As filed with the Securities and Exchange Commission on March 27, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
VERSATILITY INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1214354
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
11781 LEE JACKSON MEMORIAL HIGHWAY
SEVENTH FLOOR
FAIRFAX, VA 22033
(Address of principal executive offices) (Zip Code)
1995 Employee Stock Option Plan
1995 Incentive Stock Option Plan
1996 Stock Plan
1996 Employee Stock Purchase Plan
Other Employee Benefit Plan
(Full title of the plans)
--------------------------
Ronald R. Charnock
President, Chief Executive Officer and Chairman of the Board of Directors
Versatility Inc.
11781 Lee Jackson Highway
Seventh Floor
Fairfax, Virginia 22033
(703) 591-2900
(Name, address including zip code and telephone number,
including area code, of agent for service)
--------------------------
Copy to:
Lawrence S. Wittenberg, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- ----------------------------- ----------------------- ----------------- ------------------------- -------------------
<S> <C>
1995 Employee Stock Option Plan
Common Stock,
$.01 par value 215,591 shares $.80(1) $172,472.80 $52.26
1995 Incentive Stock Option Plan
Common Stock,
$.01 par value 62,569 shares $.80(1) $50,055.20 $15.17
1996 Stock Plan
Common Stock, 139,000 shares $10.50(1) $1,459,500.00 $442.27
$.01 par value 611,000 shares $9.625(2) $5,880,875.00 $1,782.08
1995 Employee Stock Purchase Plan
Common Stock,
$.01 par value 100,000 shares $9.625(2) $962,500.00 $291.67
Other Employee Benefit Plan of the Registrant
Common Stock,
$.01 par value 320,000 shares $.80(1) $256,000.00 $77.58
--------- ----------- ---------
Total: 1,448,160 shares $8,781,403.00 $2,661.03
=====================================================================================================================
</TABLE>
(1) Such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering
price and the fee have been computed upon the basis of the price at
which the options may be exercised. The offering price per share set
forth for such shares is the exercise price per share at which such
options are exercisable.
(2) The price of $9.625 per share, which is the average of the high and
low prices reported on the Nasdaq National Market on March 25, 1997, is
set forth solely for purposes of calculating the filing fee pursuant to
Rule 457(c) and is used only for those shares without a fixed exercise
price.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
2
<PAGE>
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Commission and
the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated December 12, 1996, as filed on
December 13, 1996 pursuant to Rule 424(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act"), in
Registration Statement No. 333-13771 on Form S-1, as amended
(the "Form S-1");
(b) The section entitled "Description of Registrant's Securities
to be Registered" contained in the Registrant's Registration
Statement on Form 8-A, filed pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on November 26, 1996, and incorporating by reference
the information contained in the Form S-1; and
(c) Registrant's Quarterly Report on Form 10-Q for the quarter
ended January 31, 1997 as filed pursuant to the Exchange Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
3
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Company's Second Amended
and Restated Certificate of Incorporation and Amended and Restated By-laws
provide for indemnification of the Company's directors and officers for
liabilities and expenses that they may incur in such capacities. In general,
directors and officers are indemnified with respect to actions taken in good
faith in a manner reasonably believed to be in, or not opposed to, the best
interest of the Company, and with respect to any criminal action or proceeding,
actions that the indemnified party had no reasonable cause to believe were
unlawful. Reference is made to the Registrant's Form of Second Amended and
Restated Certificate of Incorporation and Amended and Restated By-Laws filed as
Exhibits 3.2 and 3.3 respectively, to the Registrant's Registration Statement on
Form S-1 (File No. 333-13771) and incorporated herein by reference.
The Purchase Agreement provides that the Underwriters are obligated,
under certain circumstances, to indemnify directors, officers, controlling
persons of the Company and selling shareholders against certain liabilities,
including liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). Reference is made to the form of Purchase Agreement filed as
Exhibit 1.1 to the Registrant's Registration Statement on Form S-1 (File No.
333-13771) and incorporated herein by reference.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
Exhibit 4.1 Specimen certificate representing the Common Stock
of the Registrant (filed as Exhibit 4.1 to
Registrant's Registration Statement on Form S-1 (File
No. 333-13771) and incorporated herein by reference).
Exhibit 4.2 Form of Second Amended and Restated Certificate
of Incorporation of the Registrant (filed as Exhibit
3.2 to Registrant's Registration Statement on Form
S-1 (File No. 333-13771) and incorporated herein by
reference).
4
<PAGE>
Exhibit 4.3 Amended and Restated By-Laws of the Registrant,
(filed as Exhibit 3.3 to Registrant's Registration
Statement on Form S-1 (File No. 333-13771) and
incorporated herein by reference).
Exhibit 4.4 1996 Stock Plan (filed as Exhibit 10.4 to
Registrant's Registration Statement on Form S-1 (File
No. 333-13771) and incorporated herein by reference).
Exhibit 4.5 Form of Incentive Stock Option Agreement under the
1996 Stock Plan of the Registrant.
Exhibit 4.6 Form of Non-Qualified Stock Option Agreement under
the 1996 Stock Plan of the Registrant.
Exhibit 4.7 1996 Employee Stock Purchase Plan (filed as Exhibit
10.3 to Registrant's Registration Statement on Form
S-1 (File No. 333-13771) and incorporated herein by
reference).
Exhibit 4.8 1996 Employee Stock Purchase Plan Enrollment
/Authorization Form.
