Exhibit 4.4
-----------
DOS LTD.
NONSTATUTORY STOCK OPTION AGREEMENT
AGREEMENT is effective as of _______________________ between DOS Ltd., a
Bermuda corporation (hereinafter referred to as "DOSL") and
______________________ ("Employee").
To carry out the purposes of the DOS Ltd. STOCK OPTION PLAN (as amended and
as it may be further amended from time to time, the "Plan"), by affording
Employee the opportunity to purchase shares of Class A Common Stock, $.01 par
value, of DOSL ("Stock"), and in consideration of the mutual agreements and
other matters set forth herein and in the Plan, DOSL and Employee hereby agree
as follows:
1. Grant of Option. DOSL hereby irrevocably grants to Employee the right
---------------
and option ("Option") to purchase all or any part of an aggregate of
___________________ (spelled out) shares of Stock, on the terms and conditions
set forth herein and in the Plan, which Plan is incorporated herein by reference
as a part of this Agreement. This Option shall not be treated as an incentive
stock option within the meaning of section 422(b) of the Internal Revenue Code
of 1986, as amended (the "Code").
2. Purchase Price. The purchase price of Stock purchased pursuant to the
--------------
exercise of this Option shall be $_____________ per share.
3. Exercise of Option. Subject to the earlier expiration of this Option
------------------
as herein provided, this Option may be exercised, by written notice to DOSL at
its principal executive office addressed to the attention of its Chief Executive
Officer, which notice shall state the number of shares with respect to which the
Option is being exercised, and be accompanied by either Common Stock or a
cashier's check or money order payable to DOS Ltd. in the full amount of the
purchase price. At any time and from time to time after the date of grant
hereof, but, except as otherwise provided below, this Option shall not be
exercisable for more than a percentage of the aggregate number of shares subject
to this Option determined by the number of full years from the date of grant
hereof to the date of such exercise, in accordance with the following schedule:
Percentage of Shares
Number of Years That May be Purchased
--------------- ---------------------
0-2 years 0%
3 years 33%
4 years 66%
5 years or more 100%
This Option is not transferable by Employee otherwise than by will or the
laws of descent and distribution, and may be exercised only by employee during
Employee's lifetime and while employee remains an employee of DOSL, except that:
(a) If Employee's employment with DOSL terminates for any reason of
disability (within the meaning of section 22(e)(3) of the Code), this
option may be exercised by Employee (or Employee's estate or the
person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee) at any
time during the period of one year following such termination, but
only as to the number of shares Employee was entitled to purchase
hereunder as of the date Employee's employment so terminates.
(b) If Employee dies while in the employ of DOSL, Employee's estate or the
person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Employee, may
exercise this Option at any time during the period of one year
following the date of Employee's death, but only as to the number of
shares Employee was entitled to purchase hereunder as of the date of
Employee's death.
(c) If Employee's employment with DOSL terminates for any reason other
than as described in (a) or (b) above, unless Employee voluntarily
terminates without the written consent of DOSL or is terminated for
cause, this Option may be exercised by Employee at any time during the
period of three months following such termination, or by Employee's
estate (or the person who acquires this Option by will or the laws of
descent and distribution or otherwise by reason of the death of
Employee) during a period of one year following Employee's death if
Employee dies during such three-month period, but in each case only as
to the number of shares Employee was entitled to purchase hereunder
upon exercise of this Option as of the date Employee's employment so
terminates. For purposes of this Agreement, "cause" will include, but
not be limited to, gross negligence, wilful misconduct, theft,
violation of a substance abuse policy/drug testing policy, and
insubordination. It shall also include employment, or Employee's
final conviction of a felony or of a misdemeanor involving moral
turpitude.
This Option shall not be exercisable in any event after the expiration of
seven years from the date of grant hereof, and, the purchase price of shares as
to which this Option is exercised shall be paid in full at the time of exercise
(a) in cash including check, bank draft or money order payable to the order of
DOS Ltd., (b) by delivering to DOSL shares of Stock having a fair market value
equal to the purchase price, or (c) any combination of cash or Stock. No
fraction of a share of Stock shall be issued by DOSL upon exercise of an Option
or accepted by DOSL in payment of the purchase price thereof; rather, Employee
shall provide a cash payment for such amount as is necessary to effect the
issuance and acceptance of only whole shares of Stock. Unless and until a
certificate or certificates representing such shares shall have been issued by
DOSL to Employee, Employee (or the person permitted to exercise this Option in
the event of Employee's death) shall not be or have any of the rights
2
or privileges of a shareholder of DOSL with respect to shares acquirable upon an
exercise of this Option.
4. Withholding of Tax. To the extent that the exercise of this Option or
------------------
the disposition of shares of Stock acquired by exercise of this Option results
in compensation income to Employee for federal or state income tax purposes,
Employee shall deliver to DOSL at the time of such exercise or disposition such
amount of money or, if the Employee so elects (which election shall be subject
to the Committee's sole discretion to consent to or disapprove of, shall be
irrevocable and, if Employee is subject to Section 16 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), shall be subject to such
administrative rules as the committee shall determine to assure compliance with
Rule 16b-3 under the Exchange Act), shares of Stock, AS DOSL may require to meet
its obligation under applicable tax laws or regulations, and, if Employee fails
to do so, DOSL is authorized to withhold from any cash or Stock remuneration
then or thereafter payable to Employee any tax required to be withheld by reason
of such resulting compensation income. Upon an exercise of this Option, DOSL is
further authorized to satisfy any such withholding requirement out of any cash
or, if the Employee so elects (which election shall be subject to the
Committee's sole discretion to consent to or disapprove of, shall be irrevocable
and, if Employee is subject to Section 16 of the 1934 Act, shall be subject to
such administrative rules as the Committee shall determine to assure compliance
with Rule 16b-3 under the 1934 Act), shares of Stock, distributable to Employee
upon such exercise.
