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Exhibit 4.4
AMENDED AND RESTATED
MILLENNIA SYSTEMS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement"), is entered into as of this _____
day of August, 2000, to be effective ________________ ("Date of Grant") by and
between MILLENNIA SYSTEMS, INC., a Virginia corporation (the "Company"), and the
person identified at the end of this Agreement as the optionee (the "Optionee").
WHEREAS, the Board has granted the Optionee a stock option to purchase the
number of shares of the Company's common stock as set forth below;
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option.
NOW, THEREFORE, to enable and encourage stock ownership by employees, and
also in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby evidences its grant to the Optionee
of the right and option (the "Option") to purchase all or any part of the number
of shares of the Company's Class B nonvoting Common Stock, no par value per
share (the "Stock"), set forth on Schedule A attached hereto and incorporated
herein by reference. The Option shall be exercisable in the amounts and at the
time specified on Schedule A. The Option shall expire and shall not be
exercisable after the date specified on Schedule A or on such earlier date as
determined pursuant to Section 6, 7 or 8 hereof. The Option evidenced hereby is
not intended to constitute an incentive stock option as such term is defined
under Section 422 of the Code.
2. Purchase Price. The price per share to be paid by the Optionee for the
shares subject to this Option (the "Exercise Price") shall be as specified on
Schedule A.
3. Exercise Terms. The Optionee must exercise the Option for at least the
lesser of 100 shares or the number of shares of purchasable Stock as to which
the Option remains unexercised. In the event this Option is not exercised with
respect to all or any part of the shares subject to this Option prior to its
expiration, the shares with respect to which this Option was not exercised shall
no longer be subject to this Option.
4. Option Non-Transferable. The Option is non-transferable other than by
will or the laws of descent and distribution or pursuant to a domestic relations
order. During the lifetime of the Optionee, the Option shall be exercisable
only by such Optionee or the transferee under a domestic relations order (or by
such person's guardian or legal representative, should one be appointed).
5. Notice of Exercise of Option. This Option may be exercised, in whole
or in part, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as
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Schedule B) delivered or mailed to the Company as specified in Section 12 hereof
to the attention of the President/CEO or such other officer as the Company may
designate. Any such notice shall: (a) specify the number of shares of Stock
subject to the Option as to which the Option is being exercised, (b) contain
such information as may be reasonably required pursuant to Section 10 hereof,
and (c) be accompanied by a certified or cashier's check payable to the Company
in payment of the total Exercise Price applicable to such shares as provided
herein. Upon receipt of any such Notice of Exercise and accompanying payment,
and subject to the terms hereof, the Company agrees to issue stock certificates
for the number of shares specified in such notice registered in the name of the
person exercising this Option.
In addition to and at the time of payment of the Exercise Price, the
Optionee shall pay to the Company in cash the full amount of any federal, state,
and local income, employment or other taxes required to be withheld from the
income of such Optionee as a result of such exercise and the Optionee agrees, as
a condition to receipt of the shares of Stock as to which the Option is being
exercised, to execute an agreement in such form and containing such terms and
conditions, including but not limited to, restrictions on the transfer of such
shares as shall be required by the Board of Directors of the Company in its sole
discretion.
6. Cessation of Service as Employee.
(a) In the event of the termination of the Optionee's employment with the
Company, other than a termination that is either: (i) for Cause (as such term is
defined in the Employment Agreement between Company and Optionee), (ii) a
resignation on the part of the Optionee without written consent of the Company,
or (iii) on account of Optionee's death or disability, the number of shares set
forth in the Option shall be fully vested and the Optionee may exercise this
Option at any time within 3 months after such termination to the extent of the
number of shares set forth in Schedule A and not previously acquired by
Optionee; but in no event may such exercise occur after the Expiration Date
specified in Schedule A attached hereto.
(b) In the event of a termination of the Optionee's employment with the
Company that is either: (i) for Cause; or (ii) a resignation on the part of the
Optionee without the written consent of the Company; or (iii) on account of the
death or disability of the Optionee, this Option, to the extent not previously
exercised, shall terminate 15 days after such termination and shall not
thereafter be or become exercisable; but in no event may such exercise occur
after the Expiration Date specified in Schedule A attached hereto.
(c) Retirement of the Optionee at the end of the term during which he or
she reaches normal retirement date as prescribed from time to time by the
Company shall be deemed to be a termination of employment with consent for all
purposes of this Option. For purposes of this Agreement, whether a termination
of employment by the Company constitutes termination for Cause shall be
determined in the sole discretion of the Board. This Option does not confer
upon the Optionee any right with respect to continuance of service as an
employee of the Company.
7. Disabled Optionee. In the event of termination of employment because
of the Optionee's becoming disabled, as defined in Code Section 22(e)(3) and
determined within the sole discretion of the Board, the Optionee (or his or her
personal representative) may exercise
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this Option at any time within 3 months after such termination to the extent of
the number of shares which were Purchasable hereunder at the date of such
termination; but in no event may such exercise occur after the Expiration Date
specified in Schedule A attached hereto.
8. Death of Optionee. In the event of the Optionee's death while serving
as an employee of the Company, the Optionee's executor, personal representative
or the person(s) to whom the Option shall have been transferred by will or the
laws of descent and distribution, as the case may be, must exercise this Option,
if at all, at any time: (a) within 3 months following the Optionee's death or,
if earlier, (b) on or before the Expiration Date of this Option. If the
Optionee was an employee of the Company at the time of death, this Option may be
so exercised to the extent of the number of shares that were Purchasable
hereunder at the date of death. If the Optionee's employment terminated prior
to his or her death, this Option may be exercised only to the extent of the
number of shares covered by this Option which were Purchasable hereunder at the
date of termination.