Exhibit 4.9 1995 Employee Stock Option Plan (filed as Exhibit
10.1 to Registrant's Registration Statement on Form
S-1 (File No. 333-13771) and incorporated herein by
reference).
Exhibit 4.10 1995 Incentive Stock Option Plan (filed as Exhibit
10.2 to Registrant's Registration Statement on Form
S-1 (File No. 333-13771) and incorporated herein by
reference).
Exhibit 4.11 Stock Option Agreement dated January 17, 1996 by and
between the Registrant and Louis Venezia.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
Exhibit 23.1 Consent of Deloitte & Touche LLP
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included
in Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
5
<PAGE>
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant
pursuant to Sections 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report
6
<PAGE>
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Versatility Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fairfax, Commonwealth of
Virginia, on this 27th day of March, 1997.
VERSATILITY INC.
By: /s/ Donald C. Yount, Jr.
____________________________
Donald C. Yount, Jr.
Senior Vice President, Finance and
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, Ronald
R. Charnock and Donald C. Yount, Jr., his attorneys-in-fact, each with the power
of substitution, for him in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8 (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C>
/s/ Ronald R. Charnock President, Chief Executive Officer March 27, 1997
- ---------------------------- and Chairman of the Board of
Ronald R. Charnock Directors
/s/ Donald C. Yount, Jr.
- ---------------------------- Senior Vice President, Finance March 27, 1997
Donald C. Yount, Jr. and Chief Financial Officer
/s/ Marcus W. Heth Senior Vice President, March 27, 1997
- ---------------------------- Technologies, Secretary and
Marcus W. Heth Director
/s/ Thomas A. Smith Director March 27, 1997
- ----------------------------
Thomas A. Smith
/s/ Charles A. Johnson Director March 27, 1997
- ----------------------------
Charles A. Johnson
/s/ Paul J. Palmer Director March 27, 1997
- ----------------------------
Paul J. Palmer
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description Page
Exhibit 4.1 Specimen certificate representing the Common Stock of the
Registrant (filed as Exhibit 4.1 to Registrant's Registration
Statement on Form S-1 (File No. 333-13771) and incorporated
herein by reference).
Exhibit 4.2 Form of Second Amended and Restated Certificate of
Incorporation of the Registrant (filed as Exhibit 3.2 to
Registrant's Registration Statement on Form S-1 (File No.
333-13771) and incorporated herein by reference).
Exhibit 4.3 Amended and Restated By-Laws of the Registrant (filed as
Exhibit 3.3 to Registrant's Registration Statement on Form
S-1 (File No. 333-13771) and incorporated herein by
reference).
Exhibit 4.4 1996 Stock Plan (filed as Exhibit 10.4 to Registrant's
Registration Statement on Form S-1 (File No. 333-13771) and
incorporated herein by reference).
Exhibit 4.5 Form of Incentive Stock Option Agreement under the 1996
Stock Plan of the Registrant.
Exhibit 4.6 Form of Non-Qualified Stock Option Agreement under the 1996
Stock Plan of the Registrant.
Exhibit 4.7 1996 Employee Stock Purchase Plan (filed as Exhibit 10.3 to
Registrant's Registration Statement on Form S-1 (File No.
333-13771) and incorporated herein by reference).
Exhibit 4.8 1996 Employee Stock Purchase Plan Enrollment / Authorization
Form.
Exhibit 4.9 1995 Employee Stock Option Plan (filed as Exhibit 10.1 to
Registrant's Registration Statement on Form S-1 (File No.
333-13771) and incorporated herein by reference).
Exhibit 4.10 1995 Incentive Stock Option Plan (filed as Exhibit 10.2 to
Registrant's Registration Statement on Form S-1 (File No.
333-13771) and incorporated herein by reference).
Exhibit 4.11 Stock Option Agreement dated January 17, 1996 by and between
the Registrant and Louis Venezia.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
Exhibit 23.1 Consent of Deloitte & Touche LLP
<PAGE>
Exhibit No. Description Page
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page
to this Registration Statement).
Exhibit 4.5
VERSATILITY INC.
Incentive Stock Option Agreement
Versatility Inc., a Delaware corporation (the "Company"), hereby grants as
of the [day] day of [month, year] to [name of employee] (the "Employee"), an
option to purchase a maximum of [number not exceeding available share limit]
shares (the "Option Shares") of its Common Stock, $.01 par value ("Common
Stock"), at the price of $[price] per share, on the following terms and
conditions:
1. Grant Under 1996 Stock Plan. This option is granted pursuant to and is
governed by the Company's 1996 Stock Plan (the "Plan") and, unless the context
otherwise requires, terms used herein shall have the same meaning as in the
Plan. Determinations made in connection with this option pursuant to the Plan
shall be governed by the Plan as it exists on this date.
2. Grant as Incentive Stock Option; Other Options. This option is intended
to qualify as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). This option is in addition to any
other options heretofore or hereafter granted to the Employee by the Company or
any Related Corporation (as defined in the Plan), but a duplicate original of
this instrument shall not effect the grant of another option.
