EXHIBIT 99.4
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NON-QUALIFIED STOCK OPTION AGREEMENT
NATIONAL DATACOMPUTER, INC.
AGREEMENT made as of the __ day of _________ 200_, between
National
Datacomputer, Inc. (the "Company"), a Delaware corporation,
_____________, and
_______________ (the "Participant").
WHEREAS, the Company desires to grant to the Participant an Option
to
purchase shares of its common stock, $.001 par value per share (the
"Shares"),
under and for the purposes set forth in the Company's 2007
Employee, Director
and Consultant Stock Plan (the "Plan");
WHEREAS, the Company and the Participant understand and agree that
any
terms used and not defined herein have the same meanings as in the
Plan; and
WHEREAS, the Company and the Participant each intend that the
Option
granted herein shall be a Non-Qualified Option.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter
set forth and for other good and valuable consideration, the
parties hereto
agree as follows:
1. GRANT OF
OPTION.
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The Company hereby grants to the Participant the right and option
to
purchase all or any part of an aggregate of _______________ Shares,
on the terms
and conditions and subject to all the limitations set forth herein,
under United
States securities and tax laws, and in the Plan, which is
incorporated herein by
reference. The Participant acknowledges receipt of a copy of the
Plan.
2. PURCHASE
PRICE.
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The purchase price of the Shares covered by the Option shall be
$_____
per Share, subject to adjustment, as provided in the Plan, in the
event of a
stock split, reverse stock split or other events affecting the
holders of Shares
after the date hereof (the "Purchase Price"). Payment shall be made
in
accordance with Paragraph 9 of the Plan.
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3.
EXERCISABILITY OF OPTION.
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Subject to the terms and conditions set forth in this Agreement and
the
Plan, the Option granted hereby shall become exercisable as
follows:
On the first anniversary of the date
up to ____________ Shares
of this
Agreement
On the second anniversary of the date
an additional __________ Shares
of this
Agreement
On the third anniversary of the date
an additional
__________ Shares
of this
Agreement
On the fourth anniversary of the date
an additional __________ Shares
of this
Agreement
The foregoing rights are cumulative and are subject to the other
terms
and conditions of this Agreement and the Plan.
Notwithstanding the foregoing, in the event of a Change of Control
(as
defined below), __% of the Shares which would have vested in each
vesting
installment remaining under this Option will be vested for purposes
of Section
24(B) of the Plan unless this Option has otherwise expired or been
terminated
pursuant to its terms or the terms of the Plan.
Change of Control means the occurrence of any of the following
events:
(i)
Ownership. Any "Person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) becomes the "Beneficial Owner" (as defined in Rule
13d-3 under said Act), directly or indirectly, of
securities of the Company representing 50% or more of the
total voting power represented by the Company's then
outstanding voting securities (excluding for this purpose
the Company or its Affiliates or any employee benefit plan
of the Company) pursuant to a transaction or a series of
related transactions which the Board of Directors does not
approve; or
(ii) Merger/Sale
of Assets. A merger or consolidation of the
Company whether or not approved by the Board of Directors,
other than a merger or consolidation which would result in
the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting
securities of the surviving entity or the parent of such
corporation) at least 50% of the total voting power
represented by the voting securities of the Company or such
surviving entity or parent of such corporation outstanding
immediately after such merger or consolidation, or the
stockholders of the Company
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approve an agreement for the sale or disposition by the
Company of all or substantially all of the Company's
assets; or
(iii) Change in Board
Composition. A change in the composition of
the Board of Directors, as a result of which fewer than a
majority of the directors are Incumbent Directors.
"Incumbent Directors" shall mean directors who either (A)
are directors of the Company as of the date the Plan was
approved by the directors, or (B) are elected, or nominated
for election, to the Board of Directors with the
affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but
shall not include an individual whose election or
nomination is in connection with an actual or threatened
proxy contest relating to the election of directors to the
Company).
4. TERM OF
OPTION.
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This Option shall terminate ten years from the date of this
Agreement,
but shall be subject to earlier termination as provided herein or
in the Plan.
