Exhibit 4.4
ASTEA INTERNATIONAL INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
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ASTEA INTERNATIONAL INC., a Delaware corporation (the "Company"), hereby
grants this ___ day of _____l, 199__, to ______, an option to purchase a maximum
of______shares (the "Option Shares") of its Common Stock, $.01 par value (the
"Common Stock"), at the price of $______ per share, subject to the following
terms and conditions:
1. GRANT AS NON-QUALIFIED OPTION; OTHER OPTIONS. This option (the "Option")
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is intended to be a Non-Qualified Option (rather than an incentive stock
option), and the Board of Directors intends to take appropriate action, if
necessary, to achieve this result. This Option is in addition to any other
options heretofore or hereafter granted to the Optionee by the Company, but a
duplicate original of this instrument shall not affect the grant of another
option.
2. EXTENT OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the Optionee has
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continued to serve the Company in the capacity of an employee, officer,
director, agent, advisor, or consultant, including services as a member of the
Board of Advisors of the Company (such service is described herein as
maintaining or being involved in a "Business Relationship" with the Company), on
the following dates, the Optionee may exercise this Option for the number of
Option Shares set opposite the applicable date:
Prior to ______ - 0% of the total Option
Shares
One year but less than - an additional 25% of the
two years from ________ total Option Shares
Two years but less than - an additional 25% of the
three years from ______ total Option Shares
Three years but less than - an additional 25% of the
four years from ________ total Option Shares
Four years from - an additional 25% of the
from _____________ total Option Shares
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ten years from the date this Option is granted. All
of the foregoing rights are subject to Sections 3, 4 and 15, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company, or
dies, becomes disabled or undergoes dissolution while involved in a Business
Relationship with the Company.
3. TERMINATION OF BUSINESS RELATIONSHIP. Subject to Section 15, if the
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Optionee ceases to maintain a Business Relationship with the Company (or any
affiliated corporation), other than by reason of death or disability as defined
in Section 4, no further installments of this Option shall become exercisable
and this Option shall terminate 90 days after the date the Business Relationship
ceases, but in no event later than the scheduled expiration date. In such a
case, the Optionee's only rights to exercise options hereunder shall be those
which are properly exercisable before the termination of this Option, and the
Optionee may exercise this Option for the number of Option Shares which have
vested and become exercisable prior to the date of termination.
4. DEATH; DISABILITY. If the Optionee is a natural person who dies while
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involved in a Business Relationship with the Company (or any affiliated
corporation), this Option may be exercised, to the extent of the number of
Option Shares with respect to which the Optionee could have exercised it on the
date of his or her death, by his or her estate, personal representative or
beneficiary to whom this Option has been assigned pursuant to Section 10, at any
time within 180 days after the date of death, but not later than the scheduled
expiration date. If the Optionee is a natural person whose Business
Relationship with the Company is terminated by reason of his or her disability,
this Option may be exercised, to the extent of the number of Option Shares with
respect to which the Optionee could have exercised it on the date the Business
Relationship was terminated, at any time within 180 days after the date of such
termination, but not later than the scheduled expiration date. At the
expiration of such 180-day period or the scheduled expiration date, whichever is
the
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earlier, this Option shall terminate and the only rights hereunder shall be
those as to which the Option was properly exercised before such termination.
5. PARTIAL EXERCISE. Exercise of this Option up to the extent above
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stated may be made in part at any time and from time to time within the above
limits, except that this Option may not be exercised for a fraction of a share
unless such exercise is with respect to the final installment of Option Shares
subject to this Option and a fractional share (or cash in lieu thereof) must be
issued to permit the Optionee to exercise completely such final installment.
