Exhibit 4.11
NPRI, INC.
Non-Qualified Stock Option Agreement
NPRI, Inc., a Delaware corporation (the "Company"), hereby grants as of
the 17th day of January, 1996 to ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Optionee"), an option
to purchase a maximum of 320,000 shares (the "Option Shares") of its Common
Stock, $.01 par value ("Common Stock"), at the price of $.80 per share,
on the following terms and conditions:
1. Grant as Non-Qualified Option; Other Options. This option shall be
treated for federal income tax purposes as a Non-Qualified Option (rather than
an incentive stock option). This option is granted subsequent to the merger of
NPRI, Inc., a Virginia corporation, with NPRI, Inc., a Delaware corporation, and
the aggregate number of shares granted hereto shall not be subject to adjustment
by reason of such merger. This option is in addition to any other options
heretofore or hereafter granted to the Optionee by the Company or any present or
future parent or subsidiary of the Company (a "Related Corporation"), but a
duplicate original of this instrument shall not effect the grant of another
option.
2. Vesting of Option if Business Relationship Continues. This Option
shall be immediately exercisable on the date of grant and may be exercised up to
and including the date which is five years from the date this option is granted.
3. Termination of Business Relationship.
(a) Termination Other than for Cause: If the Optionee's
Business Relationship with the Company and all Related Corporations is
terminated, other than by reason of death, disability or dissolution as defined
in Section 4 or termination for Cause as defined in Section 3(c), no further
installments of this option shall become exercisable, and this option shall
terminate (and may no longer be exercised) after the passage of three months
from 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 hereunder
shall be those which are properly exercised before the termination of this
option. For purposes of this Agreement, "Business Relationship" shall include
the continuos service of the Optionee to the Company or a Related Corporation in
the capacity of an employee, officer, director or consultant.
(b) Termination for Cause: If the Optionee's Business
Relationship with the Company is terminated for Cause (as defined in Section
4(c)), this option shall terminate ninety days after the Optionee's receipt of
written notice of such termination and shall thereafter not be exercisable to
any extent whatsoever.
(c) Definition of Cause: "Cause" shall mean conduct involving
one or more of the following: (i) the substantial and continuing failure of the
Optionee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of the Optionee's
Business Relationship with the Company; (ii) disloyalty, gross negligence,
willful misconduct, dishonesty or breach of fiduciary duty to the Company or
Related
-2-
Corporation; (iii) the commission of an act of embezzlement or fraud;
(iv) deliberate disregard of the rules or policies of the Company or Related
Corporation which results in direct or indirect loss, damage or injury to the
Company or Related Corporation; (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or Related Corporation; or
(vi) the commission of an act which constitutes unfair competition with the
Company or Related Corporation or which induces any customer or supplier to
break a contract with the Company or Related Corporation.
4. Death; Disability; Dissolution.
(a) Death: If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Optionee's estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 8, at any time within 180 days
after the date of death, but not later than the scheduled expiration date.
(b) Disability: If the Optionee is a natural person whose
Business Relationship with the Company is terminated by reason of his or her
disability (as defined in the Plan), this option may be exercised, to the extent
otherwise exercisable on the date the Business Relationship was terminated, at
any time within 180 days after such termination, but not later than the
scheduled expiration date.
(c) Effect of Termination: At the expiration of such 180-day
period provided in paragraph (a) or (b) of this Section 4 or the scheduled
expiration date, whichever is the earlier, this option shall terminate (and
shall no longer be exercisable) and the only rights hereunder shall be those as
to which the option was properly exercised before such termination.
(d) Dissolution: If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved in
a Business Relationship with the Company, this option shall immediately
terminate as of the date of such event (and shall thereafter not be exercisable
to any extent whatsoever), and the only rights hereunder shall be those as to
which this option was properly exercised before such dissolution or other event.
5. Partial Exercise. This option may be exercised 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 stock subject to this option and cash in lieu of a
fractional share must be paid 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.
-3-
6. Payment of Price.
(a) Form of Payment: The option price shall be paid in
the following manner:
(i) in cash or by check;
(ii) subject to paragraph 6(b) below, by delivery of
previously-held shares of Common Stock or the withholding from the
shares of Common Stock otherwise deliverable upon exercise of an Option
shares having a fair market value (as determined by the Committee)
equal as of the date of exercise to the option price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a sufficient amount of the
proceeds from the sale of the Option Shares and an instruction to the
broker or selling agent to pay that amount to the Company; or
(iv) by any combination of the foregoing.
(b) Limitations on Payment by Delivery of Common Stock: If the
Optionee delivers Common Stock held by the Optionee ("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, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Optionee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Optionee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Optionee free of any substantial risk of forfeiture
for at least six months.
7. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company, 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 for 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 shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. Such certificate or
certificates 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). 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.
-4-
8. Option Not Transferable. This option is not transferable or
assignable except by will or by the laws of descent and distribution. Except as
set forth in the preceding sentence, during the Optionee's lifetime, only the
Optionee can exercise this option.
9. No Obligation to Exercise Option. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
10. No Obligation to Continue Business Relationship. Neither this
Agreement, nor the grant of this option imposes any obligation on the Company or
any Related Corporation to continue to maintain a Business Relationship with the
Optionee.
