
(d) Entire
Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. This Agreement may not be amended
except by writing executed by the Optionee and the Company.
(e) Binding
Effect; Successors. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and, to the extent not prohibited herein, their
respective heirs, successors, assigns and representatives. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other
than
the parties hereto and as provided above, their respective heirs, successors,
assigns and representatives, any rights, remedies, obligations or
liabilities.
(f) Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York (without regard to choice of law provisions);
provided, however, that all matters relating to or involving corporate law
shall
be governed by the Delaware General Corporation Law.
(g) Headings.
The headings contained herein are for the sole purpose of convenience of
reference and shall not in any way limit or affect the meaning or interpretation
of any of the terms or provisions of this Agreement.
[Signature
Page Follows]
-3-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first above written.
| DATA SYSTEMS & SOFTWARE INC. | ||
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| By: | /s/ Xxxxxxx Xxxxxx | |
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Xxxxxxx Xxxxxx |
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| Secretary | ||
| OPTIONEE | ||
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| By: | /s/ Xxxxx Xxxxxx | |
|
Xxxxx Xxxxxx |
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-4-
EXHIBIT
A
TO STOCK OPTION AGREEMENT
OPTION
EXERCISE FORM
DATA
SYSTEMS & SOFTWARE INC.
000
XXXXX
00
XXXXXX,
XX 00000
Gentlemen:
I
hereby
exercise the following portion of the stock options that have heretofore been
granted to me under the Non-Plan Stock Option Agreement by and between myself
and Data Systems & Software Inc. dated as of March 27, 2006:
Date
of
grant
March
27, 2006
Exercise
price per
share
$2.65
Number
of
options originally granted 25,000
Number
of
options currently held
Number
of
options being exercised hereby
In
connection with this exercise [check one]:
_____
I
enclose my check in the amount of $
_____
I am
delivering to a broker designated or approved by the Company irrevocable
instructions to (i) sell shares of Common Stock acquired upon exercise and
(ii)
promptly deliver to the Company a portion of the proceeds thereof equal to
the
Exercise Price and any applicable withholding taxes.
I
hereby
agree to execute whatever other documents are necessary in order to comply
with
the Agreement and any applicable legal requirements in connection with the
issuance of the stock to me pursuant to the Agreement.
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Optionee
(Signature)
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Social
Security Number
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| _________________________ | |
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Please
print name
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Date
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Address
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