3. Vesting of Option if Employment Continues. If the Employee has
continued to be employed by the Company or any Related Corporation on the
following dates, the Employee may exercise this option for the number of shares
of Common Stock set opposite the applicable date:
Less than one year from - [number] shares
the date hereof
One year but less than - an additional
two years from the date hereof [number] shares
Two years but less than - an additional
three years from the date hereof [number] shares
<PAGE>
Three years but less than - an additional
four years from the date hereof [number] shares
Four years or more from the - an additional
the date hereof [number] shares
Notwithstanding the foregoing, in accordance with and subject to the provisions
of the Plan, the Committee may, in its discretion, accelerate the date that any
installment of this Option becomes exercisable. The foregoing rights are
cumulative and (subject to Sections 4 or 5 hereof if the Employee ceases to be
employed by the Company and all Related Corporations) may be exercised on or
before the date which is ten years from the date this option is granted.
4. Termination of Employment.
(a) Termination Other Than for Cause: If the Employee ceases to be
employed by the Company and all Related Corporations, other than by reason of
death or disability as defined in Section 5 or termination for Cause as defined
in Section 4(c), no further installments of this option shall become
exercisable, and this option shall terminate (and may no longer be exercised)
after the passage of three months from the Employee's last day of employment,
but in no event later than the scheduled expiration date. In such a case, the
Employee's only rights hereunder shall be those which are properly exercised
before the termination of this option.
(b) Termination for Cause: If the employment of the Employee is
terminated for Cause (as defined in Section 4(c)), this option shall terminate
upon the Employee's receipt of written notice of such termination and shall
thereafter not be exercisable to any extent whatsoever.
(c) Definition of Cause: "Cause" shall mean conduct involving one
or more of the following: (i) the substantial and continuing failure of the
Employee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of his or her
employment; (ii) disloyalty, gross negligence, willful misconduct, dishonesty or
breach of fiduciary duty to the Company or Related Corporation; (iii) the
commission of an act of embezzlement or fraud; (iv) deliberate disregard of the
rules or policies of the Company or Related Corporation which results in direct
or indirect loss, damage or injury to the Company or Related Corporation; (v)
the unauthorized disclosure of any trade secret or confidential information of
the Company or Related Corporation; or (vi) the commission of an act which
constitutes unfair competition with the Company or Related Corporation or which
induces any customer or supplier to breach a contract with the Company or
Related Corporation.
<PAGE>
5. Death; Disability.
(a) Death: If the Employee dies while in the employ of the Company
or any Related Corporation, this option may be exercised, to the extent
otherwise exercisable on the date of his or her death, by the Employee's estate,
personal representative or beneficiary to whom this option has been assigned
pursuant to Section 10, at any time within 180 days after the date of death, but
not later than the scheduled expiration date.
(b) Disability: If the Employee ceases to be employed by the
Company and all Related Corporations by reason of his or her disability (as
defined in the Plan), this option may be exercised, to the extent otherwise
exercisable on the date of the termination of his or her employment, at any time
within 180 days after such termination, but not later than the scheduled
expiration date.
(c) Effect of Termination: At the expiration of the 180-day period
provided in paragraph (a) or (b) of this Section 5 or the scheduled expiration
date, whichever is the earlier, this option shall terminate (and shall no longer
be exercisable) and the only rights hereunder shall be those as to which the
option was properly exercised before such termination.
6. Partial Exercise. This option may be exercised in part at any time and
from time to time within the above limits, except that this option may not be
exercised for a fraction of a share unless such exercise is with respect to the
final installment of stock subject to this option and cash in lieu of a
fractional share must be paid, in accordance with Paragraph 13(G) of the Plan,
to permit the Employee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Employee in accordance with the terms hereof.
7. Payment of Price. (a) The option price shall be paid in the following
manner:
(i) in cash or by check;
(ii) subject to paragraph 7(b) below, by delivery of
previously-held shares of Common Stock or the
withholding from the shares of Common Stock otherwise
deliverable upon exercise of an Option shares having a
fair market value (as determined by the Committee) equal
as of the date of exercise to the option price;
(iii) by delivery of an assignment satisfactory in form and
substance to the Company of a sufficient amount of the
proceeds from the sale of the Option Shares and an
instruction to the broker or selling agent to pay that
amount to the Company; or
(iv) by any combination of the foregoing.
<PAGE>
(b) Limitations on Payment by Delivery of Common Stock: If the
Employee delivers Common Stock held by the Employee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Employee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Employee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Employee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Employee free of any substantial risk of forfeiture
for at least six months.
(c) Permitted Payment by Recourse Note: In addition, if this
paragraph is initialed below by the person signing this Agreement on behalf of
the Company, the option price may be paid by delivery of the Employee's
personal recourse promissory note bearing interest payable not less than
annually at the applicable Federal rate, as defined in Section 1274(d) of the
Code.
----------
(initials)
8. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company at
its principal executive office, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this option and the
number of Option Shares for which it is being exercised and shall be signed by
the person or persons so exercising this option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Employee
and if the Employee shall so request in the notice exercising this option, shall
be registered in the name of the Employee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 5 hereof, by any person or persons other than the Employee, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise this option.
9. Option Not Transferable. This option is not transferable or assignable
except by will or by the laws of descent and distribution. During the Employee's
lifetime only the Employee can exercise this option.
10. No Obligation to Exercise Option. The grant and acceptance of this
option imposes no obligation on the Employee to exercise it.
<PAGE>
11. No Obligation to Continue Employment. Neither the Plan, this
Agreement, nor the grant of this option imposes any obligation on the Company or
any Related Corporation to continue the Employee in employment.
