Exhibit (a)(5)
DATED 2001
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AIRSPAN NETWORKS INC.
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AIRSPAN COMMUNICATIONS LIMITED
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[OPTIONHOLDER]
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JOINT ELECTION
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BETWEEN:
(1) AIRSPAN NETWORKS INC. whose address is 00000 Xxxx Xxxxxxx Xxxx.,
Xxxxxxx, Xxxxxxx 00000 XXX (the "Company"); and
(2) AIRSPAN COMMUNICATIONS LIMITED (Company Registration No. 3501881) whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxx XX0 0XX (the "Employer");
(3) [INSERT NAME OF OPTIONHOLDER] of [insert address of Optionholder] (the
"Optionholder" which shall include his executors or administrators in
the case of his death).
INTRODUCTION
(A) The Optionholder has been granted an option (the "Option") to acquire
[insert number of Shares] shares of common stock in the Company (the
"Shares") on terms set out in a non-qualified stock option agreement
issued to the Optionholder and which will be subject to the [insert
plan] (the "Plan").
(B) This Joint Election is in an approved format. The exercise,
cancellation, release, assignment or other disposal of the Option is
subject to the Optionholder entering into this joint election (the
"Joint Election").
(C) The Optionholder is currently an employee of the Employer.
(D) The exercise, release, cancellation, assignment or other disposal of
the Option (a "Trigger Event") (whether in whole or in part), may
result in the Employer or, if and to the extent that there is a change
in law, any other company or person who becomes the secondary
contributor for National Insurance contributions ("NIC") purposes at
the time of such Trigger Event having a liability to pay employer's
(secondary) Class I NICs (or any tax or social security premiums which
may be introduced in substitution or in addition thereto) in respect of
such Trigger Event.
(E) Where the context so admits, any reference in this Joint Election:
(i) to the singular number shall be construed as if it referred
also to the plural number and vice versa;
(ii) to the masculine gender shall be construed as though it
referred also to the feminine gender; and
(iii) to a statute or statutory provision shall be construed as if
it referred also to that statute or provision as for the time
being amended or re-enacted.
AGREED TERMS
1. Joint Election
1.1 It is a condition of the exercise, cancellation, release or other
disposal of the Option to the Optionholder that he has entered into
this Joint Election with the Employer.
1.2 The Optionholder, the Company and the Employer elect to transfer the
liability (the "Liability") for all of the employer's (Secondary) Class
I NICs, referred to in (D) above and charged on payments or other
benefits arising on a Trigger Event and treated as remuneration and
earnings pursuant to section 4(4)(a) of the Social Security
Contributions and Benefit Xxx 0000 ("SSCBA") to the Optionholder. This
Joint Election is made pursuant to an arrangement authorised by
paragraph 3B, Schedule 1 of the SSCBA.
2. Restriction on registration until liability paid by Optionholder
The Optionholder hereby agrees that no Shares shall be registered in
his name until he has met the Liability as a result of a Trigger Event
in accordance with this Joint Election.
3. Payment
3.1 The Optionholder and the Employer agree that funds to meet the
Liability shall be paid to the Collector of Taxes or other relevant
taxation authority by the Employer on the Optionholder's behalf within
14 days of the end of the income tax month in which the gain on the
Option was made ("the 14 day period") and for the purposes of securing
payment of the Liability the Optionholder will on the occurrence of a
Trigger Event:
(a) pay to the Employer a cash amount equal to the Liability;
and/or
(b) suffer a deduction from salary or other remuneration due to
the Optionholder such deduction being in an amount not
exceeding the Liability; and/or
(c) enter into such arrangement or arrangements necessary or
expedient with such person or persons (including the
appointment of a nominee on behalf of the Optionholder) to
effect the sale of Shares acquired through the exercise of the
Option to cover all or any part of the Liability and use the
proceeds to pay the Employer a cash amount equal to the
Liability.
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3.2 The Optionholder hereby irrevocably appoints the Company and the
Employer as his attorney with full power in his name to execute or sign
any document and do any other thing which the Company or the Employer
may consider desirable for the purpose of giving effect to the
Optionholder satisfying the Liability under clause 3.1 and satisfying
any penalties and interest under clause 3.4. The Optionholder further
agrees to ratify and confirm whatever the Company and the Employer may
lawfully do as his attorney. In particular, the Employer and/or the
Company will have the right to enter into such an arrangement (as
envisaged by clause 3.1(c)) on the Optionholder's behalf to sell
sufficient of the Shares issued or transferred to the Optionholder on
the exercise of the Option to meet the Liability pursuant to clause 3.1
and any penalty or interest arising under clause 3.4.
3.3 The Employer shall pass all monies it has collected from the
Optionholder in respect of the Liability to the Collector of Taxes by
no later than 14 days after the end of the income tax month in which
the Trigger Event occurred. The Employer shall be responsible for any
penalties or interest that may arise in respect of the Liability from
any failure on its part after it has collected any monies from the
Optionholder to pass the Liability to the Collector of Taxes within the
said 14 days period.
3.4 If the Optionholder has failed to pay all or part of the Liability to
the Employer within the 14 day period the Optionholder hereby
indemnifies the Employer against such penalties or interest that the
Employer would have to pay in respect of the late payment of all or
part of the Liability to the Collector of Taxes.
4. Termination of Joint Election
4.1 This Joint Election shall cease to have effect on the occurrence of any
of the following:
(a) if the terms of this Joint Election are satisfied in the
reasonable opinion of the Company, the Employer and the
Optionholder;
(b) if the Company, the Employer and the Optionholder jointly
agree in writing to revoke this Joint Election;
(c) if the Inland Revenue withdraws approval of this Joint
Election so far as it relates to share options covered by the
Joint Election but not yet granted;
(d) if the Option shall lapse or the Option is otherwise not
capable of being exercised pursuant to the Plan; and/or
(e) if the Company and/or the Employer serve notice on the
Optionholder that the Joint Election is to cease to have
effect.
