Exhibit 4.4
OPTION NO. ______________________
COMMODORE APPLIED TECHNOLOGIES, INC.
1998 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION
GRANTED TO
____________________________
OPTIONEE
_________________________ _________________________
Number of Shares Price per Share
DATE GRANTED:____________ EXPIRATION DATE:_________
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of this [ ] day of [ ],
[199__] (the "Date of Grant") between COMMODORE APPLIED TECHNOLOGIES, INC., a
Delaware corporation (hereinafter referred to as the "Company"), and [
], residing at [ ] (hereinafter referred to as the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires, in connection with the employment of the
Employee and in accordance with its 1998 Stock Option Plan (the "Plan"), to
provide the Employee with an opportunity to acquire Common Stock, $0.001 par
value (hereinafter referred to as "Common Stock"), of the Company on favorable
terms and thereby increase his proprietary interest in the continued progress
and success of the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein set forth and other good and valuable consideration, the Company and the
Employee hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a determination by
the Board of Directors of the Company, the Company, subject to the terms of the
Plan and this Agreement, hereby grants to the Employee as a matter of separate
inducement and agreement, and in addition to and not in lieu of salary or other
compensation for services, the right to purchase (hereinafter referred to as the
"Option") an aggregate of [NUMBER] shares of Common Stock, subject to adjustment
as provided in the Plan (such shares, as adjusted, hereinafter being referred to
as the "Shares"). The Option is NOT intended to qualify as an incentive stock
option under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. PURCHASE PRICE. The purchase price of shares of Common Stock
covered by the Option will be [$____] per share, subject to adjustment as
provided in the Plan.
3. EXERCISE OF OPTION. The Option shall be exercisable on the terms
and conditions hereinafter set forth:
(a) The Option shall become exercisable cumulatively as to the
following amounts of the number of Shares originally subject thereto (after
giving effect to any adjustment pursuant to the Plan), on the dates indicated:
(i) as to 20% of such Shares on or after [ ];
(ii) as to 20% of such Shares on or after [ ];
(iii) as to 20% of such Shares on or after [ ];
(iv) as to 20% of such Shares on or after [ ]; and
(v) as to 20% of such Shares on or after [ ].
(b) The Option may be exercised pursuant to the provisions of
this Section 3, by notice and payment to the Company as provided in Sections 9
and 14 hereof.
4. TERM OF OPTION. The term of the Option shall be a period of ten
(10) years from the Date of Grant, subject to earlier termination or
cancellation as provided in this Agreement. This Option, to the extent
unexercised, shall expire on the day immediately prior to the tenth (10th)
anniversary of the Date of Grant. The holder of the Option shall not have any
rights to dividends or any other rights of a stockholder with respect to any
shares of Common Stock subject to the Option until such shares shall have been
issued to him (as evidenced by the appropriate entry on the books of the Company
or a duly authorized transfer agent of the Company) provided that the date of
issuance shall not be earlier than the date this Option is exercised and payment
of the full purchase price of the shares of Common Stock (with respect to which
this Option is exercised) is made to the Company.
5. NON-TRANSFERABILITY OF OPTION. The Option shall not be assigned,
transferred or otherwise disposed of, or pledged or hypothecated in any way, and
shall not be subject to execution, attachment or other process, except as may be
provided in the Plan. Any assignment, transfer, pledge, hypothecation or other
disposition of the Option attempted contrary to the provisions of the Plan, or
any levy of execution, attachment or other process attempted upon the Option,
will be null and void and without effect. Any attempt to make any such
assignment, transfer, pledge, hypothecation or other disposition of the Option
will cause the Option to terminate immediately upon the happening of any such
event; provided, however, that any such termination of the Option under the
foregoing provisions of this Section 5 will not prejudice any rights or remedies
which the Company or any Parent or Subsidiary may have under this Agreement or
otherwise.
6. EXERCISE UPON CESSATION OF EMPLOYMENT. (a) If the Employee at
any time ceases to be an employee of the Company and of any Parent or Subsidiary
(i) by reason of his discharge for Good Cause or (ii) due to his voluntary
termination of employment without the written consent of the Committee, the
Option shall, at the time of such termination of employment, terminate and the
Employee shall forfeit all rights hereunder. If, however, the Employee for any
other reason (other than Disability or death) ceases to be such an Employee, the
Option may, subject to the provisions of Section 5 hereof, be exercised by the
Employee to the same extent the Employee would have been entitled under Section
3 hereof to exercise the Option immediately prior to such cessation of
employment, at any time within [________DAYS/MONTHS/YEARS] after such cessation
of employment, at the end of which period the Option, to the extent not then
exercised, shall terminate and the Employee shall forfeit all rights hereunder,
even if the Employee subsequently returns to the employ of the Company or any
Parent or Subsidiary. In no event, however, may the Option be exercised after
the expiration of the term provided in Section 4 hereof.