Any fractional share with respect to which an installment of this Option cannot
be exercised because of the limitation contained in the preceding sentence shall
remain subject to this Option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
6. PAYMENT OF PRICE. The Option price is payable in United States
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dollars only and must be paid:
(a) in cash or by personal check, or any combination of the
foregoing, equal in amount to the Option price; or
(b) in the discretion of the Board of Directors, in cash, by personal
check, by delivery of shares of the Company's Common Stock or Preferred Stock
having a fair market value (as determined by the Board of Directors) equal as of
the date of exercise to the Option price, by delivery of a personal recourse
promissory note, through the delivery of an assignment to the Company of a
sufficient amount of the proceeds from the sale of the Common Stock acquired
upon exercise of the Option and an authorization to the broker or selling agent
to pay that amount to the Company, which sale shall be at the Optionee's
direction at the time of exercise, or by any combination of the foregoing, equal
in amount to the Option price.
If the Optionee delivers shares of Common Stock or Preferred Stock held by
the Optionee (the "Old Stock") to the Company in full or partial payment of the
option price, and the Old Stock so delivered is subject to restrictions or
limitations imposed by agreement between the Optionee and the Company, the
Common Stock or Preferred Stock received by the Optionee on the exercise of this
Option shall be subject to all restrictions and limitations applicable to the
Old Stock to the extent that the Optionee paid for such Common Stock or
Preferred Stock by delivery of Old Stock, in addition to any restrictions or
limitations imposed by this Agreement.
7. AGREEMENT TO PURCHASE FOR INVESTMENT. By acceptance of this Option,
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the Optionee agrees that a purchase of Option Shares under this Option will not
be made with a view to their distribution, as that term is used in the
Securities Act of 1933, as amended (the "Securities Act"), unless in the opinion
of counsel to the Company such distribution is in compliance with or exempt from
the registration and prospectus requirements of the Securities Act and
applicable state securities laws, and the Optionee agrees to sign a certificate
to such effect at the time of exercising this Option and agrees that the
certificate for the Option Shares so purchased may be inscribed with a legend to
ensure compliance with the Securities Act and applicable state securities laws.
THIS SECTION SHALL NOT APPLY IN THE EVENT THE SHARES OF COMMON STOCK ISSUABLE
UPON EXERCISE OF THIS OPTION HAVE BEEN REGISTERED ON A REGISTRATION STATEMENT ON
FORM S-8 WHICH IS EFFECTIVE AND CURRENT UNDER THE SECURITIES ACT.
8. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
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this Agreement, this Option may be exercised by written notice to the Vice
President and General Counsel of the Company, at its Bedford, Massachusetts
office, or to such transfer agent as the Company shall designate. Such notice
shall state the election to exercise this Option and the number of Option Shares
in respect of which it is being exercised and shall be signed by the person or
persons so exercising this Option. Such notice shall be accompanied by payment
of the full purchase price of such Option Shares, and the Company or its
transfer agent shall deliver a certificate or certificates representing such
Option Shares as soon as practicable after the notice shall be received. The
certificate or certificates for the Option Shares as to which this Option shall
have been so exercised shall be registered in the name of the person or persons
so exercising this Option (or, if this Option shall be exercised by the Optionee
and if the Optionee shall so request in the notice exercising this Option, shall
be registered in the name of the Optionee and another person jointly, with right
of survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this Option. In the event this Option
shall be exercised, pursuant to Section 4 hereof, by any person or persons other
than the Optionee, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise this Option. All Option Shares that
shall be purchased upon the exercise of this Option as provided herein shall be
fully paid and nonassessable.
9. OPTION NOT TRANSFERABLE. This Option is not transferable or
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assignable except by will or by the laws of descent and distribution. During
the Optionee's lifetime only the Optionee can exercise this Option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
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Option imposes no obligation on the Optionee to exercise it.
11. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. The Company and any
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affiliated corporations are not by this Option obligated in any manner to
continue to maintain a Business Relationship with the Optionee.
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12. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
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rights as a stockholder with respect to the Option Shares subject to this
Agreement until a stock certificate therefor has been issued to the Optionee and
is fully paid for by the Optionee. No adjustment shall be made for dividends or
similar rights for which the record date is prior to the date such stock
certificate is issued.
13. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. It is the purpose of this
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Option to encourage the Optionee to work for the best interests of the Company
and its stockholders. Because, for example, that might require the issuance of
a stock dividend or a merger with another corporation, the purpose of this
Option would not be served if such a stock dividend, stock split, merger or
similar occurrence would cause the Optionee's rights hereunder to be diluted or
terminated and thus be contrary to the Optionee's interest. In the event of any
stock dividend, stock split, recapitalization or other change in the capital
structure of the Company, this Option and the Option price shall be equitably
adjusted and, in lieu of issuing fractional shares upon exercise thereof, this
Option (and the corresponding Option Shares) shall be rounded upward or downward
to the nearest whole share (rounding upward for all amounts equal to or in
excess of .51). In particular, without affecting the generality of the
foregoing, it is understood that for the purposes of Sections 2 through 4
hereof, inclusive, maintaining or being involved in a Business Relationship with
the Company includes maintaining or being involved in a Business Relationship
with an affiliated corporation.
14. WITHHOLDING TAXES. The Optionee hereby agrees that the Company may
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withhold from the Optionee's wages or other remuneration the appropriate amount
of federal, state and local taxes attributable to the Optionee's exercise of any
installment of this Option. At the Company's discretion, the amount required to
be withheld may be withheld in cash from such wages or other remuneration, or in
kind from the Common Stock otherwise deliverable to the Optionee on exercise of
this Option. The Optionee further agrees that, if the Company does not withhold
an amount from the Optionee's wages or other remuneration sufficient to satisfy
the Company's withholding obligation, the Optionee will reimburse the Company on
demand, in cash, for the amount underwithheld.
15. NO EXERCISE OF OPTION IF ENGAGEMENT OR EMPLOYMENT TERMINATED FOR
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CAUSE. If the employment or engagement of the Optionee is terminated for
"Cause," this Option shall terminate on the date of such termination and this
Option shall thereupon not be exercisable to any extent whatsoever. "Cause" is
conduct, as determined by the Board of Directors, involving one or more of the
following: (i) gross misconduct by the Optionee which is materially injurious
to the Company; or (ii) the commission of an act of embezzlement, fraud or
deliberate disregard of the rules or policies of the Company which results in
material economic loss, damage or injury to the Company; or (iii) the
unauthorized disclosure of any trade secret or confidential information of the
Company or any third party who has a business relationship with the Company or a
violation of any noncompetition covenant or assignment of inventions obligation
with the Company; or (iv) the commission of an act which induces any customer or
prospective customer of the Company to break a contract with the Company or to
decline to do business with the Company; or (v) the conviction of the Optionee
of a felony involving any financial impropriety or which would materially
interfere with the Optionee's ability to perform his or her services or
otherwise be injurious to the Company; or (vi) the failure of the Optionee to
perform in a material respect his or her employment or engagement obligations
without proper cause. In making such determination, the Board of Directors
shall act fairly and in utmost good faith.
16. COMPANY'S RIGHT OF REPURCHASE. (A) RIGHTS OF REPURCHASE. If any of
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the events specified in Section 16(b) below occur, then,
(i) with respect to Option Shares acquired upon exercise of this
Option prior to the occurrence of such event, within 90 days after the
Company receives actual knowledge of the event, and
(ii) with respect to Option Shares acquired upon exercise of this
Option after the occurrence of such event, within 90 days following the
date of such exercise,
(in either case, the "Repurchase Period"), the Company shall have the right, but
not the obligation, to repurchase any or all the Option Shares from the
Optionee, or his or her legal representatives, as the case may be (the
"Repurchase Option"). The Repurchase Option shall be exercised by the Company
by giving the Optionee, or his or her legal representative, written notice of
its intention to exercise the Repurchase Option on or before the last day of the
Repurchase Period. If any of the events specified in Section 16(b)(i)-(ii)
occur, then the Company may exercise its Repurchase Option by tendering to the
Optionee, or his or her legal representative, an amount equal to the higher of
the Option exercise price or the fair market value of the Option Shares. If the
event specified in Section 16(b)(iii) occurs, then the Company instead may
exercise its Repurchase Option by tendering to the Optionee, or his or her legal
representative, an amount equal to the original Option exercise price. The
Company may, in exercising the Repurchase Option, designate one or more nominees
to purchase the Option Shares either within or without the Company. Upon timely
exercise of the Repurchase Option in the manner provided in this Section 16(a),
Optionee, or his or her legal representative, shall deliver to the Company the
stock certificate or certificates representing the Option Shares, duly endorsed
and free and clear of any and all liens, charges and encumbrances.
