1
EXHIBIT 10.18
NONQUALIFIED STOCK OPTION AGREEMENT
GRANTED TO: Xxxx Xxxxxxx
DATE OF GRANT: April 1, 1999
GRANTED PURSUANT TO: Nucentrix Broadband Networks, Inc.
1999 Share Incentive Plan
NUMBER OF UNDERLYING 50,000 shares
SHARES OF COMMON
STOCK:
EXERCISE PRICE: $12.50 per share
VESTING SCHEDULE: See Section 4 below
1. This Nonqualified Stock Option Agreement (the "Agreement") is made
and entered into as of April 1, 1999, between Nucentrix Broadband Networks,
Inc., a Delaware corporation (the "Company"), and Xxxx Xxxxxxx ("Employee"). It
is the intent of the Company and Employee that the Option (as defined in
Paragraph 2 below) will not qualify as an "incentive stock option" under Section
422 of the Internal Revenue Code of 1986, as amended from time to time (the
"Code").
2. Employee is granted an option by the Compensation Committee of the
Company's Board of Directors (the "Committee") to purchase 50,000 shares of
Common Stock (the "Option") pursuant to the Company's 1999 Share Incentive Plan
(the "Plan"). Capitalized terms not defined herein shall have the meanings
ascribed thereto in the Plan. The Option granted hereunder is a matter of
separate inducement and is not in lieu of salary or other compensation for
Employee's services.
3. The Option's exercise price is $12.50 per share, such exercise price
being in the judgment of the Committee not less than one hundred percent (100%)
of the Fair Market Value of a share of Common Stock on the date of grant.
4. Subject to Paragraphs 5, 6 and 7 below, the Option shall become
fully exercisable in accordance with the following vesting schedule:
(a) 10% will automatically vest on each anniversary of the date of
grant for five years after the date of grant; and
(b) up to 50% will vest as follows (such portion hereinafter
referred to as the "Contingent Portion"):
(i) if the average closing sales price of the Common Stock
equals or exceeds $16.50 per share for any 20 consecutive trading
days between the date of grant and the
2
first anniversary of the date of grant, one-fifth of the Contingent
Portion will vest on such 20th trading day;
(ii) if the average closing sales price of the Common Stock
equals or exceeds $20.80 per share for any 20 consecutive trading
days between the date of grant and the second anniversary of the
date of grant, two-fifths of the Contingent Portion will vest on
such 20th trading day;
(iii) if the average closing sales price of the Common Stock
equals or exceeds $25.00 per share for any 20 consecutive trading
days between the date of grant and the third anniversary of the date
of grant, three-fifths of the Contingent Portion will vest on such
20th trading day;
(iv) if the average closing sales price of the Common Stock
equals or exceeds $28.61 per share for any 20 consecutive trading
days between the date of grant and the fourth anniversary of the
date of grant, four-fifths of the Contingent Portion will vest on
such 20th trading day; and
(v) if the average closing sales price of the Common Stock
equals or exceeds $31.10 per share for any 20 consecutive trading
days between the date of grant and the fifth anniversary of the date
of grant, all of the Contingent Portion will vest on such 20th
trading day.
As used in this Agreement, "average closing sales price" shall mean:
(i) if the Company's Common Stock is publicly traded, the average of the
closing prices as reported by the OTC Bulletin Board, The Nasdaq Stock
Market or other applicable regional or national securities exchange or
quotation system on which the Common Stock is so traded or quoted for any
applicable period; or (ii) if there is no public trading market for such
shares, the fair value of such shares on the applicable date of
determination as determined by the Committee after taking into
consideration all factors which it deems appropriate, including without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arms' length.
2
3
Notwithstanding anything herein to the contrary, if the Employee is
employed by the Company on the date which is 30 days immediately prior
to the Expiration Date (such date referred to herein as the "Final
Vesting Date"), the unvested portion, if any, of the Option will
immediately vest and become exercisable on such date.
5. Subject to Paragraphs 6 and 7 below, the unexercised portion of the
Option, unless sooner terminated, shall expire seven years after the date of
grant (the "Expiration Date") and, notwithstanding anything contained herein to
the contrary, no portion of the Option may be exercised after the Expiration
Date.
