1
EXHIBIT 4.9
FORM FOR NSO UNDER E-SYNC NETWORKS,
INC. 1999 LONG-TERM INCENTIVE PLAN
NONTRANSFERABLE NON-QUALIFIED STOCK
OPTION AGREEMENT dated as of
, 199 , between E-Sync
Networks, Inc., a Delaware corporation
(the "Company"), and
(the "Optionee", which term as used
herein shall be deemed to include any
successor to the Optionee by will or
by the laws of descent and
distribution, unless the context shall
otherwise require).
Pursuant to the Company's 1999 Long-Term Incentive Plan, (the "Plan"), the
Company approved the issuance to the Optionee, effective as of the date set
forth above, of a non-qualified stock option to purchase up to an aggregate of
20,000 shares of Common Stock, $.01 par value, of the Company (the "Common
Stock"), at the price (the "Option Price") of [$ ] [the fair market
value of a share of Common Stock on the date the Optionee became a Non-Employee
Director (or, if later, April 9, 1999)], upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. OPTION; OPTION PRICE. On behalf of the Company, the Committee hereby
grants to the Optionee the option (the "Option") to purchase, subject to the
terms and conditions of this Agreement and the Plan (which is incorporated by
reference herein and which in all cases shall control in the event of any
conflict with the terms, definitions and provisions of this Agreement), 20,000
shares of Common Stock of the Company at an exercise price per share equal to
the Option Price, which Option is not intended to qualify for federal income tax
purposes as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"). A copy of the Plan as in
effect on the date hereof has been supplied to the Optionee, and the Optionee
hereby acknowledges receipt thereof.
2. TERM. The term (the "Option Term") of the Option shall commence on the
date of this Agreement and shall expire on the tenth anniversary of the date of
this Agreement, unless such Option shall theretofore have been terminated in
accordance with the terms hereof or of the Plan.
3. TIME OF EXERCISE. Except as otherwise provided herein, the Option
shall become exercisable as to the total number of shares of Common Stock
subject to the Option on the first anniversary of the date hereof. Subject to
the provisions hereof, shares as to which the Option becomes exercisable
pursuant to the foregoing provisions may be purchased at any time thereafter
prior to the expiration or termination of the Option.
4. TERMINATION OF OPTION. The unexercised portion of the Option (whether
or not yet exercisable) (the "Unexercised Portion") shall automatically
terminate and shall become null and void and be of no further force or effect
upon the first to occur of the following:
(i) the expiration of the Option Term; or
(ii) prior to the first anniversary of the date hereof, the voluntary
resignation from the Company's Board of Directors of the Optionee (but
excluding voluntary resignation following a Change of Control prior to such
first anniversary). For purposes of this Section 4, "Change of Control"
shall mean (i) any merger or consolidation or other corporate
reorganization of the Company in which the Company is not the surviving
entity (other than the merger of Wiltek, Inc. into the Company); or (ii)
any sale of all or substantially all of the Company's assets, in either a
single transaction or a series of transactions; or (iii) a liquidation of
all or substantially all of the Company's assets; or (iv) if there is a
change within one twelve-month period of a majority of the directors
constituting the Company's Board of Directors at the
2
beginning of such twelve-month period; or (v) if a single person or entity,
or a related group of persons or entities, at any time subsequent to the
date of grant acquires beneficial ownership of 25% or more of the Company's
outstanding voting securities; unless, with respect to clause (iv), the
change of directors is approved by the Board of Directors as constituted
prior to such change; or
(iii) except to the extent permitted by Section 10 hereof, the date on
which the Option or any part thereof or right or privilege relating thereto
is transferred (otherwise than by will or the laws of descent and
distribution), assigned, pledged, hypothecated, attached or otherwise
disposed of by the Optionee.
