Exhibit (4.5)
EDISON CONTROL CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
EDISON CONTROL CORPORATION, a New Jersey corporation (the
"Company"), hereby grants to ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Optionee"), in consideration
for services to be provided, an option to purchase a total of 876 shares
(the "Shares") of Common Stock of the Company, at the price determined as
provided herein.
1. Nature of the Option. This Option is a non-qualified
option and is not intended to qualify for incentive stock option special
tax benefits to Optionee.
2. Exercise Price. The exercise price is $3.00 for each share
of Common Stock.
3. Exercise of Option. Subject to Section 6 hereof, this
Option shall be exercisable during its term as follows:
(i) Right to Exercise. The Options granted hereunder
shall vest and become exercisable on the first anniversary of
the date of this Agreement.
(ii) Method of Exercise. This Option shall be exercisable
from time to time by written notice which shall state the number
of Shares in respect of which this Option is being exercised,
and which shall contain or be accompanied by such other
representations and agreements as to the holder's investment
intent with respect to such Shares of Common Stock as may
reasonably be required by the Company. Such written notice
shall be signed by Optionee and shall be delivered in person or
by certified mail to the Secretary of the Company. The written
notice shall be accompanied by payment of the exercise price.
No Shares will be issued pursuant to the exercise of this
Option unless such issuance and such exercise shall comply with
all relevant provisions of law and the requirements of any stock
exchange upon which the Shares may then be listed.
(iii) Number of Shares Exercisable. Each exercise of
an Option hereunder shall reduce, pro tanto, the total number of
Shares that may thereafter be purchased under such Option.
4. Optionee's Representations. In the event the Shares
purchasable pursuant to the exercise of this Option have not been
registered under the Securities Act of 1933, as amended ("Securities
Act"), at the time this Option is exercised, Optionee shall, concurrently
with the exercise of all or any portion of this Option, deliver to the
Company his Investment Representation Statement in the form attached
hereto as Exhibit A.
5. Method of Payment. Payment of the exercise price shall be
by any of the following, or a combination thereof:
(i) cash or certified check; or
(ii) if authorized by the Board, surrender to the Company
of other shares of common stock of the Company having a fair
market value on the date of surrender equal to the aggregate
exercise price of the Shares as to which this Option is being
exercised. The fair market value of the shares so surrendered
shall be determined by the Board in its sole discretion;
provided, however, that where there is a public market for the
common stock, the value per Share shall be the mean of the bid
and asked prices of the common stock on the last business day
prior to the date of exercise, as reported on the date of
exercise in The Wall Street Journal (or, if not so reported, as
otherwise reported in the National Association of Securities
Dealers Automated Quotation (NASDAQ) System) or, in the event
the common stock is listed on a stock exchange, the value per
Share shall be the mean of the highest and lowest sales price of
the common stock on such exchange on the last business day prior
to the date of exercise, as reported in The Wall Street Journal.
6. Restrictions on Exercise. This Option may not be exercised
if the issuance of such Shares upon such exercise or the method of payment
of consideration for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation. As a
condition to the exercise of this Option, the Company may require Optionee
to make any representation and warranty to the Company as may be required
by any applicable law or regulation.
7. Termination of Status as an Employee. If Optionee's
employment is terminated by the Company for Cause at any time, Options
granted hereunder (both unvested Options and vested but unexercised
Options) shall immediately terminate. If Optionee's employment is
terminated by the Company at any time for a reason other than for Cause,
Options granted herewith (both invested Options and vested, but
unexercised Options) shall be immediately exercisable for a period of
three (3) months from the date of termination of employment. If Optionee
voluntarily terminates his employment with the Company at any time,
unvested Options shall immediately terminate and vested Options shall be
immediately exercisable for a period of three (3) months from the date of
termination of employment.
For purposes of this Agreement, a termination shall be for Cause
only if the Board of Directors of the Company shall determine that any one
or more of the following has occurred:
(i) the commission by the Optionee of a felony, fraud,
embezzlement or an act of serious criminal moral turpitude; or
(ii) the Optionee shall have committed a material breach of
any one or more of the management policies and directives of the
Company and such breach shall have continued in effect for a
period of thirty (30) days after written notice to the Optionee
specifying such breach in reasonable detail.
