EXHIBIT 10(c)(17)
[CONSULTANT VERSION]
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of this ____ day of _________________, 2006
between Cover-All Technologies Inc., a Delaware corporation (hereinafter
referred to as the "Corporation"), and ___________________________ (hereinafter
referred to as the "Consultant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Corporation desires, in accordance with the
Cover-All Technologies Inc. 2005 Stock Incentive Plan (the "Plan"), to provide
the Consultant with an opportunity to acquire common stock, $.01 par value per
share (hereinafter referred to as "Common Stock"), of the Corporation on
favorable terms and thereby increase Consultant's proprietary interest in the
continued progress and success of the business of the Corporation;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Corporation and the Consultant hereby agree as follows:
1. CONFIRMATION OF GRANT OF OPTION. Pursuant to a
determination by the Committee made on ______________ (the "Date of Grant"),
subject to the terms of the Plan and this Agreement, it is hereby confirmed that
the Consultant has been granted as a matter of separate inducement and
agreement, and in addition to and not in lieu of other compensation for
services, the right to purchase (hereinafter referred to as the "Option") an
aggregate of ___________ shares of Common Stock ("Shares"), subject to
adjustment as provided in Section 7 hereof. 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 Section 8 hereof.
3. EXERCISE OF OPTION. The Option shall be exercisable on the
terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable in accordance
with the following vesting schedule (the "Vesting Schedule") so long as the
Consultant is in a continuous service relationship with the Corporation from the
Date of Grant through the applicable date upon which vesting is scheduled to
occur. No vesting will accrue to any Option after the Consultant ceases to be in
a service relationship with the Corporation, except as provided otherwise in
this Agreement. The following sets forth the Vesting Schedule:
------------------------- -----------------------------
Aggregate Percentage of
Vesting Date Total Option Vested as of
the Vesting Date
------------------------- -----------------------------
------------------------- -----------------------------
/ / 25%
------------------------- -----------------------------
------------------------- -----------------------------
/ / 25%
------------------------- -----------------------------
------------------------- -----------------------------
/ / 25%
------------------------- -----------------------------
------------------------- -----------------------------
/ / 25%
------------------------- -----------------------------
The number of Shares vested as of a particular vesting date
shall be rounded down to the nearest whole share. However, vesting is rounded up
to the nearest whole share with respect to the last vesting date reflected on
the Vesting Schedule.
(b) The Option may be exercised pursuant to the provisions of
this Section 3, by notice and payment to the Corporation as provided in Sections
9 and 14 hereof.
4. TERM OF OPTION. If not sooner exercised or terminated, the
Option shall expire at 5:00 p.m., Eastern Time, on the last business day prior
to the _____th 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 a duly authorized transfer agent of the Corporation) provided that the
date of issuance shall not be earlier than the Closing Date (as hereinafter
defined with respect to such shares pursuant to Section 9 hereof) upon purchase
of such shares upon exercise of the Option.
5. NON-TRANSFERABILITY OF OPTION. The Option shall not be
transferable otherwise than by will or by the laws of descent and distribution
or pursuant to a domestic relations order, and the Option may be exercised
during the lifetime of the Consultant only by him. More particularly, but
without limiting the generality of the foregoing, the Option may not be
assigned, transferred (except as provided in the next preceding sentence) or
otherwise disposed of, or pledged or hypothecated in any way, and shall not be
subject to execution, attachment or other process. Any assignment, transfer,
pledge, hypothecation or other disposition of the Option attempted contrary to
the provisions of this Agreement, 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 or any attempt to make any such levy of execution,
attachment or other process 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 Corporation or any Parent or Subsidiary may
have under this Agreement or otherwise.
6. EXERCISE UPON CESSATION OF CONSULTING RELATIONSHIP. If the
Consultant incurs a termination of Consulting Relationship at any time by action
of the Corporation or any Parent or Subsidiary for Good Cause, the Option shall
terminate immediately and the Consultant 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.
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7. ADJUSTMENTS. (a) In the event there is any change in the
Common Stock of the Corporation by reason of any of a reorganization,
reclassification, recapitalization, stock split, reverse stock split, stock
dividend or otherwise, then, this Option shall, without further action of the
Committee, be adjusted to reflect such event, including as applicable,
adjustments to the (i) number and kind of Shares of Common Stock subject to this
Option, (ii) the exercise price for each Share subject to this Option, and (iii)
any other terms of this Option that are affected by the event.