9. Date of Grant. This Option was granted by the Board on the date set
forth in Schedule A (the "Date of Grant").
10. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate any law or any rule, regulation, order or
consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission) having jurisdiction over the affairs of the
Company or may place restrictions (including but not limited to restrictions on
Optionee's rights to transfer such shares) on any shares of Stock issued upon
exercise of this Option in order to comply with or further assure compliance
with any such laws, rules, regulations, orders or consent decrees. The Optionee
agrees that he or she will provide the Company with such information as is
reasonably requested by the Company or its counsel to determine whether the
issuance of Stock complies with the provisions described by this Section 10.
11. Corporate Transaction.
(a) If this Option is outstanding at the time of a Corporate Transaction
(as defined below) but not fully exercisable, this Option shall automatically
accelerate so that it will, immediately prior to the effective date of such
Corporate Transaction, become exercisable for all of the Stock at the time
subject to this Option and may be exercised for any or all of the Stock as fully
vested shares of Stock. However, this Option shall not be accelerated if and to
the extent: (i) this Option is, in connection with the Corporate Transaction, to
be assumed by the successor corporation (or parent thereof), or (ii) this Option
is to be replaced with a cash incentive program of the successor corporation
which preserves the spread existing at the time of the Corporate Transaction on
the Stock for which this Option is not otherwise at that time exercisable (the
excess of the Fair Market Value as defined below of the Stock over the aggregate
Exercise Price payable for such shares) and provides for subsequent payout in
accordance with the same option exercise/vesting schedule set forth in the
Option.
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(b) Immediately following the Corporate Transaction, this Option shall
terminate and cease to be outstanding, except to the extent assumed by the
successor corporation (or parent thereof) in connection with the Corporate
Transaction.
(c) If this Option is assumed in connection with a Corporate Transaction,
then 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 Exercise
Price, provided the aggregate Exercise Price under this Option shall remain the
same.
(d) This Agreement shall not in any way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
(e) For purposes of this Agreement, Fair Market Value per share of Common
Stock on any relevant date shall be determined in accordance with the following
provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be deemed equal to the closing
selling price per share of Common Stock on the date in question, as the price is
reported by the National Association of Securities Dealers on the Nasdaq
National Market. If there is no closing selling price for the Common Stock on
the date in question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be deemed equal to the closing
selling price per share of Common Stock on the date in question on the Stock
Exchange determined to be the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such Exchange. If
there is no closing selling price for the Common Stock on the date in question,
then the Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(f) For purposes of this Agreement, Corporate Transaction shall mean
either of the following stockholder-approved transactions to which the
Corporation 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
Corporation'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 Corporation's assets in complete liquidation or
dissolution of the Corporation.
12. Miscellaneous.
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(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed by
the laws of, the Commonwealth of Virginia.
(c) Any requests or notices to be given hereunder shall be deemed given,
and any elections or exercises to be made or accomplished shall be deemed made
or accomplished, upon actual delivery thereof to the designated recipient, or
three days after deposit thereof in the United States mail, registered, return
receipt requested and postage prepaid, addressed, if to the Optionee, at the
address set forth below and, if to the Company, to the attention of the
President/CEO of the Company at The New Century Venture Center, Suite 400, 1354
Eighth Street, S.W., Roanoke, Virginia 24015.
(d) Except as otherwise provided in the Plan, this Agreement may not be
modified except in writing executed by each of the parties hereto.
(__) (e) If checked, this Agreement supercedes and replaces in its entirety
that certain Nonqualified Stock Option Agreement dated ___________________ and
previously entered into by the Company and Optionee (the "Prior Agreement").
The terms and provisions of the Prior Agreement shall hereinafter be null and
void.
IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement to
be executed and the Company's seal to be affixed hereto and attested by the
Secretary of the Company, and the Optionee has executed this Stock Option
Agreement under seal, all as of the day and year first above written.
MILLENNIA SYSTEMS, INC. OPTIONEE
By:__________________________ _________________________________
Name:________________________ Name:____________________________
Title:_______________________ Address:_________________________
_________________________
ATTEST:
_______________________________
Secretary
[SEAL]
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SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
MILLENNIA SYSTEMS, INC.
AND
_________________________
Dated: _______________
1. Number of Shares Subject to Option:
2. Option Exercise Price: $____________ per Share.
3. Date of Grant:
4. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares on or
after the date hereof.
( ) Options are exercisable with respect to the number of
shares indicated below on or after the date indicated next
to the number of shares:
No. of Shares Vesting Date
5. Option Exploration Date:
Check one:
( ) All options expires and are void unless exercised on or
before ________________.
( ) Options expire and are void unless exercised on or before
the date indicated next to the number of shares:
No. of Shares Expiration Date
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SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Millennia Systems, Inc. (the "Company") of
this election to exercise the undersigned's stock option, in full or part, to
purchase _________ shares (no less than 100, unless exercising in full) of the
Company's Class B common stock, no par value per share (the "Common Stock"),
pursuant to the Stock Option Agreement (the "Agreement") between the undersigned
and the Company dated __________________.
Accompanying this Notice is a certified or a cashier's check in the amount
of $________________ payable to the Company.
This exercise is subject to the execution of an agreement in such form and
containing such terms and conditions, including but not limited to, restrictions
on the transfer of the shares to be received pursuant hereto as shall be
required by the Board of Directors of the Company, in its sole discretion.
IN WITNESS WHEREOF, the undersigned has set his hand and seal. this _____
day of ___________, 200_.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR
OR PERSONAL REPRESENTATIVE]
____________________________
Name:
Position (if other than Optionee):
Received by MILLENNIA SYSTEMS,
INC.
______________________, 200_
By: ________________________