If the Participant ceases to be an employee, director or consultant
of
the Company or of an Affiliate (for any reason other than the death
or
Disability of the Participant or termination of the Participant for
"cause" (as
defined in the Plan), the Option may be exercised, if it has not
previously
terminated, within three months after the date the Participant
ceases to be an
employee, director or consultant of the Company or an Affiliate, or
within the
originally prescribed term of the Option, whichever is earlier, but
may not be
exercised thereafter. In such event, the Option shall be
exercisable only to the
extent that the Option has become exercisable and is in effect at
the date of
such cessation of service.
Notwithstanding the foregoing, in the event of the
Participant's
Disability or death within three months after the termination of
service, the
Participant or the Participant's Survivors may exercise the Option
within one
year after the date of the Participant's termination of service,
but in no event
after the date of expiration of the term of the Option.
In the event the Participant's service is terminated by the Company
or
an Affiliate for "cause" (as defined in the Plan), the
Participant's right to
exercise any unexercised portion of this Option shall cease
immediately as of
the time the Participant is notified his or her service is
terminated for
"cause," and this Option shall thereupon terminate. Notwithstanding
anything
herein to the contrary, if subsequent to the Participant's
termination, but
prior to the exercise of the Option, the Board of Directors of the
Company
determines that, either prior or subsequent to the Participant's
termination,
the Participant engaged in conduct which would constitute "cause,"
then the
Participant shall immediately cease to have any right to exercise
the Option and
this Option shall thereupon terminate.
In the event of the Disability of the Participant, as determined
in
accordance with the Plan, the Option shall be exercisable within
one year after
the Participant's termination of service or, if earlier, within the
term
originally prescribed by the Option. In such event, the Option
shall be
exercisable:
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(a) to the extent that
the Option has become exercisable but has not
been exercised as of the date of Disability; and
(b) in the event
rights to exercise the Option accrue periodically, to
the extent of a pro rata portion through the date of Disability
of
any additional vesting rights that would have accrued on the
next
vesting date had the Participant not become Disabled. The
proration shall be based upon the number of days accrued in the
current vesting period prior to the date of Disability.
In the event of the death of the Participant while an employee,
director or consultant of the Company or of an Affiliate, the
Option shall be
exercisable by the Participant's Survivors within one year after
the date of
death of the Participant or, if earlier, within the originally
prescribed term
of the Option. In such event, the Option shall be exercisable:
(x) to the extent that
the Option has become exercisable but has not
been exercised as of the date of death; and
(y) in the event
rights to exercise the Option accrue periodically, to
the extent of a pro rata portion through the date of death of
any
additional vesting rights that would have accrued on the next
vesting date had the Participant not died. The proration shall
be
based upon the number of days accrued in the current vesting
period prior to the Participant's date of death.
5. METHOD OF
EXERCISING OPTION.
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Subject to the terms and conditions of this Agreement, the Option
may
be exercised by written notice to the Company or its designee, in
substantially
the form of Exhibit A attached hereto. Such notice shall state the
number of
Shares with respect to which the Option is being exercised and
shall be signed
by the person exercising the Option. Payment of the purchase price
for such
Shares shall be made in accordance with Paragraph 9 of the Plan.
The Company
shall deliver such Shares as soon as practicable after the notice
shall be
received, provided, however, that the Company may delay issuance of
such Shares
until completion of any action or obtaining of any consent, which
the Company
deems necessary under any applicable law (including, without
limitation, state
securities or "blue sky" laws). The Shares as to which the Option
shall have
been so exercised shall be registered in the Company's share
register in the
name of the person so exercising the Option (or, if the Option
shall be
exercised by the Participant and if the Participant shall so
request in the
notice exercising the Option, shall be registered in the Company's
share
register in the name of the Participant and another person jointly,
with right
of survivorship) and shall be delivered as provided above to or
upon the written
order of the person exercising the Option. In the event the Option
shall be
exercised, pursuant to Section 4 hereof, by any person other than
the
Participant, such notice shall be accompanied by appropriate proof
of the right
of such person to exercise the Option. All Shares that shall be
purchased upon
the exercise of the Option as provided herein shall be fully paid
and
nonassessable.
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6. PARTIAL
EXERCISE.
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Exercise of this Option to the extent above stated may be made in
part
at any time and from time to time within the above limits, except
that no
fractional share shall be issued pursuant to this