(b) The Option shall not be affected by any change of duties
or position of
the Employee so long as he continues to be an a full-time employee of the
Company or of any Parent or Subsidiary thereof. If the Employee is granted a
temporary leave of absence, such leave of absence shall be deemed a continuation
of his employment by the Company or of any Parent or Subsidiary thereof for the
purposes of this Agreement, but only if and so long as the employing corporation
consents thereto.
7. EXERCISE UPON DEATH OR DISABILITY. (a) If the Employee dies
while he is employed by the Company or by any Parent or Subsidiary, [AND ON OR
AFTER THE FIRST DATE UPON WHICH HE WOULD HAVE BEEN ENTITLED TO EXERCISE THE
OPTION UNDER THE PROVISIONS OF SECTION 3 HEREOF], the Option may, subject to the
provisions of Section 5 hereof, be exercised [WITH RESPECT TO ALL OR ANY PART OF
THE SHARES OF COMMON STOCK AS TO WHICH THE DECEASED EMPLOYEE HAD NOT EXERCISED
THE OPTION AT THE TIME OF HIS DEATH (REGARDLESS OF WHETHER THE OPTION WAS FULLY
EXERCISABLE AT SUCH TIME)] [(TO THE SAME EXTENT THE EMPLOYEE WOULD HAVE BEEN
ENTITLED UNDER SECTION 3 HEREOF TO EXERCISE THE OPTION IMMEDIATELY PRIOR TO HIS
DEATH)], by the estate of the Employee (or by the person or persons who acquire
the right to exercise the Option by written designation of the Employee) at any
time within [________ DAYS/MONTHS/YEARS] after the death of the Employee, at the
end of which period the Option, to the extent not then exercised, shall
terminate and the estate or other beneficiaries shall forfeit all rights
hereunder. In no event, however, may the Option be exercised after the
expiration of the term provided in Section 4 hereof.
(b) In the event that the employment of the Employee by the
Company and any Parent or Subsidiary is terminated by reason of the Disability
of the Employee [AND ON OR AFTER THE FIRST DATE UPON WHICH HE WOULD HAVE BEEN
ENTITLED TO EXERCISE THE OPTION UNDER THE PROVISIONS OF SECTION 3 HEREOF], the
Option may, subject to the provisions of Section 5 hereof, be exercised [WITH
RESPECT TO ALL OR ANY PART OF THE SHARES OF COMMON STOCK AS TO WHICH HE HAD NOT
EXERCISED THE OPTION AT THE TIME OF HIS DISABILITY OR RETIREMENT (REGARDLESS OF
WHETHER THE OPTION WAS FULLY EXERCISABLE AT SUCH TIME)] [(TO THE SAME EXTENT THE
EMPLOYEE WOULD HAVE BEEN ENTITLED UNDER SECTION 3 HEREOF TO EXERCISE THE OPTION
IMMEDIATELY PRIOR TO HIS EMPLOYMENT TERMINATION DUE TO DISABILITY)] by the
Employee within the period ending [________ DAYS/MONTHS/YEARS] after the date of
such termination of employment, at the end of which period the Option, to the
extent not then exercised, shall terminate and the Employee shall forfeit all
rights hereunder even if the Employee subsequently returns to the employ of the
Company or any Parent or Subsidiary. In no event, however, may the Option be
exercised after the expiration of the term provided in Section 4 hereof.
8. REGISTRATION. At the time of issuance, the shares of Common
Stock subject hereto and issuable upon the exercise hereof may not be registered
under the Securities Act of 1933, as amended, and, if required upon the request
of counsel to the Company, the Employee will give a representation as to his
investment intent with respect to such shares prior to their issuance as set
forth in Section 9 hereof. The Company may register or qualify the shares
covered by the Option for sale pursuant to the Securities Act of 1933, as
amended, at any time prior to or after the exercise in whole or in part of the
Option.
9. METHOD OF EXERCISE OF OPTION. (a) Subject to the terms and
conditions of this Agreement, the Option shall be exercisable by notice in the
manner set forth in Exhibit A hereto (the
"Notice") and provision for payment to the Company in accordance with the
procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number
of Shares with respect to which it is being exercised;
(ii) contain a representation and agreement as to investment
intent, if required by counsel to the Company with respect to such Shares,
in a form satisfactory to counsel to the Company;
(iii) be signed by the Employee or the person or persons
entitled to exercise the Option and, if the Option is being exercised by
any person or persons other than the Employee, be accompanied by proof,
satisfactory to counsel to the Company, of the right of such other person
or persons to exercise the Option;
(iv) include payment of the full purchase price for the shares
of Common Stock to be purchased pursuant to such exercise of the Option;
and
(v) be received by the Company on or before the date of the
expiration of this Option. In the event the date of expiration of this
Option falls on a day which is not a regular business day at the Company's
executive office in [CITY/STATE] then such written Notice must be received
at such office on or before the last regular business day prior to such
date of expiration.
