Exhibit 4.4
NON-QUALIFIED STOCK OPTION AGREEMENT
OF
DATAMETRICS CORPORATION
THIS AGREEMENT, dated ____________, 19__, is made by and between Datametrics
Corporation, a Delaware corporation hereinafter referred to as "Company," and
_________________________, an employee of the Company, a Parent Corporation or
Subsidiary or a person maintaining a business relationship with the Company, a
Parent Corporation or a Subsidiary, hereinafter referred to as "Optionee":
WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase
shares of its $.01 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which are
hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined that
it would be to the advantage and best interest of the Company and its
shareholders to grant the Non-Qualified Option provided for herein to the
Optionee as an inducement to enter into or remain in the service of the Company,
its Parent Corporations or its Subsidiaries and as an incentive for increased
efforts during such service, and has advised the Company thereof and instructed
the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever the following terms are used in this Agreement, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates.
SECTION 1.1 BOARD
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"Board" shall mean the Board of Directors of the Company.
SECTION 1.2 CODE
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
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SECTION 1.3 COMMITTEE
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"Committee" shall mean the Stock Option Committee of the Board,
appointed as provided in the Plan.
SECTION 1.4 COMPANY
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"Company" shall mean Datametrics Corporation. In addition, "Company"
shall mean any corporation assuming, or issuing new employee stock options in
substitution for, the Option and Incentive Stock Options, outstanding under the
Plan, in a transaction to which Section 424(a) of the Code applies.
SECTION 1.5 DIRECTOR
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"Director" shall mean a member of the Board.
SECTION 1.6 EXCHANGE ACT
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
SECTION 1.7 OFFICER
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"Officer" shall mean an officer of the Company, as defined in Rule
16a-1(f) under the Exchange Act, as such Rule may be amended in the future.
SECTION 1.8 OPTION
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"Option" shall mean an option to purchase Common Stock of the
Company granted under the Plan. "Options" includes both Incentive Stock Options
and Non-Qualified Options.
SECTION 1.9 PARENT CORPORATION
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"Parent Corporation" shall mean any corporation in an unbroken chain
of corporations ending with the Company if each of the corporations other than
the Company then owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one (1) of the other
corporations in such chain.
SECTION 1.10 PLAN
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"Plan" shall mean the 1995 Stock Option Plan of Datametrics
Corporation.
SECTION 1.11 RULE 16b-3
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"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
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SECTION 1.12 SECRETARY
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"Secretary" shall mean the Secretary of the Company.
SECTION 1.13 SECURITIES ACT
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"Securities Act" shall mean the Securities Act of 1933, as
amended.
SECTION 1.14 SUBSIDIARY
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"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
SECTION 1.15 TERMINATION OF RELATIONSHIP
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"Termination of Relationship" shall mean the time when the
employee-employer relationship or other business relationship between the
Optionee and the Company, a Parent Corporation or a Subsidiary is terminated for
any reason, with or without cause, including, but not by way of limitation, a
termination by resignation, discharge, death or retirement, but excluding any
termination where there is a simultaneous reemployment by the Company, a Parent
Corporation or a Subsidiary. The Committee, in its absolute discretion, shall
determine the effect of all other matters and questions relating to Termination
of Relationship, including, but not by way of limitation, the question of
whether a Termination of Relationship resulted from a discharge for good cause,
and all questions of whether particular leaves of absence constitute
Terminations of Relationship.
ARTICLE II
GRANT OF OPTION
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SECTION 2.1 GRANT OF OPTION
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In consideration of the Optionee's agreement to remain in the employ
of or to continue a business relationship with the Company, its Parent
Corporations or its Subsidiaries and for other good and valuable consideration,
on the date hereof the Company irrevocably grants to the Optionee the option to
purchase any part or all of an aggregate of ________ shares of its $.01 par
value Common Stock upon the terms and conditions set forth in this Agreement.
SECTION 2.2 PURCHASE PRICE
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The purchase price of the shares of stock covered by the Option
shall be $_____ per share without commission or other charge.
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SECTION 2.3 CONSIDERATION TO COMPANY
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In consideration of the granting of this Option by the Company, the
Optionee agrees to render faithful and efficient services to the Company, a
Parent Corporation or a Subsidiary, with such duties and responsibilities as the
Company shall from time to time prescribe, for a period of at least one (1) year
from the date this Option is granted. Nothing in this Agreement or in the Plan
shall confer upon the Optionee any right to continue in the employ of or to
continue a business relationship with the Company, any Parent Corporation or any
Subsidiary or shall interfere with or restrict in any way the rights of the
Company, its Parent Corporations and its Subsidiaries, which are hereby
expressly reserved, to discharge the Optionee or to terminate such business
relationship at any time for any reason whatsoever, with or without cause.
