Exhibit 10.39
NONQUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE TELULAR CORPORATION
AMENDED AND RESTATED STOCK INCENTIVE PLAN
PLAN 6
THIS AGREEMENT, dated August 30, 2001 by and between Telular
Corporation, a Delaware corporation (the "Company"), having its principal place
of business at Vernon Hills, Illinois, and Xxxx Xxxxxx, (the "Grantee").
WHEREAS, Grantee is an independent Director of the Company; and
WHEREAS, the Company has agreed to grant to the Director, in
consideration for his service, certain options to purchase shares of common
stock, par value $.01 per share, of the Company ("the Company Shares");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, the parties hereto, intending to be legally bound,
hereby agree as follows.
1. Grant of Options. The Company hereby conditionally grants to the
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Director options to purchase up to 417 Company Shares (the "Options"), subject
to the terms and conditions of this Option Agreement and pursuant to, and in
accordance with the terms of, the Company's Third Amended and Restated Stock
Incentive Plan ("the Plan").
2. Grant Date. The date of grant of the Option is August 30, 2001 (the
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Grant Date")
3. Option Vesting. Options shall vest as follows:
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(a) 100% of the Options shall vest on the 1st anniversary of the Grant
Date;
(b) In the event of any change in control, merger or consolidation
between the Company and any other entity (other than one in which the
stockholders of the Company prior to such transaction receive, in exchange for
their Company shares, stock of the surviving corporation and such stock
constitutes more than 50% of the outstanding stock of the surviving corporation
following such transaction), or any sale by the Company of all or substantially
all of its assets, all Options then held by the Director that have not
theretofore vested shall vest five days prior to the earlier of (i) the record
date, if any, for such transaction and (ii) the closing date of such
transaction, both subject to Section 4(a).
4. Option Term. (a) Options may be exercised in whole or in part, at any
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time or from time to time from the date upon which they vest until the
termination of such Options; provided, however, that no Option may be exercised
earlier than six months after the grant date. All Options not theretofore
exercised or terminated shall terminate, and be of no further force or effect,
on the tenth anniversary following the effective date of the Grant Date.
(b) In the event that the directorship terminates for any reason other
than cause, all Options that, as of the effective date of such termination, have
not vested shall terminate and be of no further force or effect. All vested
Options shall terminate if not exercised within 180 days after the date of
termination.
(c) In the event that the directorship terminates for fraud,
misappropriation of Company property, falsification of reports to the Company or
other instances of serious willful misconduct related to the Grantee ("Cause"),
the Option shall be cancelled immediately.
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5. Option Exercise Price. The purchase price for the Shares subject to the
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Option shall be $7.60 (the "Option Exercise Price").
6. Issuance of Company Shares. The Director shall exercise the Options by
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giving written notice thereof to the Company and paying the applicable option
exercise price to the Company by certified check or electronic wire transfer of
immediately available funds. Upon receipt of such payment, the Company shall
issue to the Director certificates evidencing the Company Shares purchased
therewith.
7. Recapitalizations, etc. If, prior to the Director's receipt of the
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Shares, the Company effects a subdivision or consolidation of interest, stock
split, dividend or distribution of Company Shares or other securities of the
Company, or other recapitalization, capital readjustment or reorganization, the
Company Shares subject to these Options under this Agreement and the applicable
option exercise price for such Options shall be adjusted as follows:
(a) after each such event the number of Company Shares that the
Director is entitled to receive with respect to any Option will be equal to the
number of Company Shares that the Director would hold by reason of (i) the
exercise of such Option immediately prior to the record date for such event and
(ii) the effect of such event upon the Company Shares received upon such
exercise, subject to further adjustment pursuant to Section 7 for subsequent
events if applicable; and
(b) the applicable option exercise price shall be adjusted ratably in
proportion to any adjustment in the number of Company Shares to be issued with
respect to any Option.
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8. Mergers, etc. If one or more corporations or partnerships merge into
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the Company, or if the Company merges or consolidates with one or more
corporations or partnerships, the Company shall cause the surviving entity to
assume the Company's obligations under this Agreement, and Company Shares
subject to these Options under this Agreement and the applicable option exercise
price for such Options shall be adjusted as follows:
(a) after each such event the number and nature of securities of the
surviving entity that the Director is entitled to receive with respect to any
Option will be equal to the number and nature of such securities that the
Director would hold by reason of (i) the exercise of such Option immediately
prior to the record date for such event and (ii) the effect of such event upon
the securities to be received upon such exercise, subject to further adjustment
pursuant to Section 6 for subsequent events if applicable; and
(b) the applicable option exercise price shall be adjusted ratably in
proportion to any adjustment in the number or nature of any securities to be
issued with respect to any Option.
9. Status as Shareholder. The Director shall not for any purpose be deemed
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to be a holder of any Company Shares pursuant to the exercise of any Options
until exercise of such Options in accordance with the terms hereof and payment
of the applicable option exercise price in full.
10. Choice of Law. This Agreement shall be governed by the laws of the
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State of Illinois, without regard to the conflict of law provisions thereof. Any
action to
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enforce or interpret this Agreement shall be triable only in courts whose situs
is in Xxxx County, Illinois.
11. Representations and Warranties. The Company represents and warrants
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to the Director that the Options have been duly and validly authorized and
issued by the Company and that the Company Shares, when issued in accordance
herewith upon payment of the option exercise price specified herein, will be
duly and validly issued, fully paid and nonassessable.
12. Miscellaneous. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective heirs, successors and
assigns; provided, however, that the Director may not assign his rights or
obligations under this Agreement, including without limitation all or any
portion of the Options, to any other person without the prior written consent of
the Company. Any notices to be given hereunder shall be effective only if in
writing and shall be deemed given when delivered in person or when sent by
reputable overnight delivery service to the following addresses:
If to the Company:
Telular Corporation
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Chief Operating Officer
Facsimile #: 000-000-0000
If to the Director:
Xxxx Xxxxxx
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or to such other address as such party may indicate by notice to the other. This
Agreement may be executed in any number of counterparts, all of which shall
constitute a single instrument.
IN WITNESS WHEREOF, the undersigned have set their hands as of the day
and year first above written.
TELULAR CORPORATION
By: ________________________________________
Xxxxxxx X. Xxxxxxx
Chairman & Chief Executive Officer
By:_________________________________________
Xxxx Xxxxxx
Director
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