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If the Option Shares are not purchased under the Repurchase Option, the
Optionee and his or her successor in interest, if any, will hold any of the
Option Shares in his or her possession subject to all of the provisions of this
Agreement.
(B) COMPANY'S RIGHT TO EXERCISE REPURCHASE OPTION. The Company shall
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have the Repurchase Option in the event that any of the following events shall
occur:
(i) The receivership, bankruptcy or other creditor's proceeding
regarding the Optionee or the taking of any of Optionee's Option Shares
by legal process, such as a levy of execution;
(ii) Distribution of shares held by the Optionee to his or her spouse
as such spouse's joint or community interest pursuant to a decree of
dissolution, operation of law, divorce, property settlement agreement or
for any other reason, except as may be otherwise permitted by the
Company; or
(iii) The termination of the Optionee for "Cause" as defined in
Section 15.
(C) DETERMINATION OF FAIR MARKET VALUE. The fair market value of the
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Option Shares, as used in this Section 18, shall be an amount per share
determined on the basis of the price at which shares of the Common Stock could
reasonably be expected to be sold in an arms-length transaction, for cash, other
than on an installment basis, to a person not employed by, controlled by, in
control of or under common control with the Company. Fair market value shall be
determined by the Board of Directors, giving due consideration to recent grants
of incentive stock options for shares of Common Stock, recent arms-length
transactions involving shares of the Common Stock, if any, earnings of the
Company to the date of such determination, projected earnings of the Company,
the effect of the transfer restrictions to which the Option Shares are subject
under law and this Agreement, the absence of a public market for the Common
Stock and such other matters as the Board of Directors deems pertinent. If the
Common Stock of the Company is traded on any national securities exchange or the
Nasdaq National Market, fair market value shall be (i) the average of the high
and low closing sale prices, or (ii) the average of the last reported sale price
on the Nasdaq National Market, or (iii) the average of the closing bid prices
for the twenty (20) consecutive trading days preceding the date the Company
exercises its Repurchase Option and tenders payment for the Option Shares. The
determination by the Board of Directors of the fair market value shall be
conclusive and binding. The fair market value of the Option Shares shall be
determined as of the day on which the event occurs.
17. METHOD OF PAYMENT OF OPTION. The Company may, in its sole discretion,
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pay the purchase price for any Option or Option Shares repurchased by it
hereunder (under Section 16) either in cash or, alternatively, if such purchase
price exceeds $2,000, by delivery on the date of purchase of a check in an
amount equal to at least fifteen percent (15%) of such purchase price, together
with the Company's unsecured promissory note in a principal amount equal to the
remainder of such purchase price (the "Note"). In the event of payment by Note,
the Note shall be due and payable not later than three years from the date of
issuance, with principal and interest thereon payable on an unsecured basis in
equal annual installments. Interest on the Note shall be equal to the lowest
applicable Federal rate, as defined in Section 1274(d) of the Code, as of the
date of the Note's issuance.
18. GOVERNING LAW. This Agreement shall be governed by and interpreted in
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accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed, and the Optionee whose signature appears below
acknowledges acceptance of an original copy of this Agreement.
____________________________ ASTEA INTERNATIONAL INC.
SIGNATURE OF OPTIONEE
____________________________ By:_____________________________________
Optionee Vice President and General Counsel
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Street Address
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City State Zip Code
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