6. If prior to the Expiration Date, Employee's employment with the
Company or any subsidiary corporation terminates, the Option will terminate on
the applicable date as described below, provided, however, that none of the
events described below shall extend the period of exercisability beyond the
Expiration Date:
(a) If the employment of Employee is terminated by reason of Employee's
death while in the employ of the Company or any subsidiary corporation, the
Option shall immediately become fully exercisable and remain exercisable for
twelve (12) months after Employee's death and shall be exercisable by the
executor or administrator of the estate of the deceased Employee or the person
or persons to whom the deceased Employee's rights under the Option shall pass by
will or the laws of descent or distribution;
(b) If the employment of Employee is terminated by the Company or any
subsidiary corporation for reason of Employee's "Permanent Disability" (as
defined below), the Option shall immediately become fully exercisable on the
date of such termination and shall remain exercisable for six (6) months after
such date; provided, however, that if Employee dies during the six month period
following such date and Employee has not exercised the Option, the Option shall
remain exercisable for an additional twelve (12) months after Employee's death
and shall be exercisable by the executor or administrator of the estate of the
deceased Employee or the person or persons to whom the deceased Employee's
rights under the Option shall pass by will or the laws of descent or
distribution;
(c) If the employment of Employee is terminated by the Company or any
subsidiary corporation for "cause" (as defined below), the Option shall, to the
extent not theretofore exercised, immediately become null and void on the date
of such termination;
(d) If the employment of Employee is terminated by the Company or any
subsidiary corporation other than (X) for "cause" or (Y) for reason of
Employee's death or "Permanent Disability", the Option, to the extent vested and
not theretofore exercised, shall immediately become fully exercisable on the
date of such termination and shall remain exercisable for thirty (30) days after
such date and the unvested portion of the Option shall be canceled;
3
4
(e) If the employment of Employee is terminated by the Employee prior
to the Final Vesting Date, the unvested portion of the Option shall immediately
become null and void on the date of such termination and the vested portion of
the Option shall, to the extent not theretofore exercised, remain exercisable
for thirty (30) days after the date of such termination; or
(f) If the employment of Employee is terminated by the Employee on or
after the Final Vesting Date, the Option shall, to the extent not theretofore
exercised, remain exercisable for thirty (30) days after the date of such
termination.
For purposes of this Agreement, the terms "Permanent Disability" and
"cause" shall have the meanings ascribed to such terms in the Employee's
employment agreement with the Company, as amended from time to time (the
"Employment Agreement"), or any successor agreement, or if Employee does not
have an employment agreement with the Company, such terms shall have the
meanings ascribed to them on Annex A attached hereto.
7. Upon the occurrence of a "Change in Control" (as defined in the
Plan), the Option shall immediately become fully exercisable and shall terminate
thirty (30) days after the occurrence of the Change in Control. Upon such
termination, Employee shall receive, with respect to the unexercised portion of
the Option, an amount in cash, in one or more kinds of property (including the
property, if any, payable in the transaction) or in a combination thereof, as
the Committee, in its discretion, shall determine, equal to the product of (X)
the amount, if any, by which the Fair Market Value of a share of Common Stock
immediately prior to the occurrence of such Change in Control exceeds the
exercise price per share specified in Paragraph 3 hereof and (Y) the number of
shares with respect to which the Option remained exercisable on the date of such
termination; provided, however, that the apportionment and kind of property, if
any, to be received by the Employee shall not differ in any material respect
from the property to be received by the holders of Common Stock.
8. Employee may exercise the Option regardless of whether any other
option that Employee has been granted by the Company remains unexercised. In no
event may Employee exercise the Option for a fraction of a share or for less
than 100 shares unless such number is the remaining balance for which the Option
is then exercisable.
9. The Option's exercise price shall be paid by Employee on the date
the Option is exercised, in full in cash or, in the sole discretion of the
Committee, in shares of Common Stock or any other method that the Committee
shall prescribe, including, without limitation, by the withholding of shares or
the delivery of an executed promissory note to the Company on such terms and
conditions as the Committee shall determine in its sole discretion.