(b) Payment of the purchase price of any shares of Common
Stock, in respect of which the Option shall be exercised, shall be made by the
Employee or such person or persons at the place specified by the Company on the
date the Notice is received by the Company (i) by delivering to the Company a
certified or bank cashier's check payable to the order of the Company, (ii) if
consented to by the Company in writing, by delivering to the Company properly
endorsed certificates of shares of Common Stock (or certificates accompanied by
an appropriate stock power) with signature guaranties by a bank or trust
company, (iii) by having withheld from the total number of shares of Common
Stock to be acquired upon the exercise of this Option a specified number of such
shares of Common Stock, (iv) by any form of "cashless" exercise or (v) by any
combination of the foregoing. [FOR PURPOSES OF THE IMMEDIATELY PRECEDING
SENTENCE, AN EXERCISE EFFECTED BY THE TENDER OF COMMON STOCK (OR DEEMED TO BE
EFFECTED BY THE TENDER OF COMMON STOCK) MAY BE CONSUMMATED ONLY WITH COMMON
STOCK (I) HELD BY THE EMPLOYEE FOR SIX (6) MONTHS OR (II) ACQUIRED BY THE
EMPLOYEE OTHER THAN UNDER THE PLAN (OR A SIMILAR PLAN MAINTAINED BY THE
COMPANY).]
(c) The Option shall be deemed to have been exercised with
respect to any particular shares of Common Stock if, and only if, the preceding
provisions of this Section 9 and the provisions of Section 10 hereof shall have
been complied with, in which event the Option shall be deemed to have been
exercised on the date the Notice and related payment were received by the
Company. Anything in this Agreement to the contrary notwithstanding, any Notice
given pursuant to the provisions of this
Section 9 shall be void and of no effect if all of the preceding provisions of
this Section 9 and the provisions of Section 10 shall not have been complied
with.
(d) The certificate or certificates for shares of Common
Stock as to which the Option shall be exercised will be registered in the name
of the Employee (or in the name of the Employee's estate or other beneficiary if
the Option is exercised after the Employee's death), or if the Option is
exercised by the Employee and if the Employee so requests in the notice
exercising the Option, will be registered in the name of the Employee and
another person jointly, with right of survivorship and will be delivered as soon
as practical after the date the Notice is received by the Company (accompanied
by full payment of the exercise price), but only upon compliance with all of the
provisions of this Agreement.
(e) If the Employee fails to accept delivery of and pay for
all or any part of the number of Shares specified in such Notice, his right to
exercise the Option with respect to such undelivered Shares may be terminated in
the sole discretion of the Committee. The Option may be exercised only with
respect to full Shares.
(f) The Company shall not be required to issue or deliver any
certificate or certificates for shares of its Common Stock purchased upon the
exercise of any part of the Option prior to the payment to the Company, upon its
demand, of any amount requested by the Company for the purpose of satisfying its
liability, if any, to withhold federal, state or local income or earnings tax or
any other applicable tax or assessment (plus interest or penalties thereon, if
any, caused by a delay in making such payment) incurred by reason of the
exercise of this Option or the transfer of shares thereupon. Such payment shall
be made by the Employee in cash or, with the written consent of the Company, by
tendering to the Company shares of Common Stock equal in value to the amount of
the required withholding. In the alternative, the Company may, at its option,
satisfy such withholding requirements by withholding from the shares of Common
Stock to be delivered to the Employee pursuant to an exercise of the Option a
number of shares of Common Stock equal in value to the amount of the required
withholding.
10. APPROVAL OF COUNSEL. The exercise of the Option and the issuance
and delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Company's counsel of all legal matters in connection therewith,
including, but not limited to, compliance with the requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, and the requirements of any
stock exchange or automated trading medium upon which the Common Stock may then
be listed or traded.
11. RESALE OF COMMON STOCK. (a) If so requested by the Company,
upon any sale or transfer of the Common Stock purchased upon exercise of the
Option, the Employee shall deliver to the Company an opinion of counsel
satisfactory to the Company to the effect that either (i) the Common Stock to be
sold or transferred has been registered under the Securities Act of 1933, as
amended, and that there is in effect a current prospectus meeting the
requirements of Section 10(a) of said Act which is being or will be delivered to
the purchaser or transferee at or prior to the time of delivery of the
certificates evidencing the Common Stock to be sold or transferred, or (ii) such
Common Stock may then be sold without violating Section 5 of said Act.
