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Exhibit 4.8
TOLLGRADE COMMUNICATIONS, INC.
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into this 13th day of December,
1996, as amended and restated as of this ________ day of July, 1997, by and
between TOLLGRADE COMMUNICATIONS, INC., a Pennsylvania corporation (the
"Company") and ______________________, an individual (the "Holder").
WHEREAS, the Company has issued, and the Holder has received, an
option to purchase shares of the common stock of the Company, pursuant to the
terms described herein;
WHEREAS, since the original date of this Agreement, the Company has
amended its 1995 Long-Term Incentive Compensation Plan (as so amended, the
"Plan") to permit grants of nonstatutory stock options thereunder to
non-employee Directors;
WHEREAS, since the original date of this Agreement the Company has
registered, or shortly will register, the shares underlying the nonstatutory
stock options covered by this Agreement on a Form S-8 Registration Statement;
WHEREAS, the parties hereto desire to amend and restate this Agreement
to incorporate the Plan by reference in order to define the rights and
obligations of the parties under this Agreement, and to include the stock
options granted hereby under the Form S-8.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein and intending to be legally bound hereby, the parties agree as follows:
1. Grant of Option. The Company hereby confirms the grant to the Holder
on ____________ (the "Date of Grant") of an option (the "Option") to purchase,
in accordance with the terms hereof, up to __________ (________) shares of
common stock of the Company, par value $.20 per share (the "Common Stock") at an
option price of $________ per share. The Option will expire at the close of
business on ____________________.
2. Acceptance of Grant of Option. The Holder accepts the grant of the
Option confirmed hereby, acknowledges having received a copy of the Plan and
agrees to be bound by the terms and provisions of the Plan, as the Plan may be
amended from time to time; provided, however, that no alteration, amendment,
revocation or termination of the Plan shall, without the written consent of the
Holder, adversely affect the rights of the Holder with respect to the Option.
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3. Incorporation of Plan by Reference. Although the Options covered by
this Agreement were not issued pursuant to the Plan, the parties hereby agree to
treat such Options as if they were so issued under and subject to the terms and
conditions of Plan, and the Plan is incorporated herein by reference and made a
part hereof as though set forth in full herein; provided, however, that such
Options shall not count against the total Options which may be issued under the
Plan.
4. Exercise. The Option confirmed hereby is a nonstatutory stock option
as that term is defined in Section 2.20 of the Plan. Subject to Section 6.9 of
the Plan regarding the periods during which stock options may be exercised upon
termination of Board Service, and Section 14.1 of the Plan regarding the periods
during which the Option may be exercised during a Change-in-Control (as defined
in the Plan), the Option shall be immediately exercisable.
5. Non-Transferability. This Option shall not be transferrable
otherwise than by Will or the laws of descent or distribution, and the Option
shall be exercisable during the lifetime of the Holder only by the Holder.
6. Procedure for Exercise of Option. The Option may be exercised only
by (a) execution and delivery by the Holder to the Company of an exercise form
or forms prescribed by the Committee; and (b) surrender of this Agreement at the
principal office of the Company. Each exercise form must set forth the number of
shares of Common Stock for which the Option is exercised and must be dated and
signed by the person exercising the Option.
Subject to the last paragraph of this Section 6, the exercise is not
effective until the Company receives payment of the full option price for the
number of shares of Common Stock for which the Option is exercised. The Option
Price shall be paid to the Company in full in the manner specified in Section
6.6 of the Plan. To the extent the Holder pays the Option Price in whole or in
part by shares of already-owned Common Stock, as permitted by the Plan, the
Company shall advise any person exercising the Option in such manner as to the
amount of any cash required to be paid to the Company for any shares
representing a fraction of a share, and such person will be required to pay any
such cash directly to the Company before any distribution of certificates
representing shares of Common Stock will be made. The person exercising the
Option should execute the form of assignment on the back of the certificate or
should deliver an executed Assignment Separate from Certificate with respect to
each stock certificate delivered in payment of the Option Price.
