1
EXHIBIT 99.11
NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE SIGHTPATH, INC.(1)
1998 STOCK AND OPTION PLAN
------------------------------ -------------
No. of Shares of Common Stock Date of Grant
Pursuant to the SightPath, Inc. 1998 Stock and Option Plan (the "Plan"),
SightPath, Inc. (including its successors, the "Company") hereby grants to
_________________ (the "Optionee") an option to purchase ("Option") prior to the
tenth (10th) anniversary of the date of grant ("Date of Grant") of this Option
(the "Expiration Date"), at an exercise price per share of $ _____, all or any
of the number of shares of Common Stock, par value $.01 per share ("Common
Stock"), of the Company (the "Option Shares"), in accordance with the schedule
set forth in Section 1 and subject to the terms and conditions set forth herein
and in the Plan. Any terms not defined herein shall have the same meaning
defined in the Plan.
1. Vesting Schedule. Subject to the terms of the Plan and to the
determination of the Board of Directors of the Company or a designated committee
thereof (in either case, the "Board") to accelerate the vesting schedule
hereunder due to other circumstances, this Option shall become vested and
exercisable with respect to 25% of the Option Shares on the first anniversary of
the Date of Grant and 6.25% of the Option Shares at the end of each three (3)
month period thereafter. In any event this Option shall become fully vested and
exercisable with respect to all of the Option Shares four (4) years after the
Date of Grant.
Notwithstanding the foregoing, in the event that the Optionee's
employment or Service Relationship (as defined in the Plan) with the Company
and/or its Subsidiaries terminates for any reason, including the Optionee's
resignation, retirement or termination by the Company, upon the Optionee's death
or disability, or for any other reason, regardless of the circumstances thereof,
this Option may thereafter be exercised, to the extent it was exercisable on the
date of such termination as provided in Section 3 hereof, except as the Board
may otherwise determine. This Option shall be exercisable any time or times
prior to the Expiration Date, subject to earlier termination as provided herein
or the Plan.
2. Manner of Exercise. The Optionee may exercise this Option only in the
following manner: From time to time prior to the Expiration Date, the Optionee
may give written notice, in the form of Appendix A hereto, to the Company of an
election to purchase some or all of the Option Shares purchasable at the time of
such notice. Said notice shall specify the number of Option Shares to be
purchased and shall be accompanied by payment therefor in cash, certified check,
bank check or wire transfer, in U.S. funds, payable to the order of the Company
in an amount equal to the exercise price of such Option Shares. Alternatively,
the Optionee may make payment for the exercise price in the form of Option
Shares that have been beneficially owned by the Optionee for at least six months
and with a Fair Market Value equal to the exercise price.
-------------
(1) Formerly known as Clearview Technologies, Inc.
2
With the specific consent of the Board given in writing, the Optionee
may pay the exercise price by delivering to the Company a promissory note, in
form and substance acceptable to the Board, in a principal amount equal to the
exercise price of such Option Shares. No certificates for Option Shares so
purchased will be issued to Optionee until the Company has completed all steps
required by law to be taken in connection with the issue and sale of such Option
Shares, including without limitation (i) receipt of a representation from the
Optionee at the time of exercise of this Option that the Optionee is purchasing
the Option Shares for the Optionee's own account and not with a view to any sale
or distribution thereof, (ii) the agreement of the Optionee to voluntarily
restrict transfers of his or her shares under those terms and conditions set
forth in Section 7 hereof, (iii) the legending of any certificate representing
the Option Shares to evidence the foregoing representations and restrictions,
and (iv) obtaining from the Optionee payment or provision for all withholding
taxes due as a result of the exercise of this Option.
3. Termination of Employment or Service Relationship. If the Optionee's
employment or Service Relationship with the Company or a Subsidiary is
terminated other than for "cause" (as defined in the Plan), the period within
which to exercise this Option may be subject to earlier termination as set forth
in Section 5(c) of the Plan. Upon the termination for cause of Optionee's
employment or Service Relationship with the Company or any of its Subsidiaries
or upon the breach by Optionee of any covenant or agreement not to compete with
the Company or any of its Subsidiaries, the unexercised portion of this Option
shall terminate in accordance with Section 5(c) of the Plan.