SECTION 2.4 ADJUSTMENTS IN OPTION
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In the event that the outstanding shares of the stock subject to the
Option are changed into or exchanged for a different number or kind of shares of
the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split up, stock
dividend or combination of shares, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares as to which the Option, or
portions thereof then unexercised, shall be exercisable, to the end that after
such event the Optionee's proportionate interest shall be maintained as before
the occurrence of such event. Such adjustment in the Option shall be made
without change in the total price applicable to the unexercised portion of the
Option (except for any change in the aggregate price resulting from rounding-off
of share quantities or prices) and with any necessary corresponding adjustment
in the Option price per share. Any such adjustment made by the Committee shall
be final and binding upon the Optionee, the Company and all other interested
persons.
ARTICLE III
PERIOD OF EXERCISABILITY
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SECTION 3.1 COMMENCEMENT OF EXERCISABILITY
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(a) Except as the Committee may otherwise provide, no Option may be
exercised in whole or in part during the first year after such Option is
granted.
(b) Subject to the provisions of Sections 3.5 and 5.6, the Option
shall become exercisable in sixteen (16) cumulative quarterly installments of
one-sixteenth (1/16th) of the shares covered by the Option, the first such
installment to become exercisable one year after the date the Option is granted
and one additional installment to become exercisable every three months
thereafter.
(c) No portion of the Option which is unexercisable at Termination
of Relationship shall thereafter become exercisable.
(d) Notwithstanding any other provision of this Plan, in the case of
an Incentive Stock Option, the aggregate fair market value (determined at the
time the Incentive Stock Option is granted) of the shares of the Company's stock
with respect to which "incentive stock options" (within the meaning of Section
422 of the Code) are exercisable for the first time by the Optionee during any
calendar year (under the Plan
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and all other incentive stock option plans of the Company, any Subsidiary and
any Parent Corporation) shall not exceed $100,000.
SECTION 3.2 DURATION OF EXERCISABILITY
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The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
SECTION 3.3 EXPIRATION OF OPTION
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The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of five (5) years from the date the Option was
granted; or
(b) The time of the Optionee's Termination of Relationship unless
such Termination of Relationship results from his death, his retirement, his
disability or his being discharged not for good cause; or
(c) The expiration of three (3) months from the date of the
Optionee's Termination of Relationship by reason of his retirement or his being
discharged not for good cause, unless the Optionee dies within said three-month
period; or
(d) The expiration of one (1) year from the date of the Optionee's
Termination of Relationship by reason of his disability; or
(e) The expiration of one (1) year from the date of the Optionee's
death; or
(f) The effective date of either the merger or consolidation of the
Company with or into another corporation, or the acquisition by another
corporation or person of all or substantially all of the Company's assets or
eighty percent (80%) or more of the Company's then outstanding voting stock, or
the liquidation or dissolution of the Company, unless the Committee waives this
provision in connection with such transaction. At least ten (10) days prior to
the effective date of such merger, consolidation, acquisition, liquidation or
dissolution, the Committee shall give the Optionee notice of such event if the
Option has then neither been fully exercised nor become unexercisable under this
Section 3.3.
SECTION 3.4 ACCELERATION OF EXERCISABILITY
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In the event of the merger or consolidation of the Company with or
into another corporation, or the acquisition by another corporation or person of
all or substantially all of the Company's assets or eighty percent (80%) or more
of the Company's then outstanding voting stock, or the liquidation or
dissolution of the Company, the Committee may, in its absolute discretion and
upon such terms and conditions as it deems appropriate, provide by resolution,
adopted prior to such event and incorporated in the notice referred to in
Section 3.3(f), that at some time prior to the effective date of such event this
Option shall be exercisable as to all the shares covered hereby, notwithstanding
that this Option may not yet have become fully exercisable under Section 3.1(a);
provided, however, that this acceleration of exercisability shall not take place
if:
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(a) This Option becomes unexercisable under Section 3.3 prior to
said effective date; or
(b) In connection with such an event, provision is made for an
assumption of this Option or a substitution therefor of a new option by an
employer corporation or a parent or subsidiary of such corporation; and
provided, further, that nothing in this Section 3.4 shall make this Option
exercisable if it is otherwise unexercisable by reason of Section 5.6.
The Committee may make such determinations and adopt such rules and
conditions as it, in its absolute discretion, deems appropriate in connection
with such acceleration of exercisability, including, but not by way of
limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated
corporate transaction.
ARTICLE IV
EXERCISE OF OPTION
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SECTION 4.1 PERSON ELIGIBLE TO EXERCISE
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During the lifetime of the Employee, only he may exercise the Option
or any portion thereof, except for the exercisable portion of the Option which
may be transferred pursuant to a qualified domestic relations order under
Section 5.2 hereof. After the death of the Employee, any exercisable portion of
the Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the Employee's will or under the then applicable laws
of descent and distribution.