If any person other than the Holder exercises the Option, the exercise
material must include proof satisfactory to the Company of the right of such
person to exercise the Option, and the signature on all certificates or stock
powers must be guaranteed by a commercial bank or trust company or by a firm
having membership in the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., or the National Association of Securities Dealers, Inc.
The date of exercise of the Option is the date on which the exercise
form or forms, proof of right to exercise (if required) and payment of the
Option Price are received by the Company.
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For purposes of determining the date of exercise where payment of the Option
Price is made in shares of already-owned Common Stock, any cash required to be
paid to the Company with respect to a fraction of a share shall not be taken
into account when determining whether payment of the Option Price has been made.
7. Issuance of Certificates. Subject to Section 6 above and
this Section 7, the Company will issue a certificate or certificates
representing the number of shares of Common Stock for which the Option is
exercised as soon as practicable after the date of exercise. Unless otherwise
directed, the certificate(s) will be registered in the name of the person
exercising the Option and delivered to such person. If the Option Price is paid
in whole or in part with shares of already-owned Common Stock, the Company will
issue at the same time and return to the person exercising the Option a
certificate representing the number of any excess shares included in any
certificate or certificates delivered to the Company at the time of exercise.
The obligation of the Company to issue shares on exercise of an option
is subject to the effectiveness of a Registration Statement under the
Securities Act of 1933, as amended, with respect to such shares, if deemed
necessary or appropriate by counsel to the Company. The Company is not
obligated to file such a Registration Statement. If at the time of exercise of
the Option, no such Registration Statement is in effect, the issuance of shares
on exercise of the Option may also be made subject to restrictions on the
transfer of the shares, including the placing of an appropriate legend on the
certificates restricting the transfer thereof, and to such other restrictions
as the Committee, on the advice of counsel, may deem necessary or appropriate
to prevent a violation of applicable securities laws.
8. Withholding of Taxes. The Holder will be advised by the Company as
to the amount of any federal income, employment or excise taxes required to be
withheld by the Company on any compensation income resulting from the exercise
of the Option, and the Holder will pay such taxes directly to the Company upon
request. State, local or foreign income or employment taxes may also be required
to be withheld by the Company and the Holder will also be required to pay such
taxes directly to the Company upon request. If the Holder does not pay any taxes
required to be withheld directly to the Company within ten (10) days after any
such request, the Company may withhold such taxes from any other compensation to
which the Holder is entitled from the Company. The Holder will hold the Company
harmless in acting to satisfy its withholding obligations in this manner if it
becomes necessary to do so.
9. Interpretation of Plan and Agreement. This Agreement is an award
agreement referred to in Section 6.2 of the Plan. If there is any conflict
between the Plan and this Agreement, the provisions of the Plan shall control.
However, there may be provisions in this Agreement not contained in the Plan,
which provisions shall nevertheless be effective. In addition, to the extent
that provisions of the Plan are expressly modified for purposes of this
Agreement pursuant to authorization in the Plan, the provisions of this
Agreement shall control. Any dispute or disagreement which shall arise under or
in any way relate to the construction or interpretation of the Plan or this
Agreement shall be resolved by the Board, and the decision of the Board shall be
final, binding and conclusive for all purposes.
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10. Effect of Agreement on Rights of Company and Holder. This
Agreement does not confer any rights on the Holder to continue as a Director.
11. Indemnification. The Holder indemnifies and holds harmless the
Company from and against any and all loss, damages, liability or expense,
including costs and reasonable attorneys' fees, to which the Company may be put
or may incur by reason of or in connection with any misrepresentation made by
the Holder, any breach of the Holder's warranties, or the Holder's failure to
fulfill any of his or her covenants or agreements set forth herein.
12. Binding Effect. This Agreement shall be binding upon the
successors and assigns of the Company and upon the legal representatives, heirs
and legatees of the Holder.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings, oral
or written, between the parties with respect to the subject matter of this
Agreement.
14. Amendment. This Agreement may be amended only a written instrument
signed by the Company and the Holder.
15. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the Company and the Holder have executed this
Agreement as of the date first written above.
TOLLGRADE COMMUNICATIONS, INC.
By:
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Title:
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WITNESS: HOLDER:
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