12. No Rights as Stockholder until Exercise. The Employee shall have no
rights as a stockholder with respect to the Option Shares until such time as the
Employee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the shares so exercised in accordance with
Section 8. Except as is expressly provided in the Plan with respect to certain
changes in the capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to such date of
exercise.
13. Capital Changes and Business Successions. The Plan contains provisions
covering the treatment of options in a number of contingencies such as stock
splits and mergers. Provisions in the Plan for adjustment with respect to stock
subject to options and the related provisions with respect to successors to the
business of the Company are hereby made applicable hereunder and are
incorporated herein by reference.
14. Early Disposition. The Employee agrees to notify the Company in
writing immediately after the Employee transfers any Option Shares, if such
transfer occurs on or before the later of (a) the date two years after the date
of this Agreement or (b) the date one year after the date the Employee acquired
such Option Shares. The Employee also agrees to provide the Company with any
information concerning any such transfer required by the Company for tax
purposes.
15. Withholding Taxes. If the Company or any Related Corporation in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Employee hereby agrees that the Company or any Related
Corporation may withhold from the Employee's wages or other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Employee on exercise of this option. The
Employee further agrees that, if the Company or any Related Corporation does not
withhold an amount from the Employee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Employee will make reimbursement on demand, in cash, for the amount
underwithheld.
16. Provision of Documentation to Employee. By signing this Agreement the
Employee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
<PAGE>
17. Miscellaneous.
(a) Notices: All notices hereunder shall be in writing and shall
be deemed given when sent by certified or registered mail, postage prepaid,
return receipt requested, to the address set forth below. The addresses for such
notices may be changed from time to time by written notice given in the manner
provided for herein.
(b) Entire Agreement; Modification: This Agreement constitutes the
entire agreement between the parties relative to the subject matter hereof, and
supersedes all proposals, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement. This Agreement may
be modified, amended or rescinded only by a written agreement executed by both
parties.
(c) Severability: The invalidity, illegality or unenforceability
of any provision of this Agreement shall in no way affect the validity, legality
or enforceability of any other provision.
(d) Successors and Assigns: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Section 9 hereof.
(e) Governing Law: This Agreement shall be governed by and
interpreted in accordance with the laws of the [state], without giving effect to
the principles of the conflicts of laws thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the Company and the Employee have caused this
instrument to be executed as of the date first above written.
VERSATILITY INC.
11781 Lee Jackson Memorial Highway
____________________________ Suite 600
Employee Fairfax, VA 22033
____________________________ By:________________________
Print Name of Employee [Name of officer]
- ---------------------------- ---------------------------
Street Address Title
- ----------------------------
City State Zip Code
Exhibit 4.6
VERSATILITY INC.
Non-Qualified Stock Option Agreement
Versatility Inc., a Delaware corporation (the "Company"), hereby grants
as of the [day] day of [month, year] to [name of optionee] (the "Optionee"), an
option to purchase a maximum of [number] shares (the "Option Shares") of its
Common Stock, $.01 par value ("Common Stock"), at the price of $[price] per
share, on the following terms and conditions:
1. Grant Under 1996 Stock Plan. This option is granted pursuant to and
is governed by the Company's 1996 Stock Plan (the "Plan") and, unless the
context otherwise requires, terms used herein shall have the same meaning as in
the Plan. Determinations made in connection with this option pursuant to the
Plan shall be governed by the Plan as it exists on this date.
2. Grant as Non-Qualified Option; Other Options. This option shall be
treated for federal income tax purposes as a Non-Qualified Option (rather than
an incentive stock option). This option is in addition to any other options
heretofore or hereafter granted to the Optionee by the Company or any Related
Corporation (as defined in the Plan), but a duplicate original of this
instrument shall not effect the grant of another option.
3. Vesting of Option if Business Relationship Continues. If the
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship
with the Company") on the following dates, the Optionee may exercise this option
for the number of shares of Common Stock set opposite the applicable date:
Less than one year from - [number] shares
the date hereof
One year but less than - an additional
two years from the date hereof [number] shares
Two years or more from - an additional
the date hereof [number] shares
Notwithstanding the foregoing, in accordance with and subject to the provisions
of the Plan, the Committee may, in its discretion, accelerate the date that any
installment of this Option becomes exercisable. The foregoing rights are
cumulative and (subject to Sections 4 or 5 hereof if the Employee ceases to be
employed by the Company and all Related Corporations) may be exercised up to and
including the date which is ten years from the date this option is granted.
<PAGE>
4. Termination of Business Relationship.
(a) Termination Other than for Cause: If the Optionee's
Business Relationship with the Company and all Related Corporations is
terminated, other than by reason of death, disability or dissolution as defined
in Section 5 or termination for Cause as defined in Section 4(c), no further
installments of this option shall become exercisable, and this option shall
terminate (and may no longer be exercised) after the passage of three months
from the date the Business Relationship ceases, but in no event later than the
scheduled expiration date. In such a case, the Optionee's only rights hereunder
shall be those which are properly exercised before the termination of this
option.
(b) Termination for Cause: If the Optionee's Business
Relationship with the Company is terminated for Cause (as defined in Section
4(c)), this option shall terminate upon the Optionee's receipt of written notice
of such termination and shall thereafter not be exercisable to any extent
whatsoever.