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5. Further assurance
5.1 The Company, Employer and the Optionholder shall do all such things and
execute all such documents as may be necessary or desirable to ensure
that this Joint Election complies with all relevant legislation and/or
Inland Revenue requirements.
5.2 The Optionholder shall notify the Employer in writing of any Trigger
Event which occurs in relation to the Option within three days of such
Trigger Event.
5.3 The Company intends, as soon as practicable, to notify the Employer of
the Optionholder's intention of exercising the Option and shall provide
the Employer with such information available to the Company to enable
the Employer to calculate the Liability arising on the Trigger Event.
6. Secondary Contributor
6.1 The Employer enters into this Joint Election on its own behalf and on
behalf of the Company, or, if and to the extent that there is a change
in law, any other company or person who is or becomes a secondary
contributor for NIC purposes in respect of this Option. It is agreed
that the Employer can enforce the terms of this Joint Election against
the Optionholder on behalf of any such company.
7. Binding Effect
7.1 The Optionholder agrees to be bound by the terms of this Joint Election
and for the avoidance of doubt the Optionholder shall continue to be
bound by the terms of this Joint Election regardless of which country
the Optionholder is working in when the Liability arises and regardless
of whether the Optionholder is an employee of the Employer when the
Liability arises.
7.2 The Employer and the Company agree to be bound by the terms of this
Joint Election and for the avoidance of doubt the Employer and Company
shall continue to be bound by the terms of this Joint Election
regardless of which country the Optionholder is working in when the
Liability arises and regardless of whether the Optionholder is an
employee of the Employer when the Liability arises.
8. Governing Law
8.1 This Joint Election shall be governed by and construed in accordance
with English law and the parties irrevocably submit to the
non-exclusive jurisdiction of the English Courts to settle any claims,
disputes or issues which may arise out of this deed.
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This Joint Election has been executed and delivered as a deed on the date
written above.
SIGNED as a Deed )
by [insert name of Optionholder] )
)
in the presence of: )
Witness signature:
Name:
Address:
Occupation:
SIGNED as a DEED )
by AIRSPAN COMMUNICATIONS )
LIMITED acting by: )
Director
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Director/Secretary
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SIGNED as a DEED )
By AIRSPAN NETWORKS INC. )
acting by the under-mentioned person(s) )
acting on the authority of the Company in )
accordance with the laws of the territory of )
its incorporation: )
Authorised signatory
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Authorised signatory
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INSTRUCTIONS TO JOINT ELECTION FORMS
TO TRANSFER EMPLOYER'S
SECONDARY CLASS 1 NATIONAL INSURANCE LIABILITY
IN RELATION TO THE AIRSPAN NETWORKS INC.
1998 STOCK OPTION AND RESTRICTED STOCK PLAN, AS AMENDED
AND
THE 2001 SUPPLEMENTAL STOCK OPTION PLAN
When a UK employee exercises stock options, a National Insurance Contribution
("NIC") is incurred by both the employee and the employer on the amount that is
recognized as employment income on the exercise. Legislation was enacted in July
of 2000 enabling companies in the U.K. to reach an agreement with their
employees to transfer the liability for the employer's contribution to the stock
option holder.
Consistent with the practice of other U.K. companies, Airspan Networks Inc.
("Airspan") has adopted this policy for all stock options granted under Airspan
Networks Inc. 1998 Stock Option and Restricted Stock Plan, as amended (the "1998
Plan"), and the Airspan Networks Inc. 2001 Supplemental Stock Option Plan (the
"2001 Plan") on and after October 1, 1999. UK employees will be requested to
sign a separate Joint Election Form document for each of the 1998 Plan and the
2001 Plan that will formally transfer the liability for the charge from Airspan
to the employee. This liability transfer applies to all grants on or after
October 1, 1999. Eligible employees who tender eligible options in accordance
with the Offer to Exchange dated December 13, 2001 will be responsible for the
employer's NIC liability for all new options granted pursuant to the offer.
A series of Questions & Answers has been developed to answer questions and
concerns you may have regarding this change to the stock option program in the
U.K., which has been included in your offer packet.
Note: You must fully complete, sign and return a Joint Election Form for both
the Airspan Networks Inc. 1998 Plan and the 2001 Plan (the "Election Forms").
Both fully completed and signed Election Forms must accompany the signature page
of your Acceptance Letter for the Offer to Exchange NO LATER THAN 5:00 p.m.,
Uxbridge, UK time, January 18, 2002.
Instructions
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1. Read the documents carefully.
2. Type or print your full name and address where specified on both Election
Forms.
3. Type or print the number of shares for which you will be entitled to
acquire pursuant to the options and specify the option plan under which you were
granted the options where specified on the Election Forms.
4. The signature section of both Election Forms must be fully completed by:
. Printing your full name;
. Signing with an original signature; and
. Signing in the presence of a witness, whose name, address and
occupation information must be completed.
5. Send the fully completed and signed Election Forms by external mail,
courier or fax to:
Airspan Networks Inc., Attention: Xxxxxxx Xxxxxx, Director of Human Resources,
Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx XX0 0XX Xxxxxx Xxxxxxx,
FAX: x00 0000 000000
DELIVERY VIA EMAIL OR ANY FORM OF INTEROFFICE MAIL IS NOT ACCEPTABLE, but you
may personally hand deliver the Election Forms to Human Resources, provided that
they are date stamped and acknowledged as received by Human Resources.
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