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EXHIBIT 10.12
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 _______________________, a member of the Board of Directors of the Company,
or a designee of such member (hereinafter called the "Optionee").
WHEREAS, the Company has heretofore adopted the 1996 Non-employee
Directors' Stock Option Plan of Access Beyond, Inc. (the "Plan"); and
WHEREAS, the Optionee is a non-employee director (or designee thereof)
of the Board of Directors of the Company (the "Board"); 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:
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(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.
(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. 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 7.2 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 for more than 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.
6. 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.
7. Termination of Board Membership. In the event that the Optionee
(which, in the case of an Optionee who is a designee of a Board member, shall
mean, for purposes of this paragraph 7, such Board member) ceases to be a member
of the Board (otherwise than by death or disability), then (a) the Option may be
exercised by the Optionee, to the extent that he or she is entitled to do so as
of the date the Optionee ceases to be a member of the Board, at any time within
seven months after such date, but not beyond the Term hereof and (b) the portion
of the Option that has not vested as of the date of the Optionee ceases to be a
member of the Board shall automatically terminate.
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8. Death of Optionee. If the Optionee (which, in the case of an
Optionee who is a designee of a Board member, shall mean, for purposes of this
paragraph 8, such Board member) dies or becomes disabled while he or she is a
member of the Board, or within seven months after he or she ceases to be a
member of the Board, then (a) the Option may be exercised to the extent the
Optionee was entitled to do so immediately before the time of his or her death
or disability, by the Optionee's Successor, at any time within one year after he
or she ceases to be a member of the Board on account of such death or
disability, but not beyond the Term hereof and (b) the portion of the Option
that has not vested as of the date of the Optionee's death or disability shall
automatically terminate.
9. 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, the Optionee shall have the right, commencing at least
five (5) days prior to such Change in Control and subject to any other
limitation on the exercise of such Option in effect on the date of exercise, to
immediately exercise the Option in full, without regard to any vesting
limitations. The Option shall terminate on the later of (a) ninety (90) days
after the occurrence of such Change of Control and (b) seven (7) months
following the Date of Grant.
10. 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.
11. 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.
12. 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
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the holder of the Option to furnish the Company with appropriate representations
and a written investment letter prior to the exercise of the Option or the
delivery of any Shares pursuant to the Option.
13. 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.
14. 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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