(c) Definition of Cause: "Cause" shall mean conduct involving
one or more of the following: (i) the substantial and continuing failure of the
Optionee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of the Optionee's
Business Relationship with the Company; (ii) disloyalty, gross negligence,
willful misconduct, dishonesty or breach of fiduciary duty to the Company or
Related Corporation; (iii) the commission of an act of embezzlement or fraud;
(iv) deliberate disregard of the rules or policies of the Company or Related
Corporation which results in direct or indirect loss, damage or injury to the
Company or Related Corporation; (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or Related Corporation; or
(vi) the commission of an act which constitutes unfair competition with the
Company or Related Corporation or which induces any customer or supplier to
break a contract with the Company or Related Corporation.
5. Death; Disability; Dissolution.
(a) Death: If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Optionee's estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 10, at any time within 180 days
after the date of death, but not later than the scheduled expiration date.
(b) Disability: If the Optionee is a natural person whose
Business Relationship with the Company is terminated by reason of his or her
disability (as defined in the Plan), this option may be exercised, to the extent
otherwise exercisable on the date the Business Relationship was terminated, at
any time within 180 days after such termination, but not later than the
scheduled expiration date.
(c) Effect of Termination: At the expiration of such 180-day
period provided in paragraph (a) or (b) of this Section 5 or the scheduled
expiration date, whichever is
<PAGE>
the earlier, this option shall terminate (and shall no longer be exercisable)
and the only rights hereunder shall be those as to which the option was properly
exercised before such termination.
(d) Dissolution: If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved in
a Business Relationship with the Company, this option shall immediately
terminate as of the date of such event (and shall thereafter not be exercisable
to any extent whatsoever), and the only rights hereunder shall be those as to
which this option was properly exercised before such dissolution or other event.
6. Partial Exercise. This option may be exercised in part at any time
and from time to time within the above limits, except that this option may not
be exercised for a fraction of a share unless such exercise is with respect to
the final installment of stock subject to this option and cash in lieu of a
fractional share must be paid, in accordance with Paragraph 13(G) of the Plan,
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. Payment of Price.
(a) Form of Payment: The option price shall be paid in
the following manner:
(i) in cash or by check;
(ii) subject to paragraph 7(b) below, by delivery of
previously-held shares of Common Stock or the withholding from the
shares of Common Stock otherwise deliverable upon exercise of an Option
shares having a fair market value (as determined by the Committee)
equal as of the date of exercise to the option price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a sufficient amount of the
proceeds from the sale of the Option Shares and an instruction to the
broker or selling agent to pay that amount to the Company; or
(iv) by any combination of the foregoing.
(b) Limitations on Payment by Delivery of Common Stock: If the
Optionee delivers Common Stock held by the Optionee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Optionee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to
<PAGE>
the extent that the Optionee paid for the Option Shares by delivery of Old
Stock, in addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Optionee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Optionee free of any substantial risk of forfeiture
for at least six months.
(c) Permitted Payment by Recourse Note: In addition, if this
paragraph is initialed below by the person signing this Agreement on behalf of
the Company, the option price may be paid by delivery of the Optionee's personal
recourse promissory note bearing interest payable not less than annually at the
applicable Federal rate, as defined in Section 1274(d) of the Code.
----------
(initials)
8. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company, or to such transfer agent as
the Company shall designate. Such notice shall state the election to exercise
this option and the number of Option Shares for which it is being exercised and
shall be signed by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Optionee
and if the Optionee shall so request in the notice exercising this option, shall
be registered in the name of the Optionee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 5 hereof, by any person or persons other than the Optionee, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise this option.
9. Option Not Transferable. This option is not transferable or
assignable except by will or by the laws of descent and distribution or pursuant
to a valid domestic relations order. Except as set forth in the preceding
sentence, during the Optionee's lifetime, only the Optionee can exercise this
option.
10. No Obligation to Exercise Option. The grant and acceptance of
this option imposes no obligation on the Optionee to exercise it.
11. No Obligation to Continue Business Relationship. Neither the
Plan, this Agreement, nor the grant of this option imposes any obligation on the
Company or any Related Corporation to continue to maintain a Business
Relationship with the Optionee.
12. No Rights as Stockholder until Exercise. The Optionee shall have no
rights as a stockholder with respect to the Option Shares until such time as the
Optionee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the number of
<PAGE>
shares for which this option is to be so exercised in accordance with
Section 9. Except as is expressly provided in the Plan with respect to certain
changes in the capitalization of the Company, no adjustment shall be made
for dividends or similar rights for which the record date is prior to such
date of exercise.
13. Capital Changes and Business Successions. The Plan contains
provisions covering the treatment of options in a number of contingencies such
as stock splits and mergers. Provisions in the Plan for adjustment with respect
to stock subject to options and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.
14. Withholding Taxes. If the Company or any Related Corporation in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Optionee hereby agrees that the Company or any Related
Corporation may withhold from the Optionee's wages or other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
15. Provision of Documentation to Employee. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
16. Miscellaneous.
(a) Notices: All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth below. The addresses
for such notices may be changed from time to time by written notice given in the
manner provided for herein.
(b) Entire Agreement; Modification: This Agreement constitutes
the entire agreement between the parties relative to the subject matter hereof,
and supersedes all proposals, written or oral, and all other communications
between the parties relating to the subject matter of this Agreement. This
Agreement may be modified, amended or rescinded only by a written agreement
executed by both parties.