5. Status of Stock. Employee understands that at the time of the
---------------
execution of this Agreement the shares of Stock to be issued upon exercise of
this Option have not been registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities law, and that DOSL does not
currently intend to effect any such registration. Until the shares of Stock
acquirable upon the exercise of the Option have been registered under the Act,
DOSL will not issue such shares unless the holder of the Option provides DOSL
with a written opinion of legal counsel, who shall be satisfactory to DOSL,
addressed to DOSL and satisfactory in form and substance to DOSL's counsel, to
the effect that the proposed issuance of equal shares to such Option holder may
be made without registration under the Act. In the event exemption from
registration under the Act is available upon an exercise of this Option,
Employee (or the person permitted to exercise this Option in the event of
Employee's death), if requested by DOSL to do so, will execute and deliver to
DOSL in writing an agreement containing such provisions as DOSL may require to
assure compliance with applicable securities laws.
Employee agrees that the shares of Stock which employee may acquire by
exercising this Option shall be acquired for investment without a view to
distribution, within the meaning of the Act, and shall not be sold, transferred,
assigned, pledged or hypothecated in the absence of an effective registration
statement for the shares under the Act and applicable state securities laws or
an applicable exemption from the registration requirements of the Act and any
applicable state securities laws. Employee also agrees that the shares of Stock
which Employee may acquire by exercising this Option will not be sold or
otherwise disposed of in any manner which would constitute a violation of any
applicable securities laws, whether federal or state.
3
In addition, Employee agrees (i) that the certificates representing the
share of Stock purchased under this Option may bear such legend or legends as
the Committee deems appropriate in order to assure compliance with applicable
securities laws, (ii) that DOSL may refuse to register the transfer of the
shares of Stock purchased under this Option on the stock transfer records of
DOSL if such proposed transfer would in the opinion of counsel satisfactory to
DOSL constitute a violation of any applicable securities law and (iii) that DOSL
may give related instructions to its transfer agent, if any, to stop
registration of the transfer of the shares of Stock purchased under this Option.
6. In the event Employee desires to renounce his rights to the Options
granted hereunder, Employee may do so by providing notice of his intent to
renounce same within 30 days after the date of the grant (or such shorter period
as he is notified) to DOSL at its principal executive office addressed to the
attention of its Chief Executive Officer. Said Options will be immediately
revoked as if never granted. In the event Employee so renounces his rights to
any such Options, no further Options shall thereafter be granted to Employee for
a period of six (6) weeks following the date of the grant.
7. As a condition precedent to the sale of shares of Common Stock to
Employee (and, if requested by DOSL, the spouse of Employee), Employee shall be
required to execute and deliver to DOSL a Purchase Agreement and an Employee
Stockholders' Agreement in form and substance as may be approved from time to
time by the Board of Directors of DOSL. After execution of the required
Agreements, and upon issuance of the shares, Optionee and his spouse will be
prohibited from selling, assigning or transferring in any way their interest in
the shares for a period of six months without the express written approval from
the Committee. The Committee will have the sole authority to grant a waiver
from the six month restriction and its decision will be final. Request for
waiver of the restriction must be made in writing and notice delivered to the
Committee.
Each certificate issued in respect of shares of Common Stock sold pursuant
to the Plan shall be registered in the name of the Participant and shall bear a
legend in substantially the following form:
"The transfer of these shares is restricted. These shares may be
restricted under the terms of the Securities Act of 1933, the
Securities and Exchange Act of 1934, or the Securities Act of Texas
(collectively called the "Securities Acts"). The restriction may
involve limitations required under an exemption from said Security
Acts, such as an investment representation, a residence requirement,
or a holding period requirement under the Intrastate Offering
exemption."
"Further, the transfer of these shares is restricted under the terms
of a Stock Redemption and Buy-Sell Agreement (also referred to as the
"Employee Stockholders' Agreement") between the holder of this
certificate and the Corporation or other shareholders, or both. Said
shares may be not sold, transferred, assigned, given away, pledged,
encumbered, or otherwise disposed of except in strict accordance with
the terms of that agreement, and no transfer will be recognized by the
Corporation until, as the case may be, counsel to the
4
Corporation is satisfied there is no violation of the Security Acts,
the other shareholders consent to the transfer, or both." Copies of
such Plan and Agreement are on file at the principal office of DOS
Ltd. and DOS Ltd. will furnish to the record holder of this
certificate, without charge, a copy of such Plan and Agreement."
8. Employment Relationship. For purposes of this Agreement, Employee
-----------------------
shall be considered to be in the employment of DOSL as long as Employee remains
a full-time or part-time employee of either DOSL, a parent or subsidiary
corporation (as defined in section 425 of the Code) of DOSL, or a corporation or
a parent or subsidiary of such corporation assuming or substituting a new option
for this Option. Any question as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Committee, and its determination shall be final. Employee
understands and agrees that nothing contained in this Agreement or in the Plan
shall be deemed to confer on any person any rights other than as expressly
provided herein or therein, including but not limited to any right to
continuation of employment and acknowledges and agrees that neither the
execution of this Agreement nor any acquisition of Stock by Employee creates any
obligation whatsoever by DOSL or any of its subsidiaries to continue Employee's
employment or otherwise affects DOSL's right, which Employee hereby
acknowledges, to terminate Employee's employment at will, with or without cause
in the sole discretion of DOSL or any of its subsidiaries which is an employer
of Employee.
5