EXHIBIT 99.3
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
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Exhibit 99.3
NETOPS CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of ___________ (the "Effective Date") is between
NetOps Corporation, a Delaware corporation (the "Corporation"),
and___________________ (the "Optionee").
RECITALS
The Corporation and the Optionee desire to enter into an agreement
providing for the grant by the Corporation to the Optionee of an option to
purchase shares of the Corporation's common stock, no par value (the "Common
Stock"). All of such shares of Common Stock and all shares of Common Stock
hereafter acquired by the Optionee are referred to in this Agreement as
"Employee Stock."
The option granted hereunder is granted pursuant to the NetOps
Corporation's 1997 Long-Term Incentive Plan' a copy of which is attached hereto
as Exhibit A (the "Plan"), and is intended to be considered a "non-qualified
stock option" thereunder. The Option is subject to the terms of the Plan and in
the event of any inconsistencies between the Plan and this Agreement, the Plan
will control. Capitalized terms used herein not otherwise defined herein shall
have the same meaning as in the Plan.
The parties agree as follows:
1. Award of Option. Subject to the terms and conditions set forth in this
Agreement and the Plan, the Corporation hereby grants to Optionee an option to
purchase from the Corporation ___________ shares of the Corporation's Common
Stock upon payment to the Corporation of an exercise price of $_________ per
share (the "Option"). The Optionee should consult with his or her tax advisor
concerning the tax aspects of this Option award, its exercise and the subsequent
sale of the shares acquired.
2. Term and Termination.
a. Term. Unless the Option terminates pursuant to subsection 2.b. or
is subject to accelerated vesting pursuant to Section 3, the number of shares
for which the Option may be exercised will vest in accordance with the following
schedule:
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Date Additional Shares
Exercisable as of Such Date
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b. Termination of Employment. In the event that the employment of
the Optionee with the Corporation is terminated for any reason (including,
without limitation, retirement), the Optionee may exercise the Option, with
respect to the number of shares for which the Optionee is on that date vested,
within ninety (90) days after the date of such termination; provided, however,
that:
(i) If such termination is because of the Optionee's death or
disability, then the Option may be exercised, with respect to the number of
shares for which the Optionee is vested at the date of termination, by the
Optionee or the Optionee's estate or other successor, as the case may be
(hereinafter such person is referred to as the "Optionee"), within one (1) year
after the date of Optionee's termination on account of death or disability. In
the event of an exercise under the terms of this subsection by someone other
than the original Optionee, appropriate proof of such person's authority to act
on behalf of the Optionee or his or her estate must be provided to the
Corporation.
(ii) If Optionee's employment is terminated for "cause" the
Option shall terminate immediately. For purposes of this Agreement, "cause"
shall be considered as the occurrence of any of the following events: (i)
Optionee's refusal or intentional failure to carry out the reasonable directives
of the Board of Directors or Officers of the Corporation; (ii) Optionee's
habitual gross neglect of a substantial portion of his duties with the
Corporation; and (iii) the Optionee's conviction of a felony involving fraud,
theft, or embezzlement.
(iii) In no event (including by death of the Optionee) may the
Option be exercised after the tenth anniversary of this Agreement.
3. Acceleration. Notwithstanding the provisions in subsection 2.a., the
Option shall vest and become exercisable for all shares for which the Option
would otherwise be exercisable as of the first date set forth on the table in
subsection 2.a which next follows the date of the occurrence of one of the
following events (such events are hereinafter collectively referred to as the
"Transfer"): (i) the sale of all or substantially all of the assets of the
Corporation, or (ii) the sale of all or substantially all of the issued and
outstanding stock of the Corporation, or (iii) the merger of the Corporation
with or into another corporation where the Corporation is not the surviving
corporation. The purpose and the intent of this subsection is to permit the
Optionee to participate in such Transfer with respect to all shares vested or
vesting as of the Transfer date pursuant to this Section 3. The Corporation will
provide the Optionee with ten (10) days advanced written notice of any such
Transfer so as to enable the Optionee to exercise the Option. Any exercise
pursuant to this subsection shall be contingent and effective upon the closing
or consummation of the transaction giving rise to acceleration hereunder.
4. Exercise Procedure. The Optionee, or the Optionee's estate or other
successor in the event contemplated by subsection 2.b., may exercise this Option
by giving written notice of exercise of the Option to the Corporation at its
principal office on the Notice of Exercise form annexed hereto as Exhibit B to
this Agreement. Such notice shall state the number of whole shares with respect
to which this Option is being exercised, shall be accompanied by a payment in an
amount equal to the product of such number of whole shares multiplied by the
exercise price per share (the "Exercise Price"). Such Exercise Price shall be
payable either: (i) in cash or by certified or cashier's check, (ii) by transfer
to the Corporation of Common Stock of the
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Corporation owned by the Optionee having a Fair Market Value (as defined in the
Plan), as of the date the Option is exercised, equal to such Exercise Price, or
(iii) by a combination of (i) and (ii).