(c) Severability: The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
<PAGE>
(d) Successors and Assigns: This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations set forth in Section 10
hereof.
(e) Governing Law: This Agreement shall be governed by and
interpreted in accordance with the laws of the [state], without giving effect to
the principles of the conflicts of laws thereof. The preceding choice of law
provision shall apply to all claims, under any theory whatsoever, arising out of
the relationship of the parties contemplated herein.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
VERSATILITY INC.
11781 Lee Jackson Memorial Highway
____________________________ Suite 600
Optionee Fairfax, VA 22033
____________________________ By:____________________________
Print Name of Optionee [Name of officer]
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Street Address Title
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City State Zip Code
Exhibit 4.8
VERSATILITY INC.
1996 Employee Stock Purchase Plan
Enrollment/Authorization Form
Please complete the Employee Information and the appropriate section below.
================================================================================
EMPLOYEE INFORMATION (Please print)
Name:__________________________________________________________________
First Middle Last
Home
Address:_______________________________________________________________
Number Street
-----------------------------------------------------------------------
City State Zip
Soc. Sec. #:___________________________________________________________
================================================================================
ENROLL IN EMPLOYEE STOCK PURCHASE PLAN
____ Enroll ____ Re-Enroll
I wish to enroll or re-enroll in the Employee Stock Purchase Plan. I
have received and read a copy of the Employee Stock Purchase Plan and
Prospectus. I understand that so long as I remain eligible, I will
remain in the Plan until I file a new form to withdraw. In accordance
with Articles 10 and 14 of the Plan, all unused payroll deductions will
be refunded without interest to me upon withdrawal or termination of
participation in the Plan. I hereby authorize the purchase of Common
Stock on my behalf in accordance with the terms of the Plan.
Percentage to be deducted from TOTAL PAY: ______%
(Specify percentage not less than 1% nor more than 10% in whole numbers
only)
If you wish your Stock Purchase Plan Account to be opened as a joint
account and stock to be issued to you and another individual as joint
tenants with right of survivorship, print additional name:
<PAGE>
-----------------------------------------------------------------------
First Middle Last
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Employee Signature Date
================================================================================
CHANGE PAYROLL DEDUCTION PERCENTAGE
Please change my payroll deduction percentage to ___% effective as of
the [ ] May 1, [ ] November 1 Payment Period.
--------------------------------------- -------------------
Employee Signature Date
================================================================================
WITHDRAW FROM EMPLOYEE STOCK PURCHASE PLAN
I wish to withdraw from the Employee Stock Purchase Plan. Please
discontinue payroll deductions as of ____/____/____ or if not
administratively possible, as of the following pay period. I understand
that any funds accumulated during the current Payment Period will be
returned to me, without interest.
---------------------------------------- -------------------
Employee Signature Date
================================================================================
THIS AUTHORIZATION REVOKES ALL PRIOR AUTHORIZATIONS
Return this completed form to Donald C. Yount, Jr.,
Senior Vice President, Finance and Chief Financial Officer
Versatility Inc.
11781 Lee Jackson Memorial Highway
Seventh Floor
Fairfax, VA 22033
Exhibit 4.11
NPRI, INC.
Non-Qualified Stock Option Agreement
NPRI, Inc., a Delaware corporation (the "Company"), hereby grants as of
the 17th day of January, 1996 to Louis Venezia (the "Optionee"), an option
to purchase a maximum of 320,000 shares (the "Option Shares") of its Common
Stock, $.01 par value ("Common Stock"), at the price of $.80 per share,
on the following terms and conditions:
1. Grant as Non-Qualified Option; Other Options. This option shall be
treated for federal income tax purposes as a Non-Qualified Option (rather than
an incentive stock option). This option is granted subsequent to the merger of
NPRI, Inc., a Virginia corporation, with NPRI, Inc., a Delaware corporation, and
the aggregate number of shares granted hereto shall not be subject to adjustment
by reason of such merger. This option is in addition to any other options
heretofore or hereafter granted to the Optionee by the Company or any present or
future parent or subsidiary of the Company (a "Related Corporation"), but a
duplicate original of this instrument shall not effect the grant of another
option.
2. Vesting of Option if Business Relationship Continues. This Option
shall be immediately exercisable on the date of grant and may be exercised up to
and including the date which is five years from the date this option is granted.
3. Termination of Business Relationship.
(a) Termination Other than for Cause: If the Optionee's
Business Relationship with the Company and all Related Corporations is
terminated, other than by reason of death, disability or dissolution as defined
in Section 4 or termination for Cause as defined in Section 3(c), no further
installments of this option shall become exercisable, and this option shall
terminate (and may no longer be exercised) after the passage of three months
from the date the Business Relationship ceases, but in no event later than the
scheduled expiration date. In such a case, the Optionee's only rights hereunder
shall be those which are properly exercised before the termination of this
option. For purposes of this Agreement, "Business Relationship" shall include
the continuos service of the Optionee to the Company or a Related Corporation in
the capacity of an employee, officer, director or consultant.
(b) Termination for Cause: If the Optionee's Business
Relationship with the Company is terminated for Cause (as defined in Section
4(c)), this option shall terminate ninety days after the Optionee's receipt of
written notice of such termination and shall thereafter not be exercisable to
any extent whatsoever.