8. Disability of Optionee. Notwithstanding the provision of
Section 7 above, if Optionee is unable to continue his employment with the
Company as a result of his permanent and total disability (as defined in
Section 22(e)(3) of the Code), he may, but only within three (3) months
from the date of termination of employment or consulting relationship,
exercise his Option to the extent he was entitled to exercise it at the
date of such termination. To the extent that he was not entitled to
exercise this Option at such date, or if he does not exercise it within
the time specified herein, this Option shall terminate.
9. Death of Optionee. Upon the death of Optionee, this Option
shall terminate and be of no further effect, except that if Optionee's
death occurs during the term of this Option and at the time of his death,
Optionee was an Employee of the Company and had been in continuous status
as an Employee since the date of grant of the Option, this Option may be
exercised, at any time within three (3) months following the date of
Optionee's death, by Optionee's estate or by a person who acquired the
right to exercise the Option by bequest or inheritance, but only as to the
number of Shares subject to this Option as to which the right to exercise
had accrued to the Optionee at the date of death.
10. Non-Transferability of Option. This Option may not be
sold, pledged, assigned, hypothecated, transferred or disposed of in any
manner other than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by him. The terms
of this Option shall be binding upon the executors, administrators, heirs
and successors of Optionee.
11. Term of Option. This Option may not be exercised more than
ten (10) years from the date of grant of this Option.
12. Registration. This Company shall register the shares on a
registration statement on Form S-8 within one year of the date hereof.
DATE OF GRANT: June 21, 1996
EDISON CONTROL CORPORATION
a New Jersey corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
Agreed to this 21st day of June, 1996.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT A
INVESTMENT REPRESENTATION STATEMENT
PURCHASER :
SELLER : EDISON CONTROL CORPORATION
COMPANY : EDISON CONTROL CORPORATION
SECURITY : COMMON STOCK
AMOUNT :
DATE :
In connection with the purchase of the above-listed Securities,
I, the Purchaser, represent to the Seller and to the Company, the
following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired all such information about the Company as I
deem necessary and appropriate to enable me to reach an informed and
knowledgeable decision to acquire the Securities. I am purchasing these
Securities for my own account for investment and not with a view to, or
for the resale in connection with, any "distribution" thereof for purposes
of the Securities Act of 1933, as amended ("Securities Act").
(b) I understand that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom,
which exemption depends upon, among other things, the bona fide nature of
my investment intent as expressed herein.
(c) I further understand that the Securities may not be sold
publicly and must be held indefinitely unless they are subsequently
registered under the Securities Act or unless an exemption from
registration is available. I am able, without impairing my financial
condition, to hold the Securities for an indefinite period of time and to
suffer a complete loss on my investment. I understand that the Company is
under no obligation to register the Securities. In addition, I understand
that the certificate evidencing the Securities will be imprinted with a
legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel
for the Company.
(d) I am familiar with the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions, including,
among other things: (1) the availability of certain public information
about the Company; (2) the resale occurring not less than two years after
the party has purchased, and made full payment for, within the meaning of
Rule 144, the securities to be sold; and, in the case of an affiliate, or
of a non-affiliate who has held the securities less than three years (3)
the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term
is defined under the Securities Exchange Act of 1934) and the amount of
securities being sold during any three month period not exceeding the
specified limitations stated therein, if applicable.
(e) I further understand that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under
the Securities Act, compliance with Regulation A, or some other
registration exemption will be required; and that, notwithstanding the
fact that Rule 144 is not exclusive, the Staff of the Securities and
Exchange Commission has expressed its opinion that persons proposing to
sell private placement securities other than in a registered offering and
otherwise than pursuant to Rule 144 will have a substantial burden of
proof in establishing that an exemption from registration is available for
such offers or sales, and that such person and their respective brokers
who participate in such transactions do so at their own risk.
Signature of Purchaser:
_________________________________
Date:______________________, 19__