11. No Rights as Stockholder until Exercise. The Optionee shall have no
rights as a stockholder with respect to the Option Shares until such time as the
Optionee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the number of shares for which this option
is to be so exercised in accordance with Section 7.
12. Adjustments. Upon the occurrence of any of the following events, an
optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
(a) Stock Dividends and Stock Splits: If the shares
of Common Stock shall be subdivided or combined into a greater
or smaller number of shares or if the Company shall issue any
shares of Common Stock as a stock dividend on its outstanding
Common Stock, the number of shares of Common Stock deliverable
upon the exercise of Options shall be appropriately increased
or decreased proportionately, and appropriate adjustments
shall be made in the purchase price per share to reflect such
subdivision, combination or stock dividend.
(b) Consolidations or Mergers: If the Company is to
be consolidated with or acquired by another entity in a merger
or other reorganization in which the holders of the
outstanding voting stock of the Company immediately preceding
the consummation of such event, shall, immediately following
such event, hold, as a group, less than a majority of the
voting securities of the surviving or successor entity, or in
the event of a sale of all or substantially all of the
Company's assets or otherwise (each, an "Acquisition"), the
Committee or the board of directors of any entity assuming the
obligations of the Company hereunder (the "Successor Board"),
shall, as to outstanding Options, either (i) make appropriate
provision for the continuation of such Options by substituting
on an equitable basis for the shares then subject to such
Options either (a) the consideration payable with respect to
the outstanding shares of Common Stock in connection with the
Acquisition, (b) shares of stock of the surviving or successor
corporation or (c) such other securities as the Successor
Board deems appropriate, the fair market value of which shall
not materially exceed the fair market value of the shares of
Common Stock subject to such Options immediately
-5-
preceding the Acquisition; or (ii) upon written notice to
the optionees, provide that all Options must be exercised, to
the extent then exercisable or to be exercisable as a result
of the Acquisition, within a specified number of days of the
date of such notice, at the end of which period the Options
shall terminate; or (iii) terminate all Options in exchange
for a cash payment equal to the excess of the fair market
value of the shares subject to such Options (to the extent
then exercisable or to be exercisable as a result of the
Acquisition) over the exercise price thereof.
(c) Recapitalization or Reorganization: In the event
of a recapitalization or reorganization of the Company (other
than a transaction described in subparagraph B above) pursuant
to which securities of the Company or of another corporation
are issued with respect to the outstanding shares of Common
Stock, an optionee upon exercising an Option shall be entitled
to receive for the purchase price paid upon such exercise the
securities he or she would have received if he or she had
exercised such Option prior to such recapitalization or
reorganization.
(d) Modification of ISOs: Notwithstanding the
foregoing, any adjustments made pursuant to subparagraphs A, B
or C with respect to ISOs shall be made only after the
Committee, after consulting with counsel for the Company,
determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in
Section 424 of the Code) or would cause any adverse tax
consequences for the holders of such ISOs. If the Committee
determines that such adjustments made with respect to ISOs
would constitute a modification of such ISOs or would cause
adverse tax consequences to the holders, it may refrain from
making such adjustments.
(e) Dissolution or Liquidation: In the event of the
proposed dissolution or liquidation of the Company, each
Option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such
other conditions as shall be determined by the Committee.
(f) Issuances of Securities: Except as expressly
provided herein, no issuance by the Company of shares of stock
of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of
shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of
the Company.
(g) Fractional Shares: No fractional shares shall
be issued under the Plan and the optionee shall receive from
the Company cash in lieu of such fractional shares.
(h) Adjustments: Upon the happening of any of the
events described in subparagraphs A, B or C above, the class
and aggregate number of shares set
-6-
forth in paragraph 4 hereof that are subject to Stock Rights
which previously have been or subsequently may be granted
under the Plan shall also be appropriately adjusted to reflect
the events described in such subparagraphs. The Committee or
the Successor Board shall determine the specific adjustments
to be made under this paragraph 12 and its determination shall
be conclusive.
13. Withholding Taxes. If the Company or any Related Corporation in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Optionee hereby agrees that the Company or any Related
Corporation may withhold from the Optionee's wages or other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
14. Provision of Documentation to Employee. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
15. Miscellaneous.
(a) Notices: All notices hereunder shall be in writing and shall
be deemed given when sent by certified or registered mail, postage prepaid,
return receipt requested, to the address set forth below. The addresses for
such notices may be changed from time to time by written notice given in the
manner provided for herein.
(b) Entire Agreement; Modification: This Agreement constitutes the
entire agreement between the parties relative to the subject matter hereof, and
supersedes all proposals, written or oral, and all other communications between
the parties relating to the subject matter of this Agreement. This Agreement may
be modified, amended or rescinded only by a written agreement executed by
both parties.
(c) Severability: The invalidity, illegality or unenforceability of
any provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision.
(d) Successors and Assigns: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Section 8 hereof.
-7-
(e) Governing Law: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware, without giving
effect to the principles of the conflicts of laws thereof. The preceding choice
of law provision shall apply to all claims, under any theory whatsoever, arising
out of the relationship of the parties contemplated herein.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
NPRI, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________ By:____________________________
Print Name of Optionee ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
____________________________
Street Address
____________________________
City State Zip Code
