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EXHIBIT 99.6
THINK SYSTEMS CORPORATION
NON-QUALIFIED STOCK OPTION
1. Option. For valuable consideration, receipt of which
is hereby acknowledged, THINK SYSTEMS CORPORATION, a New Jersey corporation
(the "Company"), hereby grants to _______________________________ (the
"Optionee"), the right and option (the "Option") to purchase from the Company,
subject to the terms and conditions hereof, the number of shares (the "Optioned
Shares") of the Company's Common Stock, no par value (the "Common Stock"), at a
price per share (the "Option Price") as designated on Schedule A hereto.
2. Terms of Exercise. The Option shall vest on the date
designated as the "Vesting Date" on Schedule A hereto. Except as otherwise
provided in this Agreement, the Option may only be exercised as to vested
Optioned Shares. No Option shall be exercised as to fewer than 100 shares of
Common Stock or, if less, the total number of shares of Common Stock remaining
unexercised under the Option, and no Option shall be exercisable with respect
to any shares later than ten years after the date the Option is granted.
3. Notice of Exercise and Payment. An Option shall be
exercisable only by delivery of a written notice to the Company's Treasurer
specifying the number of shares of Common Stock for which the Option is being
exercised. If the shares of Common Stock acquired upon exercise of an Option
are not at the time of exercise effectively registered under the Securities
Act, the Optionee shall provide to the Company, as a condition to the
Optionee's exercise of the Option, a letter, in form and substance satisfactory
to the Company, to the effect that the shares are being purchased for the
Optionee's own account for investment and not with a view to distribution or
resale, and to such other effects as the Company deems necessary or appropriate
to comply with federal and applicable state securities laws. Payment shall be
made in full at the time the Option is exercised. Payment shall be made by:
(1) cash;
(2) delivery and assignment to the Company of
shares of Common Stock owned by the Optionee;
(3) delivery of a statement to the Company
directing the Company to withhold so many of
the shares of Common Stock that would
otherwise have been delivered upon the
exercise of the Option as equals the number
of shares of Common Stock that would have
been transferred to the
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Company if the purchase price had been paid
with shares of Common Stock owned by the
Optionee;
(4) a combination of (i), (ii) and (iii); or
(5) delivery of a written exercise notice,
including irrevocable instructions to the
Company to deliver the stock certificates
issuable upon exercise of the Option directly
to a broker named in the notice that has
agreed to participate in a "cashless"
exercise on behalf of the Optionee;
except that payment pursuant to subparagraph (v) above shall be permitted only
if the shares of Common Stock of the Company are "Publicly Traded." "Publicly
Traded" shall mean the Common Stock of the Company is listed or admitted to
unlisted trading privileges on a national securities exchange or as to which
sales or bid and offer quotations are reported in the automated quotation
system ("NASDAQ") by the National Association of Securities Dealers Inc.
("NASD").
Upon the Optionee's satisfaction of all conditions required
for the exercise of the Option and payment in full of the purchase price for
the shares being acquired, the Company shall, within a reasonable period of
time following such exercise, deliver a certificate representing the shares of
Common Stock so acquired; provided, that the Company may postpone issuance and
delivery of shares upon any exercise of an Option to the extent necessary or
advisable to comply with applicable exchange listing requirements, NASD
requirements, or federal or state securities laws.
4. Nontransferability of Option. No Option shall be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution and shall be exercisable during the Optionee's lifetime only by
the Optionee (or the Optionee's guardian or legal representative).
5. Termination of Options. The Option shall terminate
if the Optionee ceases for any reason to be a director prior to the Vesting
Date, except if his directorship is terminated by the Company without cause or
as a result of his death or disability (as determined in good faith by the
Committee) in which event the Option shall vest pro rata from the Commencement
Date (as defined in Schedule A) through the date of such termination.
6. Adjustment for Changes in Capitalization.
Appropriate and equitable adjustment shall be made in the number, kind and
option price of shares of Common Stock subject to the Option to give effect to
any changes in the outstanding Common Stock by reason of any stock dividend,
stock split, stock combination, merger, consolidation, reorganization,
recapitalization or any other change in the capital structure of the Company
affecting the Common Stock after the date hereof.
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7. Change in Control; Merger, Etc.
(1) Change in Control. Upon the occurrence of
any of the events listed below, the Option shall become immediately exercisable
in full. The events are as follows:
(i) The sale by the Company of all or
substantially all of its assets, or all or
substantially all of the assets of its
Subsidiaries, taken as a whole;
(ii) Any of the following events if,
immediately following such event, a majority
of the Directors consists of persons who were
not Directors immediately prior to the date
of such event:
(a) the sale of 50% or more of the
outstanding shares of Common Stock
of the Company in a single
transaction or related series of
transactions;
(b) the consummation of a tender
offer (by a party other than the
Company) for more than 50% of the
outstanding shares of Common Stock
of the Company; or
(c) subject to subsection (2)
below, the consummation of a merger
or consolidation involving the
Company; or
(iii) An election of new Directors if
immediately following such election a
majority of the Directors consists of persons
who were not nominated by the Board or the
nominating committee thereof to stand for
election as Directors in such election.