(b) In the event of any (i) unusual or nonrecurring events
affecting the Corporation or the financial statements of the Corporation or any
Parent or any Subsidiary, (ii) changes in applicable laws, regulations or
accounting principles affecting the Corporation, or (iii) merger, consolidation,
combination, spin-off or other similar corporate change (other than a
transaction resulting in a Change in Control), then, the Committee may, in the
manner and to the extent that it deems appropriate and equitable to the
Consultant and consistent with the terms of the Plan, cause an adjustment to be
made to reflect such event, including as applicable, adjustments to the (A)
number and kind of Shares of Common Stock subject to this Option, (B) the
exercise price for each Share subject to this Option, and (C) any other terms of
this Option that are affected by the event.
(c) In the event of any transaction resulting in a Change in
Control of the Corporation, if no provision is made in connection with the
transaction for the continuation or assumption of this Option by, or for the
substitution of the equivalent awards of, the surviving or successor entity or a
parent thereof, then this Option [LEAVE THIS PROVISION IN IF PROVIDING FOR
ACCELERATION OF VESTING: shall be fully vested and immediately exercisable and]
shall terminate upon the effective time of such Change in Control. In the event
of such termination, Consultant will be permitted, immediately before the Change
in Control, to exercise any or all of this Option that is then exercisable or
which become exercisable upon or prior to the effective time of the Change in
Control [LEAVE IN IF ACCELERATING VESTING: (including upon the acceleration of
vesting of this Option)].
8. REGISTRATION. The shares of Common Stock subject hereto and
issuable upon the exercise hereof may not be registered under the Securities Act
and, if required upon the request of counsel to the Corporation, the Consultant
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 Corporation
may register or qualify the shares covered by the Option for sale pursuant to
the Securities Act 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) and payment to the Corporation in
accordance with the procedure prescribed herein. Each such notice shall:
(i) state the election to exercise the Option and the number
of Shares in respect of which it is being exercised;
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(ii) contain a representation and agreement as to investment
intent, if required by counsel to the Corporation with respect to
such Shares, in form satisfactory to counsel for the Corporation;
(iii) be signed by the Consultant 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 Consultant, be
accompanied by proof, satisfactory to counsel for the Corporation,
of the right of such person or persons to exercise the Option; and
(iv) be received by the Corporation 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 Corporation's executive office in Fairfield, New Jersey, 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) Upon receipt of such notice, the Corporation shall
specify, by written notice to the Consultant or to the person or persons
exercising the Option, a date and time (such date and time being herein called
the "Closing Date") and place for payment of the full purchase price of such
Shares. The Closing Date shall not be more than fifteen days from the date the
notice of exercise is received by the Corporation unless another date is agreed
upon by the Corporation and the Consultant or the person or persons exercising
the Option or is required upon advice of counsel for the Corporation in order to
meet the requirements of Section 10 hereof.
(c) Payment of the purchase price of any Shares in respect of
which the Option shall be exercised shall be made by the Consultant or such
person or persons at the place specified by the Corporation on or before the
Closing Date by delivering to the Corporation (i) a certified or bank cashier's
check payable to the order of the Corporation, or (ii) 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,
or (iii) any combination of (i) and (ii).
(d) 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 of exercise of the Option was received by the
Corporation. Anything in this Agreement to the contrary notwithstanding, any
notice of exercise given pursuant to the provisions of this Section 9 shall be
void and of no effect if all the preceding provisions of this Section 9 and the
provisions of Section 10 shall not have been complied with.
(e) The certificate or certificates for Shares as to which the
Option shall be exercised will be registered in the name of the Consultant (or
in the name of the Consultant's estate or other beneficiary if the Option is
exercised after the Consultant's death), or if the Option is exercised by the
Consultant and if the Consultant so requests in the notice exercising the
Option, will be registered in the name of the Consultant and another person
jointly, with right of survivorship, and will be delivered on the Closing Date
to the Consultant at
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the place specified for the closing, but only upon compliance with all of the
provisions of this Agreement.
(f) If the Consultant fails to accept delivery of and pay for
all or any part of the number of Shares specified in such notice upon tender or
delivery thereof on the Closing Date, 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.
(g) The Corporation 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 this Option prior to the payment to the Corporation,
upon its demand, of any amount requested by the Corporation for the purpose of
satisfying its liability, if any, to withhold 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 Consultant in cash or, with the consent of the Corporation,
by tendering to the Corporation shares of Common Stock equal in value to the
amount of the required withholding. In the alternative, the Corporation may, at
its option, satisfy such withholding requirements by withholding from the shares
of Common Stock to be delivered to the Consultant pursuant to an exercise of
this 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 Corporation's counsel of all legal matters in
connection therewith, including compliance with the requirements of the
Securities Act, the Exchange Act and the rules and regulations thereunder, and
the requirements of any stock exchange upon which the Common Stock may then be
listed.