(c) Definition of Cause: "Cause" shall mean conduct involving
one or more of the following: (i) the substantial and continuing failure of the
Optionee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of the Optionee's
Business Relationship with the Company; (ii) disloyalty, gross negligence,
willful misconduct, dishonesty or breach of fiduciary duty to the Company or
Related
<PAGE>
-2-
Corporation; (iii) the commission of an act of embezzlement or fraud;
(iv) deliberate disregard of the rules or policies of the Company or Related
Corporation which results in direct or indirect loss, damage or injury to the
Company or Related Corporation; (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or Related Corporation; or
(vi) the commission of an act which constitutes unfair competition with the
Company or Related Corporation or which induces any customer or supplier to
break a contract with the Company or Related Corporation.
4. Death; Disability; Dissolution.
(a) Death: If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Optionee's estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 8, at any time within 180 days
after the date of death, but not later than the scheduled expiration date.
(b) Disability: If the Optionee is a natural person whose
Business Relationship with the Company is terminated by reason of his or her
disability (as defined in the Plan), this option may be exercised, to the extent
otherwise exercisable on the date the Business Relationship was terminated, at
any time within 180 days after such termination, but not later than the
scheduled expiration date.
(c) Effect of Termination: At the expiration of such 180-day
period provided in paragraph (a) or (b) of this Section 4 or the scheduled
expiration date, whichever is the earlier, this option shall terminate (and
shall no longer be exercisable) and the only rights hereunder shall be those as
to which the option was properly exercised before such termination.
(d) Dissolution: If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved in
a Business Relationship with the Company, this option shall immediately
terminate as of the date of such event (and shall thereafter not be exercisable
to any extent whatsoever), and the only rights hereunder shall be those as to
which this option was properly exercised before such dissolution or other event.
5. Partial Exercise. This option may be exercised in part at any time
and from time to time within the above limits, except that this option may not
be exercised for a fraction of a share unless such exercise is with respect to
the final installment of stock subject to this option and cash in lieu of a
fractional share must be paid to permit the Optionee to exercise completely such
final installment. Any fractional share with respect to which an installment of
this option cannot be exercised because of the limitation contained in the
preceding sentence shall remain subject to this option and shall be available
for later purchase by the Optionee in accordance with the terms hereof.
<PAGE>
-3-
6. Payment of Price.
(a) Form of Payment: The option price shall be paid in
the following manner:
(i) in cash or by check;
(ii) subject to paragraph 6(b) below, by delivery of
previously-held shares of Common Stock or the withholding from the
shares of Common Stock otherwise deliverable upon exercise of an Option
shares having a fair market value (as determined by the Committee)
equal as of the date of exercise to the option price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a sufficient amount of the
proceeds from the sale of the Option Shares and an instruction to the
broker or selling agent to pay that amount to the Company; or
(iv) by any combination of the foregoing.
(b) Limitations on Payment by Delivery of Common Stock: If the
Optionee delivers Common Stock held by the Optionee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Optionee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Optionee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Optionee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Optionee free of any substantial risk of forfeiture
for at least six months.
7. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company, or to such transfer agent as
the Company shall designate. Such notice shall state the election to exercise
this option and the number of Option Shares for which it is being exercised and
shall be signed by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Optionee
and if the Optionee shall so request in the notice exercising this option, shall
be registered in the name of the Optionee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 4 hereof, by any person or persons other than the Optionee, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise this option.
<PAGE>
-4-
8. Option Not Transferable. This option is not transferable or
assignable except by will or by the laws of descent and distribution. Except as
set forth in the preceding sentence, during the Optionee's lifetime, only the
Optionee can exercise this option.
9. No Obligation to Exercise Option. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
10. No Obligation to Continue Business Relationship. Neither this
Agreement, nor the grant of this option imposes any obligation on the Company or
any Related Corporation to continue to maintain a Business Relationship with the
Optionee.
11. No Rights as Stockholder until Exercise. The Optionee shall have no
rights as a stockholder with respect to the Option Shares until such time as the
Optionee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the number of shares for which this option
is to be so exercised in accordance with Section 7.
12. Adjustments. Upon the occurrence of any of the following events, an
optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
(a) Stock Dividends and Stock Splits: If the shares
of Common Stock shall be subdivided or combined into a greater
or smaller number of shares or if the Company shall issue any
shares of Common Stock as a stock dividend on its outstanding
Common Stock, the number of shares of Common Stock deliverable
upon the exercise of Options shall be appropriately increased
or decreased proportionately, and appropriate adjustments
shall be made in the purchase price per share to reflect such
subdivision, combination or stock dividend.
(b) Consolidations or Mergers: If the Company is to
be consolidated with or acquired by another entity in a merger
or other reorganization in which the holders of the
outstanding voting stock of the Company immediately preceding
the consummation of such event, shall, immediately following
such event, hold, as a group, less than a majority of the
voting securities of the surviving or successor entity, or in
the event of a sale of all or substantially all of the
Company's assets or otherwise (each, an "Acquisition"), the
Committee or the board of directors of any entity assuming the
obligations of the Company hereunder (the "Successor Board"),
shall, as to outstanding Options, either (i) make appropriate
provision for the continuation of such Options by substituting
on an equitable basis for the shares then subject to such
Options either (a) the consideration payable with respect to
the outstanding shares of Common Stock in connection with the
Acquisition, (b) shares of stock of the surviving or successor
corporation or (c) such other securities as the Successor
Board deems appropriate, the fair market value of which shall
not materially exceed the fair market value of the shares of
Common Stock subject to such Options immediately
<PAGE>
-5-
preceding the Acquisition; or (ii) upon written notice to
the optionees, provide that all Options must be exercised, to
the extent then exercisable or to be exercisable as a result
of the Acquisition, within a specified number of days of the
date of such notice, at the end of which period the Options
shall terminate; or (iii) terminate all Options in exchange
for a cash payment equal to the excess of the fair market
value of the shares subject to such Options (to the extent
then exercisable or to be exercisable as a result of the
Acquisition) over the exercise price thereof.