(2) Where Company Does Not Survive. In the event
of a merger or consolidation to which the Company is a party but is not the
surviving company, the Committee in its discretion may vote to negate and give
no effect to the acceleration of Options pursuant to subsection (1)(ii)(c)
above, but only if and to the extent that an executed agreement of merger or
consolidation provides that the optionee holding such an Option shall receive
the same merger consideration as the Optionee would have received as a
stockholder of the Company had the exercisability of the Option been
accelerated in accordance with subsection (1)(ii)(c) above and had the
Optionee, immediately prior to the merger or consolidation, exercised the
Option for the full
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number of shares subject thereto, paid the exercise price in full, and
satisfied all other conditions for the exercise of the Option.
(3) Liquidation or Dissolution. In the event of
the liquidation or dissolution of the Company, each outstanding Option shall
terminate.
8. Rights of Optionees. An Optionee shall have no
rights as a stockholder with respect to any shares of Common Stock covered by
the Option until the date the Option has been exercised and the full purchase
price for such shares has been received by the Company.
9. Interpretation. Any question of interpretation or
application of the terms of this Option shall be determined by the Board, and
the determination of the Board shall be final and binding for all purposes upon
the Optionee and upon any person claiming by, through or under the Optionee.
In the event the Option becomes subject to any standard Company stock option
plan, the Option will be subject to the terms and conditions of any such plan,
as amended from time to time.
10. Limitations on Exercise, Obligations of Company to
Issue Shares, Tax Treatment.
(a) Violation of Law. Notwithstanding any other
provision hereof, the Optionee, for the Optionee and the Optionee's successors,
if any, agrees that the Optionee will not be permitted to exercise the Option
granted hereby, and no shares of Common Stock shall be issued to the Optionee
or the Optionee's successor hereunder, if the exercise hereof or the issuance
of such shares shall constitute a violation of any provision of law or
regulation of any governmental authority.
(b) Registration. The Company shall not be
required to issue any Optioned Shares unless such shares are at the time
effectively registered or exempt from registration under the Securities Act of
1933, as amended. If, at the time of the exercise of this Option in whole or
in part, in the opinion of counsel for the Company it is necessary or desirable
in order to comply with any applicable law or regulation relating to the
issuance or sale of securities, the Optionee shall agree and represent that the
Optionee is acquiring the Optioned Shares for investment and not with any
present intention to resell the same and that the Optionee will dispose of such
shares only in compliance with such laws and regulations, and the Optionee will
upon the request of the Company, execute and deliver to the Company an
agreement to such effect. Any certificate representing the optioned shares may
bear applicable restrictive legends.
(c) Withholding of Income Taxes. The Company
shall not be required to make any payment or issue any Optioned Shares pursuant
to this Option unless adequate provision had been made to satisfy the Company's
obligation, if any, to withhold income tax in connection with the exercise of
any Option.
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(d) Certain Risk Factors. Optionee acknowledged
that the Shares must be held indefinitely unless subsequently registered under
the Act or an exemption from such registration is available. The Optionee
understands that the Shares are highly speculative and that they are and shall
be illiquid and without a market for the foreseeable future. The Optionee
acknowledged that there is no assurance of what, if any, value he or she will
realize on the Option or shares and that no representation or warranty to the
contrary has been made.
(e) Tax Treatment. Optionee acknowledges that
the tax treatment of the Option, Optioned Shares, the exercise of the Option or
any events or transactions with respect thereto may be dependent upon various
factors or events which are not covered by this Agreement and that the Option
or the exercise thereof may have serious tax consequences. The Company makes
no representations with respect to and hereby disclaims all responsibility as
to such tax treatment. Optionee understands and accepts such responsibility
for any tax obligations arising in connection herewith. Optionee understands
that this Option does not qualify as an incentive stock option under the Code.
The Company recommends to Optionee that Optionee obtain his or her own tax
advice in connection with the Option and its exercise.
11. Restrictive Covenant and Shareholders' Agreement. As
further consideration for the grant of the Option, the Optionee agrees that
upon exercise of the Option, in whole or in part, that the Optionee shall enter
into and be bound by such terms and provisions of a shareholders' agreement as
shall be determined by the Board. Any violation of the Restrictive Covenant at
any time as determined by the Company shall cause the immediate termination of
this Option without the need for advance notice.