(b) The Common Stock issued upon exercise of the Option shall
bear the following (or similar) legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION
IS NOT REQUIRED.
12. RESERVATION OF SHARES. The Company shall at all times during the
term of the Option reserve and keep available such number of shares of the
Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
13. LIMITATION OF ACTION. The Employee and the Company each
acknowledges that every right of action accruing to him or it, as the case may
be, and arising out of or in connection with this Agreement against the Company
or a Parent or Subsidiary, on the one hand, or against the Employee, on the
other hand, shall, irrespective of the place where an action may be brought,
cease and be barred by the expiration of three years from the date of the act or
omission in respect of which such right of action arises.
14. NOTICES. Each notice relating to this Agreement shall be in
writing and delivered in person, by recognized overnight carrier or by certified
mail to the proper address. All notices to the Company or the Committee shall
be addressed to them at [ADDRESS], Attn: [OFFICER]. All notices to the
Employee shall be addressed to the Employee or such other person or persons at
the Employee's address above specified. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that effect.
15. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit
of the Company, the Employee and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
16. SEVERABILITY. In the event that any one or more provisions of
this Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
17. GOVERNING LAW. This Agreement will be construed and governed in
accordance with the laws of the State of Delaware.
18. EMPLOYMENT. Nothing contained in this Agreement shall be
construed as (a) a contract of employment between the Employee and the Company
or any Parent or Subsidiary, (b) as a
right of the Employee to be continued in the employ of the Company or of any
Parent or Subsidiary, or (c) as a limitation of the right of the Company or of
any Parent or Subsidiary to discharge the Employee at any time, with or without
cause (subject to any applicable employment agreement).
19. DEFINITIONS. Unless otherwise defined herein, all capitalized
terms used in this Agreement shall have the same definitions as set forth in the
Plan.
20. INCORPORATION OF TERMS OF PLAN. This Agreement shall be
interpreted under, and subject to, all of the terms and provisions of the Plan,
which are incorporated herein by reference.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Date of Xxxxx set forth above.
[ ]
By:________________________________
Name:
Title:
___________________________________
[Name of Employee]
___________________________________
Social Security Number
ATTEST:
_________________________
EXHIBIT A
NON-QUALIFIED STOCK OPTION EXERCISE FORM
[DATE]
[Company Name]
[Address]
[City, State and Zip Code]
Attention: [OFFICER]
Dear Sirs:
Pursuant to the provisions of the Non-Qualified Stock Option Agreement
dated [ ] (the "Agreement"), whereby you have granted to me a Non-Qualified
Option (the "Option") to purchase up to [ ] shares of the Common Stock of [
] (the "Company") subject to the terms of the Agreement, I hereby notify you
that I elect to exercise my option to purchase [ ] of the shares of Common
Stock covered by such Option at the [$___] per share price specified therein.
In full payment of the price for the shares being purchased hereby, I am
delivering to you herewith (i) certified or bank cashier's check payable to the
order of the Company in the amount of $____________, $_____________ of
this amount is the purchase price of the shares, and the balance represents
payment of withholding taxes as follows: Federal $_____________, State
$_________ and Local $_______. or (ii) a certificate or certificates for [
] shares of Common Stock of the Company, and which have a fair market value as
of the date hereof of $___________, [and a certified or bank cashier's check,
payable to the order of the Company, in the amount of $________________].(1)
or (ii) a certificate or certificates for [ ] shares of Common Stock of
the Company, and which have a fair market value as of the date hereof of
$___________, [and a certified or bank cashier's check, payable to the order of
the Company, in the amount of $________________].(2) Any such stock certificate
or certificates are endorsed, or accompanied by an appropriate stock power, to
the order of the Company, with my signature guaranteed by a bank or trust
company or by a member firm of the New York Stock Exchange. I hereby
acknowledge that I am purchasing these shares for investment purposes only and
not for resale in violation of any federal or state securities laws.
Very truly yours,
______________________________
[Address]
(For notices, reports, dividend checks and
other communications to stockholders.)
-------------------
(1) $_____________ of this amount is the purchase price of the shares, and the
balance represents payment of withholding taxes as follows: Federal
$_____________, State $_________ and Local $_______.
(2) $_____________ of this amount is at least equal to the current market value
of one share of Common Stock of the Company, and the balance represents
payment of withholding taxes as follows: Federal $________, State $_______
and Local $______.