4. Non-transferability. This Agreement is personal to the Optionee, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or other instrument taking effect at his or her
death or by the laws of descent and distribution. This Option is exercisable,
during the Optionee's lifetime, only by the Optionee, and thereafter, only by
the Optionee's legal representative or legatee, subject to Section 5(c)(i) of
the Plan.
5. Option Shares. The Option Shares that are the subject of this Option
are shares of Common Stock of the Company as constituted on the Date of Grant of
this Option, subject to adjustment as provided in Section 3(b) of the Plan.
6. Status of the Stock Option. This Option is not intended to qualify as
an "incentive stock option" under Section 422 of the Internal Revenue Code of
1986, as amended.
7. Restrictions on Transfer of Shares.
(a) No Transfers Unless Authorized and in Compliance with this
Agreement.
(1) None of the Option Shares now owned or hereafter
acquired shall be sold, assigned, transferred, pledged, hypothecated, given away
or in any other manner disposed of or encumbered, whether voluntarily or by
operation of law (each, a "Transfer"), unless such Transfer is in compliance
with all foreign, federal and state securities laws (including, without
limitation, the Securities Exchange Act of 1934 (the "Act")), and such Transfer
is in accordance with the terms and conditions of this Section 7. In connection
with any Transfer of Option Shares, the Company may require an opinion of
counsel to the transferor,
2
3
satisfactory to the Company, that such Transfer is in compliance with all
foreign, federal and state securities laws (including without limitation, the
Act). The Optionee agrees to give the Company prompt notice of any Transfer of
Option Shares to the Optionee's spouse, parents, children (natural or adopted),
stepchildren or grandchildren or a trust for their benefit (a "Permitted
Transferee") pursuant to Section 7(b) hereof. Any attempted disposition of
Option Shares not in accordance with the terms and conditions of this Agreement
shall be null and void, and the Company shall not reflect on its records any
change in record ownership of any Option Shares pursuant to any such
disposition, shall otherwise refuse to recognize any such disposition and shall
not in any way give effect to any such disposition of any Option Shares.
(2) Prior to making any Transfer of Option Shares (other
than to a Permitted Transferee), the Optionee shall deliver written notice (the
"Transfer Notice") to the Company. The Transfer Notice shall disclose in
reasonable detail the identity of the prospective transferees, the number of
shares to be Transferred (the "Offered Shares") and the terms and conditions of
the proposed Transfer. By giving the Transfer Notice, the Optionee shall be
deemed to have granted the Company an option to purchase the Offered Shares. The
Company may purchase all, but not less than all, of the Offered Shares upon the
same terms and conditions as those set forth in the Transfer Notice by
delivering written notice of such election to the Optionee within 20 days after
the receipt of the Transfer Notice by the Company (the "Election Period"). If
the Company has not elected to purchase or otherwise acquire all of the Offered
Shares prior to the expiration of the Election Period, the Optionee may Transfer
such Offered Shares at a price and on terms no more favorable to the transferees
thereof than specified in the Transfer Notice during the 30-day period
immediately following the expiration of the Election Period (the "Transfer
Period"). Any Offered Shares that are not Transferred within the Transfer Period
shall be subject to the provisions of this Section 7(a) upon any subsequent
Transfer. If the Company has elected to purchase any Offered Shares hereunder,
the Transfer of such Offered Shares shall be consummated as soon as practical
after the delivery of the election notice to the Optionee, but in any event
within 15 days after the expiration of the Election Period.