5. PROCEDURE FOR EXERCISE. (a) The Option may be exercised, from time to
time, in whole or in part (but for the purchase of whole shares only), by
delivery of a written notice (the "Notice") from the Optionee to the Secretary
of the Company, which Notice shall:
(i) state that the Optionee elects to exercise the Option;
(ii) state the number of shares of Common Stock with respect to which
the Option is being exercised (the "Optioned Shares");
(iii) state the method of payment for the Optioned Shares pursuant to
Section 5(b) hereof;
(iv) state the date upon which the Optionee desires to consummate the
purchase of the Optioned Shares (which date must be prior to the
termination of such Option and no later than 30 days from the delivery of
such Notice);
(v) include any representations of the Optionee required under Section
8(b) hereof; and
(vi) if the Option shall be exercised pursuant to Section 10 hereof by
any person other than the Optionee, include evidence to the satisfaction of
the Committee of the right of such person to exercise the Option.
(b) Payment of the Option Price for the Optioned Shares shall be made (i)
in cash or by personal or certified check, (ii) by delivery of stock
certificates (in negotiable form) representing shares of Common Stock that have
been owned of record by the Optionee for at least six months prior to the date
of exercise and that have a Fair Market Value on the date of exercise equal to
the product of (A) the number of Optioned Shares which are being purchased
pursuant to the exercise of such Option, multiplied by (B) the applicable Option
Price, (iii) a combination of either of the methods set forth in clauses (i) and
(ii) above, (iv) (A) by arrangements which are acceptable to the Committee and
as permitted by applicable law whereby the Optionee relinquishes a portion of
the Option, or (B) in compliance with any other cashless exercise program
authorized by the Committee for use in connection with the Plan at the time of
such exercise, or (v) in such other form of consideration as shall be acceptable
to the Committee. For the purpose of the preceding clause (iv)(A), the fair
market value of the portion of the Option that is relinquished shall be the Fair
Market Value at the time of exercise of the number of Optioned Shares subject to
the portion of the Option that is relinquished less the aggregate Option Price
specified in the Option with respect to such Optioned Shares.
(c) The Company shall issue a stock certificate in the name of the Optionee
(or such other person exercising the Option in accordance with the provisions of
Section 10 hereof) for the Optioned Shares as soon as practicable after receipt
of the Notice and payment of the aggregate Option Price for such shares.
6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall not have any privileges
of a stockholder of the Company with respect to any Optioned Shares until the
date of issuance of a stock certificate pursuant to Section 5(c) hereof.
7. ADJUSTMENTS. If the outstanding shares of Common Stock of the Company
are increased, decreased, or exchanged for a different number or kind of shares
or other securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Common Stock or other
securities, through merger, consolidation, sale of all of substantially all of
the property of the Company, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split or other distribution with
respect to such shares of Common Stock or other securities, then an appropriate
and proportionate adjustment shall be made in (i) the number and kind of shares
or other securities subject to the
2
3
Option and (ii) the price for each share or other unit of any other securities
subject to the Option without change in the aggregate purchase price or value as
to which such Option remains exercisable or subject to restrictions. Any
adjustment under this Section 7 shall be made by the Company's Board of
Directors, whose determination as to what adjustments shall be made and the
extent thereof will be final, binding and conclusive. No fractional interests
will be issued under the Plan resulting from any such adjustment.
8. ADDITIONAL PROVISIONS RELATED TO EXERCISE. (a) The Option shall be
exercisable only on such date or dates and during such period and for such
number of shares of Common Stock as are set forth in this Agreement.