SECTION 4.2 PARTIAL EXERCISE
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Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
twenty-five (25) shares (or the minimum installment set forth in Section 3.1, if
a smaller number of shares) and shall be for whole shares only.
SECTION 4.3 MANNER OF EXERCISE
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The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion, stating that the Option or portion
is thereby exercised, such notice complying with all applicable rules
established by the Committee; and
(b) (i) Full payment (in cash or by check) for the shares with
respect to which such Option or portion is exercised; or
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(ii) With the consent of the Committee, (A) shares of the
Company's Common Stock owned by the Optionee duly endorsed for transfer to the
Company or (B) subject to the timing requirements of Section 4.4, shares of the
Company's Common Stock issuable to the Optionee upon exercise of the Option,
with a fair market value (as determined under Section 4.2(b) of the Plan) on the
date of Option exercise equal to the aggregate purchase price of the shares with
respect to which such Option or portion is exercised; or
(iii) With the consent of the Committee, any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii); and
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion, stating that the shares of stock
are being acquired for his own account, for investment and without any present
intention of distributing or reselling said shares or any of them except as may
be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such
Option or portion will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the Company if
any sale or distribution of the shares by such person is contrary to the
representation and agreement referred to above. The Committee may, in its
absolute discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel acceptable to it to
the effect that any subsequent transfer of shares acquired on an Option exercise
does not violate the Securities Act, and may issue stop-transfer orders covering
such shares. Share certificates evidencing stock issued on exercise of this
Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such exercise
have been registered under the Securities Act, and such registration is then
effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of
all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; with the consent of the Committee, (i)
shares of the Company's Common Stock owned by the Optionee duly endorsed for
transfer, or (ii) subject to the timing requirements of Section 4.4, shares of
the Company's Common Stock issuable to the Optionee upon exercise of the Option,
valued in accordance with Section 4.2(b) of the Plan at the date of Option
exercise, may be used to make all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant
to Section 4.1 by any person or persons other than the Optionee, appropriate
proof of the right of such person or persons to exercise the Option.
SECTION 4.4 CERTAIN TIMING REQUIREMENTS
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Shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option may be used to satisfy the Option price or the tax
withholding consequences of such exercise only (i) during the period beginning
on the third (3rd) business day following the date of release of the quarterly
or annual summary statement of sales and earnings of the Company and ending on
the twelfth (12th) business day following such date or (ii) pursuant to an
irrevocable written election by the Optionee to use shares of the
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Company's Common Stock issuable to the Optionee upon exercise of the Option to
pay all or part of the Option price or the withholding taxes (subject to the
approval of the Committee) made at least six (6) months prior to the payment of
such Option price or withholding taxes.
SECTION 4.5 CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES
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The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges
on which such class of stock is then listed; and
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer corporation) of
all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
SECTION 4.6 RIGHTS AS SHAREHOLDER
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The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
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SECTION 5.1 ADMINISTRATION
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The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon the
Optionee, the Company and all other
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interested persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
the Plan or the Option. The Board shall have no right to exercise any of the
rights or duties of the Committee under the Plan and this Agreement.
SECTION 5.2 OPTION NOT TRANSFERABLE
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Neither the Option nor any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution or pursuant to a qualified domestic relations order (as defined by
the Code or Title I of the Employee Retirement Income Security Act, and the
rules and regulations thereunder).
SECTION 5.3 SHARES TO BE RESERVED
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The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
SECTION 5.4 NOTICES
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Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Optionee shall, if
the Optionee is then deceased, be given to the Optionee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall be
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
SECTION 5.5 TITLES
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Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
SECTION 5.6 SHAREHOLDER APPROVAL
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The Plan will be submitted for approval by the Company's
shareholders within twelve (12) months after the date the Plan was initially
adopted by the Board. This Option may not be exercised to any extent by anyone
prior to the time when the Plan is approved by the shareholders, and if such
approval has not been obtained by the end of said twelve-month period, this
Option shall thereupon be cancelled and become null and void. The Company shall
take such actions as may be necessary to satisfy the requirements of Rule 16b-
3(b).
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SECTION 5.7 CONSTRUCTION
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This Agreement shall be administered, interpreted and enforced under
the laws of the State of California.
SECTION 5.8 CONFORMITY TO SECURITIES LAWS
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The Optionee acknowledges that the Plan is intended to conform to
the extent necessary with all provisions of the Securities Act and the Exchange
Act and any and all regulations and rules promulgated by the Securities and
Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Option is granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and this Agreement shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations. Without
limiting the generality of the foregoing, Optionee acknowledges that Rule 16b-
3(c)(1) precludes shares of stock acquired upon exercise of an Option granted to
an Officer or other person subject to Section 16b-3 from being sold or otherwise
disposed of for a minimum of six months from the date the Option was granted.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
DATAMETRICS CORPORATION
By
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President
By
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Secretary
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Optionee
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Address
Optionee's Taxpayer Identification Number:
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