12. Buy Back Provisions. Shares issued on exercise of
the Option shall upon issuance be subject to the following restrictions. As
used herein, "Restricted Stock" means Shares issued on exercise of the Option
which are still subject to the restrictions imposed under this Section that
have not yet expired or terminated.
(a) Not in limitation of any other restriction
herein, Restricted Stock (or any interest therein) may not be sold, assigned,
pledged or otherwise transferred or hypothecated (a "Transfer").
(b) If the directorship of the Optionee with the
Company is terminated for any reason (including death, retirement in accordance
with the Company's established retirement policies and practices, or total
disability), the Company shall have the option for 90 days after such
termination to purchase for cash all or any part of his Restricted Stock for
the fair market value per Share at the date of termination of employment as
conclusively determined by the Company's Board of Directors, without the need
for an independent valuation or appraisal. A purchase price per share equal to
or greater than the then applicable exercise price per share of incentive stock
options
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being granted by the Company at such time shall be deemed fair market value.
The restrictions imposed under this paragraph shall apply as well to all shares
or other securities issued in respect of Restricted Stock in connection with
any stock split, reverse stock split, stock dividend, recapitalization,
reclassification, merger, consolidation or reorganization.
(c) The Optionee hereby grants the Company a
right of first refusal with regard to any Transfer of the Restricted Stock. To
make any Transfer, the Optionee shall have received a bona fide written offer
to Transfer (the "Offer") and shall deliver to the Company a true copy of the
Offer with all material terms and conditions of such Transfer and the Company
shall have 30 days from receipt of such terms to consummate such Offer (as if
it was the offeror) and acquire the Restricted Stock on such terms. In the
event the Company does not exercise this right, the Optionee will be free to
make the Transfer only on the identical terms set forth in the Offer and within
30 days of the expiration of the Company's purchase right. If the terms of the
Offer are modified or the Offer is not consummated within such time period, the
Optionee must repeat the procedure set forth in this paragraph to Transfer the
Restricted Stock.
(d) This Section 12 shall expire and terminate
with respect to any Restricted Stock on the earliest to occur of the following:
(1) The date on which shares of the same
class of stock as the Restricted Stock first become Publicly Traded.
(2) The tenth anniversary of the date
hereof.
(e) Any certificates evidencing shares of
Restricted Stock may contain such legends as the Company may deem necessary or
advisable to reflect and give effect to the restrictions imposed hereunder.
13. Successors and Assigns. This Option shall be binding
upon the successors and assigns of the Company, including any corporation that
succeeds to the business of the Company by merger, consolidation or acquisition
of substantially all of the assets and business of the Company, and employment
of the Optionee by the successor corporation shall not be deemed to interrupt
continuity of employment for the purposes hereof.
14. General Provisions.
(a) Governing Law. This Option will be governed
by and construed according to the laws of the State of New Jersey and any
dispute hereunder will be submitted to the exclusive original jurisdiction of
the Superior Courts of the State of New Jersey, Xxxxxx County, or the U.S.
District Court, Newark, New Jersey.
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(b) Severability. It is the intention of the
Company and Optionee that the provisions of this Option shall be enforced to
the fullest extent permissible under the laws and public policies of each state
and jurisdiction in which such enforcement is sought, but that the
non-enforceability of any provisions hereof shall not render non-enforceability
or impair the remainder of this Option. Accordingly, if any provisions of this
Option shall be determined to be invalid or non-enforceable, either in whole or
in part, this Option shall be deemed amended to delete or modify, as necessary,
the offending provisions and to alter the balance of this Option in order to
render the same valid and enforceable to the fullest extent permissible.
(c) Amendment. This Option may only be amended,
or a right waived hereunder, in a writing signed by the parties hereto.
(d) Headings. The headings in this Option are
for convenience of reference only and are not part of the substance of this
Option and references to the masculine, feminine or neuter shall apply in all
cases.
OPTIONEE HAS READ THIS AGREEMENT CAREFULLY, HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS REGARDING IT AND UNDERSTANDS ITS TERMS. OPTIONEE HAS VOLUNTARILY
ENTERED INTO THIS AGREEMENT AND HAS BEEN ADVISED THAT THIS AGREEMENT CONTAINS
SERIOUS LEGAL RIGHT AND OBLIGATIONS (INCLUDING POTENTIAL IMPORTANT TAX
CONSEQUENCES) AND THAT OPTIONEE MAY HAVE HIS OWN LAWYER REVIEW THIS AGREEMENT
BEFORE SIGNING.
THINK SYSTEMS CORPORATION
By:
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ACCEPTED AND AGREED TO:
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Optionee
Name:
Address:
Dated: _______________
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Schedule A
Optionee Name:
Number of Optioned Shares:
Exercise Price per Share:
Commencement Date:
Vesting Schedule:
Accepted By:
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Optionee Signature
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Street Address
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City, State, Zip
