Exhibit 10.35
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of ______________, ______,
between DATA SYSTEMS & SOFTWARE INC., a Delaware corporation (the "Company"),
and ____________ (the "Optionee").
Preliminary Statement
Pursuant to the Company's 1994 Stock Incentive Plan (the
"Plan"), on __________, ____, the Board of Directors (the "Board") granted to
the Optionee an option to purchase ________ shares of the Company's Common
Stock, par value $.01 per share ("Common Stock"), subject to the Plan and the
terms and conditions set forth herein.
Accordingly, the parties hereto agree as follows:
1. Grant of Option. Subject to the Plan and the terms and
conditions of this Agreement, the Company hereby grants to Optionee the option
(the "Option") to purchase from the Company up to __________ shares of Common
Stock (the "Shares") at a price per share of $____. The number of shares to
which this Option pertains and the price per share at which this Option may be
exercised are subject to adjustment in accordance with the provisions of the
Plan.
2. Plan Governs Terms of Option. The Option is subject in all
respects to the terms and conditions of the Plan.
3. Type of Option. The Option is not intended to qualify as an
"incentive stock option" within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended.
4. Time of Exercise of Option. (a) This Option may be
exercised as to not more than ______ Shares at any time after __________,
______, as to not more than ______ Shares at any time after ____________, _____
and as to all of the Shares at any time after __________, ____ unless this
Option has been terminated in accordance with the provisions of Paragraph 5.
(b) Change in Control. Anything in this Paragraph 4 and in
Paragraph 5 to the contrary notwithstanding, this Option may be exercised as to
all the Shares (less the number of Shares as to which it has previously been
exercised, surrendered or forfeited) during the period commencing on the
occurrence of a (i) Change in Control of the Company (as defined in Exhibit A
hereto), and ending on ___________, _____, or (ii) upon an involuntary
termination as an officer of the Company.
5. Termination of Option. This Option shall immediately
terminate after ___________, ____, or upon the earlier termination of the
Optionee's service as an officer of the Company (including, for this purpose,
any subsidiary of the Company), except that if the date of such termination is
after _________, ____, the Optionee's right to exercise the unexercised portion
of this Option shall continue to be exercisable but only as to the number of
Shares as to which it would otherwise have been exercisable for 12 months after
the date of such termination (but in no event later than ________, ____). The
Optionee's right to exercise any portion of this Option after termination of the
Optionee's employment with the Company shall be subject to the satisfaction of
the conditions precedent that the Optionee not take any action adversely
affecting the Company.
6. Manner of Exercise. This Option may be exercised by the
delivery to the Company of a written notice signed by the Optionee in the form
of Exhibit B hereto, together with either (i) full payment of the purchase price
therefore in cash or by certified check payable to the order of the Company or
(ii) irrevocable instructions to a broker designated or approved by the Company
to sell shares of Common Stock issuable upon exercise of this Option and
promptly deliver to the Company a portion of the proceeds thereof equal to the
exercise price and any applicable withholding taxes. As provided in the Plan,
the Board may require Optionee to remit to the Company an amount sufficient to
satisfy any federal, state or local withholding tax requirements prior to
delivering to Optionee any shares purchased upon exercise of this Option. This
Option may not be exercised with respect to a fractional share.
7. Restriction on Transfer. This Option may not be assigned or
transferred except by will or the law of descent and distribution and during the
Optionee's lifetime may be exercised only by Optionee.
8. Notice. Any notice or communication to the Company
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person, or by United States mail, to the following address (or to
such other address as the Company shall from time to time specify):
Data Systems & Software Inc.
200 Route 17
Mahwah, New Jersey 07340
Attention: Secretary
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
DATA SYSTEMS & SOFTWARE INC.
By
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Name:
Title:
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[Optionee's name]
2
EXHIBIT A TO STOCK OPTION AGREEMENT
A "Change in Control of the Company" shall be deemed to have occurred
if (i) there shall be consummated (A) any consolidation or merger of the Company
in which the Company is not the continuing or surviving corporation or pursuant
to which shares of the Company's Common Stock would be converted in whole or
part into cash, securities or other property, other than a merger of the Company
in which the holders of the Company's Common Stock immediately prior to the
merger have substantially the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or (B) any sale, lease,
exchange or transfer (in one transaction or a series of related transactions) of
all or substantially all the assets of the Company, or (ii) the stockholders of
the Company shall approve any plan or proposal for the liquidation or
dissolution of the Company, or (iii) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), other than the Company or a subsidiary thereof or any
employee benefit plan sponsored by the Company or a subsidiary thereof, shall
become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange
Act) of securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities ordinarily (and apart
from rights accruing in special circumstances) having the right to vote in the
election of directors, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, or (iv) at any time
during a period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company shall cease for
any reason to constitute at least a majority thereof, unless the election or the
nomination for election by the Company's stockholders of each new director
during such two-year period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
two-year period or (v) any other event shall occur that would be required to be
reported in response to Item 6(e) of Schedule 14A or Regulation 14A promulgated
under the Exchange Act.
EXHIBIT B TO STOCK OPTION AGREEMENT
OPTION EXERCISE FORM
DATA SYSTEMS & SOFTWARE INC.
200 ROUTE 17
MAHWAH, NJ 07430
Gentlemen:
I hereby exercise the following portion of the stock option
that has heretofore been granted to me as follows:
Date of grant _____________________
Exercise price per share $_____________________
Number of shares underlying option grant _____________________
Number of shares underlying option held _____________________
Number of shares for which option being exercised hereby _____
In connection with this exercise [check one]:
_____ I enclose my check in the amount of $______________
_____ I am delivering to a broker designated or approved by
the Company irrevocable instructions to (i) sell shares of Common Stock acquired
upon exercise and (ii) promptly deliver to the Company a portion of the proceeds
thereof equal to the exercise price and any applicable withholding taxes.
I hereby agree to execute whatever other documents are
necessary in order to comply with the Plan and any applicable legal requirements
in connection with the issuance of the stock to me pursuant to the Plan.
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Optionee (Signature) Social Security Number
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Please print name
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Date Address