(c) Recapitalization or Reorganization: In the event
of a recapitalization or reorganization of the Company (other
than a transaction described in subparagraph B above) pursuant
to which securities of the Company or of another corporation
are issued with respect to the outstanding shares of Common
Stock, an optionee upon exercising an Option shall be entitled
to receive for the purchase price paid upon such exercise the
securities he or she would have received if he or she had
exercised such Option prior to such recapitalization or
reorganization.
(d) Modification of ISOs: Notwithstanding the
foregoing, any adjustments made pursuant to subparagraphs A, B
or C with respect to ISOs shall be made only after the
Committee, after consulting with counsel for the Company,
determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in
Section 424 of the Code) or would cause any adverse tax
consequences for the holders of such ISOs. If the Committee
determines that such adjustments made with respect to ISOs
would constitute a modification of such ISOs or would cause
adverse tax consequences to the holders, it may refrain from
making such adjustments.
(e) Dissolution or Liquidation: In the event of the
proposed dissolution or liquidation of the Company, each
Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such
other conditions as shall be determined by the Committee.
(f) Issuances of Securities: Except as expressly
provided herein, no issuance by the Company of shares of stock
of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of
shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of
the Company.
(g) Fractional Shares: No fractional shares shall
be issued under the Plan and the optionee shall receive from
the Company cash in lieu of such fractional shares.
(h) Adjustments: Upon the happening of any of the
events described in subparagraphs A, B or C above, the class
and aggregate number of shares set
<PAGE>
-6-
forth in paragraph 4 hereof that are subject to Stock Rights
which previously have been or subsequently may be granted
under the Plan shall also be appropriately adjusted to reflect
the events described in such subparagraphs. The Committee or
the Successor Board shall determine the specific adjustments
to be made under this paragraph 12 and its determination shall
be conclusive.
13. Withholding Taxes. If the Company or any Related Corporation in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Optionee hereby agrees that the Company or any Related
Corporation may withhold from the Optionee's wages or other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
14. Provision of Documentation to Employee. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
15. Miscellaneous.
(a) Notices: All notices hereunder shall be in writing and shall
be deemed given when sent by certified or registered mail, postage prepaid,
return receipt requested, to the address set forth below. The addresses for
such notices may be changed from time to time by written notice given in the
manner provided for herein.
(b) Entire Agreement; Modification: This Agreement constitutes the
entire agreement between the parties relative to the subject matter hereof, and
supersedes all proposals, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement. This Agreement may
be modified, amended or rescinded only by a written agreement executed by
both parties.
(c) Severability: The invalidity, illegality or unenforceability of
any provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision.
(d) Successors and Assigns: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Section 8 hereof.
<PAGE>
-7-
(e) Governing Law: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware, without giving
effect to the principles of the conflicts of laws thereof. The preceding choice
of law provision shall apply to all claims, under any theory whatsoever, arising
out of the relationship of the parties contemplated herein.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
NPRI, INC.
/s/ Louis Venezia 11781 Lee Jackson Memorial Highway
____________________________ Suite 600
Optionee Fairfax, VA 22033
Louis Venezia /s/ Ronald R. Charnock
____________________________ By:____________________________
Print Name of Optionee Ronald R. Charnock
President
____________________________
Street Address
____________________________
City State Zip Code
Exhibit 5.1
March 27, 1997
Versatility Inc.
11781 Lee Jackson Memorial Highway
Seventh Floor
Fairfax, VA 22033
Re: Registration Statement on Form S-8 Relating to the 1995 Employee
Stock Option Plan, 1995 Incentive Stock Option Plan, 1996 Stock
Plan and 1996 Employee Stock Purchase Plan (collectively, the
"Plans") of Versatility Inc. (the "Company")
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by the Company on or about March 27,
1997 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to an aggregate of 1,448,160 shares of Common Stock,
$.01 par value per share, of the Company issuable pursuant to the Plans (the
"Shares").
We have examined, are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the SecondAmended and Restated
Certificate of Incorporation and Amended and Restated By-Laws of the Company,
the minute books and stock records of the Company and originals of such other
documents, certificates and proceedings as we have deemed necessary for the
purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the related Plans according to the terms of any option or purchase right granted
thereunder and duly authorized by the Company's Board of Directors or
Compensation Committee and/or any related agreements with the Company, the
shares will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ TESTA, HURWITZ & THIBEAULT, LLP
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Versatility Inc. on Form
S-8 of our report dated June 21, 1996 (except for Note 13 paragraphs 1 through 5
as to which the date is October 3, 1996 and Note 13 paragraphs 6 through 8 as to
which the date is October 31, 1996), included in Versatility Inc.'s prospectus
in Registration Statement No. 333-13771 on Form S-1, as amended.
DELOITTE & TOUCHE LLP
Washington, DC
March 25, 1997