10. The Company or any subsidiary corporation may withhold from sums
due or to become due to Employee from the Company or any subsidiary corporation
an amount necessary to satisfy its obligation to withhold taxes incurred by
4
5
reason of the issuance or disposition of shares pursuant to the Option, or may
require Employee to reimburse the Company or any subsidiary corporation in such
amount. The exercise of the Option shall not be effective until the withholding
tax liability associated with the exercise of the Option has been satisfied.
11. Employee shall not have any of the rights of a stockholder with
respect to the shares of Common Stock underlying the Option while the Option is
unexercised.
12. Any exercise of this Option shall be in writing addressed to the
Corporate Secretary of the Company at the principal place of business of the
Company, specifying the Option being exercised and the number of shares to be
purchased, accompanied by payment therefor.
13. This Option shall not be transferable otherwise than by will or the
laws of descent and distribution, and shall be exercisable, during Employee's
lifetime, only by Employee. Notwithstanding the foregoing, but subject to the
approval of the form of the transfer by the Committee which approval shall not
be unreasonably withheld, this Option may be transferred by Employee solely to
Employee's spouse, siblings, parents, children and grandchildren or trusts for
the benefit of such persons, subject to any restriction included in this
Agreement.
14. If the Company, in its sole discretion, shall determine that it is
necessary, to comply with applicable securities laws, the certificate or
certificates representing the shares purchased pursuant to the exercise of the
Option shall bear an appropriate legend in form and substance, as determined by
the Company, giving notice of applicable restrictions on transfer under or in
respect of such laws.
15. The Company agrees that at the time of exercise of the Option it
will use reasonable efforts in good faith to have an effective Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the "Act"),
which includes a prospectus that is current with respect to the shares subject
to the Option. Employee covenants and agrees with the Company that if, at the
time of exercise of the Option, there does not exist a Registration Statement on
an appropriate form under the Act, which Registration Statement shall have
become effective and shall include a prospectus that is current with respect to
the shares subject to the Option, (i) that he or she is purchasing the shares
for his or her own account and not with a view to the resale or distribution
thereof, (ii) that any subsequent offer for sale or sale of any such shares
shall be made either pursuant to (x) a Registration Statement on an appropriate
form under the Act, which Registration Statement shall have become effective and
shall be current with respect to the shares being offered and sold, or (y) a
specific exemption from the registration requirements of the Act and applicable
state securities laws, but in claiming such exemption, Employee shall, prior to
any offer for sale or sale of such shares, obtain a favorable written opinion
from counsel for or approved by the Company as to the applicability of such
exemption and (iii) that Employee agrees that the certificates evidencing such
shares shall bear a legend to the effect of the foregoing.
5
6
16. This Agreement is subject to all terms, conditions, limitations and
restrictions contained in the Plan, which shall be controlling in the event of
any conflicting or inconsistent provisions.
17. This Agreement is not a contract of employment and the terms of
Employee's employment shall not be affected hereby or by any agreement referred
to herein except to the extent specifically so provided herein or therein.
Nothing herein shall be construed to impose any obligation on the Company or any
subsidiary corporation to continue Employee's employment, and it shall not
impose any obligation on Employee's part to remain in the employ of the Company
or any subsidiary corporation.
18. Employee acknowledges and agrees that neither the Company, its
stockholders nor its directors and officers, has any duty or obligation to
disclose to the Employee any material information regarding the business of the
Company or any subsidiary corporation or affecting the value of the Common Stock
before or at the time of a termination of the employment of Employee by the
Company or any subsidiary corporation, including, without limitation, any
information concerning plans for the Company or any subsidiary corporation to
make a public offering of its securities or to be acquired by or merged with or
into another firm or entity.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
NUCENTRIX BROADBAND NETWORKS, INC.
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------------------
Xxxxxxx X. XxXxxxx
President and Chief Executive Officer
ACCEPTED:
/s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------
Printed Name: Xxxxxxxxx X. Xxxxxxx
--------------------
6