(b) Transfers to Permitted Transferees. Subject to the next
sentence of this Section 7(b), the Optionee may Transfer any or all of the
Option Shares without receipt of consideration or for such consideration as such
holder shall determine to Permitted Transferees. No Transfer permitted under
this Section 7(b) shall be effective unless the Permitted Transferee to whom the
Option Shares are proposed to be transferred has delivered to the Company a
written acknowledgment, the form of Appendix B hereto, that the Option Shares to
be received by it are subject to the provisions of this Agreement (including
without limitation, the provisions of this Section 7) and that the Permitted
Transferee is bound hereby and thereby.
(c) Transfers Upon Death. Upon the death of the Optionee, the
Option Shares then held by the Optionee or issued upon exercise of this Option
by the Optionee's legal representative or legatee pursuant to Section 4 hereof
may be transferred and distributed by will or other instrument taking effect at
his death or by the laws of descent and distribution to the Optionee's estate,
executors, administrators and personal representatives, and then to such
holder's heirs, legatees or distributees whether or not such heirs, legatees or
distributees are Permitted Transferees. No Transfer permitted under this Section
7(c) shall be effective unless the transferee to whom the Option Shares are
proposed to be transferred pursuant to this provision has delivered to the
Company a written acknowledgment that the Option Shares to be
3
4
received by such transferee are subject to the provisions of this Agreement
(including without limitation, the provisions of this Section 7) and that such
transferee is bound hereby and thereby.
8. Legend. Any certificate representing the Option Shares shall carry
the following legends:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the restrictions, terms and
conditions (including restrictions against transfers) contained
in a certain option agreement between the corporation and the
holder of record of this certificate (a copy of which is
available at the offices of the corporation for examination)."
and
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act or an opinion of counsel satisfactory to the corporation
is obtained to the effect that such registration is not
required."
9. Termination. The provisions of Sections 7 and 8 hereof shall
terminate upon an Initial Public Offering which for the purposes of this
Agreement shall mean the consummation of the first fully underwritten, firm
commitment public offering pursuant to an effective registration statement under
the Securities Act of 1933, as amended, other than on Forms ▇-▇, ▇-▇, ▇-▇▇ or
S-15 or their then equivalents, covering the offer and sale by the Company of
its Common Stock; or such other event as a result of or following which the
Company's Common Stock shall be publicly traded.
10. Adjustment Upon Changes in Capitalization. This Option shall be
subject to adjustment in the event of certain changes of capitalization of the
Company as set forth in Section 3(b) of the Plan.
11. Effect of Certain Transactions. In the case of (i) a merger or
consolidation which results in the voting securities of the Company outstanding
immediately prior thereto representing immediately thereafter (either by
remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than a majority of the combined voting power
of the voting securities of the Company or such surviving or acquiring entity
outstanding immediately after such merger or consolidation, (ii) the sale or
transfer of all or substantially all of the properties and assets of the Company
or (iii) the sale of shares of capital stock of the Company, in single
transaction or series of related transactions, representing at least 66_% of the
voting power of the voting securities of the Company (in each case, a
"Transaction"), this Option shall be subject to termination, assumption,
substitution, adjustment and/or limitation as provided in Section 3(c)(ii) of
the Plan.
12. Withholding Taxes. The Optionee shall be subject to the tax
withholding obligations as set forth in Section 8 of the Plan.
4
5
13. Miscellaneous.
(a) Equitable Relief. The parties hereto agree and declare that
legal remedies are inadequate to enforce the provisions of this Agreement and
that equitable relief, including specific performance and injunctive relief, may
be used to enforce the provisions of this Agreement.
(b) Change and Modifications. This Agreement may not be orally
changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Optionee.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
(d) Headings. The headings are intended only for convenience in
finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
(e) Saving Clause. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(f) Notices. All notices, requests, consents and other
communications shall be in writing and be deemed given when delivered
personally, by telex or facsimile transmission or when received if mailed by a
nationally recognized overnight carrier or by first class registered or
certified mail, postage prepaid. Notices to the Company shall be addressed to
its principal offices and to the Optionee as set forth underneath his or her
signature below, or to such other address or addresses as may have been
furnished by such party in writing to the other. Notices to any holder of the
Option Shares other than the Optionee shall be addressed to the address
furnished by such holder to the Company.