11. RESALE OF COMMON STOCK. (a) If so requested by the
Corporation, upon any sale or transfer of the Common Stock purchased upon
exercise of the Option, the Consultant shall deliver to the Corporation an
opinion of counsel satisfactory to the Corporation to the effect that either (i)
the Common Stock to be sold or transferred has been registered under the
Securities Act and that there is in effect a current prospectus meeting the
requirements of Section 10(a) of the Securities 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 the Securities
Act.
(b) The Common Stock issued upon exercise of the Option shall
bear the following legend if required by counsel for the Corporation:
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
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THE OPINION OF COUNSEL FOR THE CORPORATION, SUCH REGISTRATION
IS NOT REQUIRED.
12. RESERVATION OF SHARES. The Corporation shall at all times
during the term of the Option reserve and keep available such number of shares
of the class of stock then subject to the Option as will be sufficient to
satisfy the requirements of this Agreement.
13. LIMITATION OF ACTION. The Consultant and the Corporation
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
Corporation or a Parent or Subsidiary, on the one hand, or against the
Consultant, 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 or by certified mail to the proper address.
All notices to the Corporation or the Committee shall be addressed to them at ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Secretary. All notices to the
Consultant shall be addressed to the Consultant at ________________________.
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 and be binding upon each successor and assign of the Corporation. All
obligations imposed upon the Consultant and all rights granted to the
Corporation under this Agreement shall be binding upon the Consultant's heirs,
legal representatives and successors.
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 New York.
18. CONSULTING RELATIONSHIP. Nothing contained in this
Agreement shall be construed as (a) a consulting contract between the Consultant
and the Corporation or any Parent or Subsidiary, (b) as a right of the
Consultant to be continued in a Consulting Relationship with the Corporation or
any Parent or Subsidiary, or (c) as a limitation of the right of the Corporation
or any Parent or Subsidiary to terminate its Consulting Relationship with the
Consultant at any time, with or without cause.
19. DEFINITIONS. Unless otherwise defined herein, all
capitalized terms shall have the same definitions as set forth under 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.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement
to be executed in its name by its Chairman, President and Chief Executive
Officer and attested by its Secretary and the Consultant has hereunto set his
hand all as of the date, month and year first above written.
COVER-ALL TECHNOLOGIES INC.
By:_____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
--------------------------------
[INSERT NAME]
ATTEST:
------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
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EXHIBIT A
NON-QUALIFIED STOCK OPTION EXERCISE FORM
[DATE]
[Corporation Name]
[Address]
[City, State and Zip Code]
Attention: Secretary
Dear Sirs:
Pursuant to the provisions of the Non-Qualified Stock Option
Agreement, dated [ ], whereby you have granted to me a non-qualified stock
option to purchase [ ] shares of Common Stock of Cover-All Technologies Inc.
(the "Corporation"), I hereby notify you that I elect to exercise my option to
purchase [ ] of the shares covered by such option at the price specified
therein. In full payment of the price for the shares being purchased hereby, I
am delivering to you herewith (a) a certified or bank cashier's check payable to
the order of the Corporation in the amount of $_____________,* or (b) a
certificate or certificates for [ ] shares of Common Stock of the Corporation,
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 Corporation, in
the amount of $_____________.** Any such stock certificate or certificates are
endorsed, or accompanied by an appropriate stock power, to the order of the
Corporation, with my signature guaranteed by a bank or trust company or by a
member firm of the New York Stock Exchange.
Very truly yours,
-------------------------------------
[Address]
(For notices, reports, dividend checks and
other communications to stockholders.)
___________________________
* $____________ of this amount is the purchase price of the shares, and the
balance represents payment of withholding taxes as follows: State $______
and Local $________. No withholding will be required in states and
localities which follow Federal tax law.
** $____________ 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: State $_________ and Local
$_________. No withholding will be required in states and localities which
follow Federal tax law.
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OPTION NO. ___-NQS0
COVER-ALL TECHNOLOGIES INC.
2005 Stock Incentive Plan
NON-QUALIFIED STOCK OPTION
Granted To
[INSERT NAME]
Optionee
[INSERT # $.
------------------ ------------------------------
Number of Shares Price per Share (Fair Market Value
on Date of Grant)
DATE GRANTED: _____________, 2006 EXPIRATION DATE: ___________, 20__