(b) To exercise the Option, the Optionee shall follow the procedures set
forth in Section 5 hereof. Unless at the time of exercise of the Option there
shall be, in the opinion of counsel for the Company, a valid and effective
registration statement under the Securities Act of 1933 (the "'33 Act") and
appropriate qualification and registration under applicable state securities
laws relating to the Optioned Shares being acquired pursuant to the Option, the
Optionee shall be required, upon exercise of the Option, to give to the Company
a written representation, in a form reasonably satisfactory to the Company, that
he or she is acquiring the Optioned Shares for his or her own account for
investment and not with a view to, or for sale in connection with, the resale or
distribution of any such shares. The Optionee shall be further required to agree
that he or she will not sell or transfer any Optioned Shares acquired pursuant
to exercise of the Option until he or she requests and receives an opinion of
the Company's counsel to the effect that such proposed sale or transfer will not
result in a violation of the '33 Act, or a registration statement covering the
sale or transfer of the shares has been declared effective by the Securities and
Exchange Commission, or he or she obtains a no-action letter from the Securities
and Exchange Commission with respect to the proposed transfer.
(c) Stock certificates representing shares of Common Stock acquired upon
the exercise of the Option that have not been registered under the Securities
Act shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT OR AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE COMPANY THAT SUCH SALE, OFFER FOR SALE, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION DOES NOT VIOLATE THE PROVISIONS OF SUCH ACT OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT.
9. NO EVIDENCE OF EMPLOYMENT OR SERVICE. Nothing contained in the Plan or
this Agreement shall confer upon the Optionee any right to continue in the
employ of a Participating Company (as defined in the Plan) or interfere in any
way with the right of a Participating Company (subject to the terms of any
separate agreement to the contrary) to terminate the Optionee's employment or to
increase or decrease the Optionee's compensation at any time.
10. RESTRICTION ON TRANSFER. The Option may not be transferred, pledged,
assigned, hypothecated or otherwise disposed of in any way by the Optionee,
except by will or by the laws of descent and distribution or as may otherwise be
required by law, and may be exercised during the lifetime of the Optionee only
by the Optionee. The Option shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment or similar process upon the Option, shall be null
and void and without effect.
11. DISQUALIFYING DISPOSITIONS; TAXES. Whenever shares of Common Stock
are to be delivered to the Optionee upon exercise of the Option, the Company
shall be entitled to require as a condition of delivery that the Optionee remit
or, in appropriate cases, agree to remit when due, an amount sufficient to
satisfy all current or estimated future federal, state and local withholding tax
and employment tax requirements relating thereto; provided, however, if such
funds are not so remitted to the Company and at such time the Optionee is an
Employee of a Participating Company, the Company may withhold such portion of
the Optionee's salary as is equal to the amount of such tax requirements.
3
4
12. NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally-recognized overnight courier or (iii) sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to the Optionee, to the address set forth on the signature page
hereto; and
If to the Company, to:
E-Sync Networks, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary;
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered or if sent by nationally-recognized overnight courier, and
(ii) on the third Business Day (as hereinafter defined) following the date on
which the piece of mail containing such communication is posted, if sent by
mail. As used herein, "Business Day" means a day that is not a Saturday, Sunday
or a day on which banking institutions in the city to which the notice or
communication is to be sent are not required to be open.
13. NO WAIVER. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
14. OPTIONEE UNDERTAKING. The Optionee hereby agrees to take whatever
additional actions and execute whatever additional documents the Company may in
its reasonable judgment deem necessary or advisable in order to carry out or
effect one or more of the obligations or restrictions imposed on the Optionee
pursuant to the express provisions of this Agreement.
15. MODIFICATION OF RIGHTS. The rights of the Optionee are subject to
modification and termination in certain events as provided in this Agreement and
the Plan.
16. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts made
and to be wholly performed therein.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18. ENTIRE AGREEMENT. This Agreement and the Plan constitute the entire
agreement between the parties with respect to the subject matter hereof, and
supersede all previously written or oral negotiations, commitments,
representations and agreements with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Nontransferable
Incentive Stock Option Agreement as of the date first written above.
E-SYNC NETWORKS, INC.
By:
--------------------------------------
Name:
Title:
OPTIONEE:
--------------------------------------
Name:
--------------------------------------
Address:
--------------------------------------
--------------------------------------
--------------------------------------
4