(g) Benefit and Binding Effect. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their respective
successors, assigns, legal representatives, estates, executors, administrators
and heirs. The Company has the right to assign this Agreement, and such assignee
shall become entitled to all the rights of the Company hereunder to the extent
of such assignment.
[SIGNATURE PAGE FOLLOWS]
5
6
The foregoing Option is granted as of the date first written above by
the Company, subject to the terms and conditions contained herein.
SIGHTPATH, INC.
By:
Name: _____________________________
Title: _____________________________
The foregoing Option is hereby accepted and its terms and conditions are
hereby agreed to as of the date first above written.
OPTIONEE:
Print Name:
Optionee's Address:
Social Security No.:_____________________
6
7
APPENDIX A
STOCK OPTION EXERCISE NOTICE
SightPath, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Ladies and Gentlemen:
Pursuant to the terms of Non-Qualified Stock Option Agreement (the
"Option Agreement") dated ____________ (the "Agreement") under the SightPath,
Inc. 1998 Stock and Option Plan, I, [INSERT NAME] _____________________, hereby
[CIRCLE ONE] partially/fully exercise such option by including herein payment in
the amount of $________ representing the purchase price for [FILL IN NUMBER OF
OPTION SHARES] ___________ option shares ("Option Shares"). I have chosen the
following form(s) of payment:
[ ] 1. Cash
[ ] 2. [CERTIFIED OR BANK] Check payable to SightPath, Inc.
[ ] 3. Other (as described in the Agreement (please describe):_________
In connection with the purchase of the Options Shares contemplated
hereby, I hereby represent and warrant that:
(a) I am purchasing the Option Shares for my own account for
investment only, and not for resale or with a view to the distribution thereof.
(b) I have had an opportunity to obtain from SightPath, Inc. (the
"Company") such information as is necessary to permit me to evaluate the merits
and risks of the foregoing investment in the Company and have consulted with my
advisers with respect to such investment in the Company.
(c) I am either an "accredited investor" as that term is defined
in Rule 501 promulgated under the Securities Act of 1933, as amended (the
"Act"), or have sufficient experience in business, financial and investment
matters to be able to evaluate the risks involved in the purchase of the Option
Shares and to make an informed investment decision with respect to such
purchase.
(d) I can afford a complete loss of the value of the Option
Shares and am able to bear the economic risk of holding such Option Shares for
an indefinite period.
(e) I understand that the Option Shares are not registered under
the Act or any applicable state securities or "blue sky" laws and may not be
sold or otherwise transferred or disposed of in the absence of an effective
registration statement under the Act and under any applicable state securities
or "blue sky" laws (or exemptions from the registration requirements
8
thereof). I further acknowledge that certificates representing the Option Shares
will bear restrictive legends reflecting the foregoing.
I hereby agree to restrict the Transfer (as such term is defined in the
Option Agreement) of the Option Shares in accordance with the terms and
conditions of Section 7 of the Option Agreement.
Sincerely,
Print Name:
9
APPENDIX B
ACKNOWLEDGMENT AND JOINDER AGREEMENT
The undersigned hereby acknowledges that the shares of Common Stock, par
value $.01 per share, of SightPath, Inc. (the "Company") acquired from the
transferor are subject to the terms and conditions of that certain Non-Qualified
Stock Option Agreement (the "Agreement") dated as of ________________ by and
between the Company and _____________________, including but not limited to
certain restrictions on transfer pursuant to Section 7 of the Agreement. For the
purposes of the Agreement, the undersigned shall be included within the term
"Optionee" (as defined in the Agreement) and the undersigned agrees to bound by
all of the obligations applicable to the Optionee thereunder, including Section
7 of the Agreement. The address to which notices may be sent to the undersigned
is as follows:
Address: ____________________
____________________
____________________
Date: ______________________
Name:_______________________________