5. Lapse. Subject to the provisions in Sections 2 and 3, the Option shall
lapse and be of no further force or effect on or after the tenth anniversary of
the Effective Date, if it is not exercised before that anniversary.
6. Other Conditions and Limitations.
a. Transfer of Option Prohibited. The Option may not be sold or
otherwise transferred by the Optionee. The Option is granted on the condition
that any purchase of Employee Stock hereunder shall be for investment purposes
only, and not with a view to resale or distribution. At the time of the exercise
of the Option, the Optionee shall execute such documents as the Corporation may
require to implement the foregoing conditions and to acknowledge the Optionee's
familiarity with restrictions on the resale of the shares under applicable
securities laws.
7. No Rights as Shareholder. Before the exercise of the Option and the
subsequent issuance of the corresponding stock certificate, the Optionee will
have no rights as shareholder of the Corporation with respect to the shares
subject to the Option.
8. Dilution Protection. If the Corporation shall at any time pay a stock
dividend or distribution on its Common Stock or if the Corporation shall at any
time split, subdivide or combine the outstanding shares of its Common stock, the
number of shares for which this Option may be exercised and the exercise price
per share shall be adjusted proportionately. Any such adjustment shall be
effective on the record date for the split, subdivision or combination.
9. Termination of Restrictions. The restrictions on the transfer of
Employee Stock will continue until such time as a class of shares of the
Corporation's capital stock is registered under the Securities Exchange Act of
1934, as amended.
10. Legend. The certificates representing the Employee Stock will bear a
legend similar to the following:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
STOCK OPTION AGREEMENT BETWEEN NETOPS CORPORATION AND THE ORIGINAL
HOLDER HEREOF, A COPY OF WHICH MAY BE OBTAINED AT NETOPS
CORPORATION'S PRINCIPAL PLACE OF BUSINESS.
11. Definition of Employee Stock. For the purposes of this Agreement,
Employee Stock shall continue to be Employee Stock in the hands of any holder
other than the Optionee (except for the Corporation and purchasers after the
restrictions on transfer have terminated pursuant to Section 9), and each such
other holder of Employee Stock will succeed to all rights and obligations
attributable to the Optionee as holder of Employee Stock hereunder. Employee
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Stock will also include shares of the Corporation's capital stock issued with
respect to shares of Employee Stock by ways of stock split, stock dividend or
other recapitalization.
12. Notices. Any notice provided for in this Agreement must be in writing,
and must be personally delivered, or mailed first class mail, certified, return
receipt requested, to the recipient at its most current address indicated below
or at another address provided to the other party by adequate notice conforming
to this Section:
To the Corporation: 501 Washington Avenue
Pleasantville, NY 10570
To the Optionee: At the most recent address available in the
Corporation's employment records.
Any notice under this Agreement shall be deemed given when received by the
addressee.
13. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability will not affect
any other provision, and this Agreement shall be reformed and construed as if
such invalid provision had never been contained herein.
14. Complete Agreement. This Agreement embodies the complete agreement and
understanding of the parties and supersedes and pre-empts any prior
understandings, agreements or representation, written or oral, between the
parties, which may have related to the subject matter hereof in any way.
15. Successors and Assigns. This Agreement is intended to bind and inure
to the benefit of the Optionee, the Corporation, and their respective successors
and assigns.
16. Choice of Law. All questions concerning the construction, validity and
interpretation of this Agreement, will be governed by the laws of New York
State, without regard to the conflict of law rules thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement under seal on
the date first written above.
NETOPS CORPORATION
____________________________________________
Louis A. Steinberg, President
Optionee:
____________________________________________
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EXHIBIT A
NETOPS CORPORATION
1997 LONG-TERM INCENTIVE PLAN
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EXHIBIT B
NETOPS CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
NOTICE OF EXERCISE
The undersigned employee of NetOps Corporation (the "Corporation"),
pursuant to NetOps Corporation's 1997 Long-Term Incentive Plan (the "Plan"), and
pursuant to a Non-Qualified Incentive Stock Option Agreement dated as of 'hereby
agrees to purchase from the Corporation __________(1) shares of common stock, no
par value per share, of the Corporation ("Employee Stock") at an exercise price
of $__________ per share.
Optionee:_______________________________________________________________________
First Middle Last
(Print name exactly as it will appear on your stock certificate)
Social Security Number: __________- _________-__________
Address:________________________________________________________________________
The undersigned Optionee has delivered the following consideration to the
Corporation in exchange for the Employee Stock:
(1) $ ________________ in cash or by certified or bank cashier's check;
and/or
(2) _________________ shares of the Corporation's common stock, no par value per
share, having a fair market value (as defined in the Plan) of $_______________
as of __________,199_.
____________________________
Date:_______________________
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(1) No less than 100 shares may be purchased at one time unless the number
purchased is the total number that may then be purchased under the Option.
