NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit
10.1
THIS
NON-QUALIFIED STOCK OPTION
AGREEMENT is made as of January 28, 2008 between PROXIM WIRELESS CORPORATION,
a
corporation organized under the laws of the State of Delaware (hereinafter
called the “Corporation”), and
Xxxxxx X. Xxxxxxx (hereinafter referred to as the “Employee”).
WHEREAS,
the Employee is in the employ
of the Corporation or one of its affiliates and the Corporation considers it
desirable and in its best interests to encourage the Employee as an eligible
employee under its 2004 Stock Plan (the “Plan”) to remain
in
such employ and to motivate the Employee to exert the Employee’s best efforts on
behalf of the Corporation and its affiliates;
NOW,
THEREFORE, it is agreed as
follows:
1.
Grant of
Option. The Corporation hereby grants to the Employee as of
the date of this Agreement (“Date of Grant”) the
right, privilege and option to purchase not more than Two Hundred Fifty Thousand
(250,000) shares (the “Grant Number”) of the
Common Stock of the Corporation, par value $.01 per share, as constituted on
the
date of this Agreement pursuant to the terms, provisions and conditions of
the
Plan which is incorporated herein and made a part hereof by reference as if
fully set forth herein at length and subject to the terms, provisions and
conditions set forth below.
2.
Option
Price. The option price per share of Common Stock as
constituted on the date of this Agreement, as determined in accordance with
the
Plan, shall be $0.82 per
share.
3.
Time of Exercise;
Acceleration. This option will vest as to forty percent (40%)
of the Grant Number on the Date of Grant and as to an additional twenty percent
(20%) of the Grant Number on each of the first three annual anniversaries of
the
Date of Grant (the day on which any options are scheduled to vest under this
Agreement is referred to in this Agreement as a “Vesting Date”);
provided, however, that upon the termination of the Employee’s employment
pursuant to Section 7.2 or 7.6 of the Employment Agreement, dated as of January
16, 2008 (the “Employment
Agreement”), between the Corporation and the Employee, all unvested
options will be immediately vested (subject to the Employee performing his
obligations under Section 7.11(b) of the Employment
Agreement). Notwithstanding the foregoing sentence, (a) the number of
options that will vest on each Vesting Date, if other than a whole number,
will
be rounded down to the nearest whole number and (b) any fractional options
resulting from the preceding clause will vest on the ninth Vesting Date.
Only
vested stock options may be exercised. This option may be exercised
in whole or in part as to shares which have vested for not in excess of the
difference between (i) the total number of shares then vested and
(ii) the total number of shares as to which the option has been previously
exercised. No partial exercise of this option within any year may be
for less than 100 shares (or the remaining shares purchasable under this option
if less than 100 shares).
4.
Method of
Exercise. This option shall be exercisable from time to time
as provided above by written notice in the form of Exhibit “A”, signed by the
person entitled to exercise the option, setting forth in terms of shares of
Stock as constituted on the date of this Agreement, the number of shares as
to
which this option is being exercised. Such notice shall be delivered
to the Corporation at its principal place of business or as otherwise directed
by the Corporation and be accompanied by the purchase
price. Alternatively, the person entitled to exercise the option may
exercise the option and pay the purchase price by any other method that may
be
authorized by the Corporation from time to time. The Corporation
shall make prompt delivery of the shares of Stock as to which the option is
exercised against payment of the purchase price; provided, however, that if
any
law or regulation requires the Corporation to take any action with respect
to
the Stock before the issuance thereof, then the date of delivery of the Stock
shall be extended for the period necessary to take such action.
5.
Further Limitations
on
Exercise.
A.
Termination of
Employment.
(i)
If Employee’s employment with or service to the Corporation terminates pursuant
to Section 7.2 or 7.6 of the Employment Agreement, (a) all unvested options
will
be immediately vested as provided in Section 3 above, and (b) this option will
terminate on the date twelve months after the date of termination or on the
option’s specified expiration date, if earlier (provided that the Employee has
performed his obligations under Section 7.11(b) of the Employment
Agreement). Nothing in this Agreement will be deemed to give the
Employee the right to continued employment with the Corporation.
(ii)
If Employee’s employment or other service to the Corporation is terminated due
to the Employee’s death or Total Disability (as that term is defined in the
Employment Agreement), this option may be exercised, up to that portion of
the
option which the Employee could have exercised on the date of death or Total
Disability, by the Employee, or in the case of death, the Employee’s estate,
personal representative or any beneficiary who has acquired the option by will
or by the laws of descent and distribution, at any time prior to the earlier
of
the specified expiration date of this option or one year after the Employee’s
death or Total Disability.
(iii)
If Employee’s employment with or service to the Corporation terminates or is
terminated in any manner or for any reason such that the provisions of neither
Section 5(A)(i) nor Section 5(A)(ii) apply, (a) no further vesting of this
option will occur subsequent to the date of termination, and (b) this option
will terminate on the date three months after the date of termination or on
the
option’s specified expiration date, if earlier. Nothing in this
Agreement will be deemed to give the Employee the right to continued employment
with the Corporation.
B.
Condition to
Exercise. As a condition of the Corporation's obligation to
issue Stock upon exercise of this option, the Employee or other person entitled
to exercise this option, if requested by the Corporation, shall concurrently
with the exercise of this option execute an Agreement Not to Compete with the
Corporation (in such form as adopted by the
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Corporation
from time to time), which obligates the Employee to refrain from certain
activities (if the person exercising the option has not already executed such
an
agreement).
C.
Payment. The
option price shall be paid as follows: (i) by check, and/or
(ii) to the extent the Stock is publicly traded, by delivery to the
Corporation by the Employee of Stock already owned by such Employee, properly
endorsed and having a fair market value equal to the purchase price (if
permitted by the Corporation) and/or (iii) in any other manner permitted by
the
Corporation from time to time. For purposes of this Section 5(C), the
market value of such stock to be delivered to the Corporation in payment of
the
option price shall be determined in accordance with the Plan.
D.
Non-Transferability. This
option is not transferable by the Employee, except by will or by laws of descent
and distribution, and is exercisable during the Employee's lifetime only by
the
Employee.
E.
Adjustment. If
a dividend is declared upon the Stock payable in Stock, then the shares of
Stock
then subject to this option (and the number of shares reserved for issuance)
shall be increased proportionately without any change in the aggregate purchase
price. If the outstanding Stock is changed into or exchanged for a
different number or class of shares of stock of the Corporation or of another
corporation, whether through reorganization, recapitalization, stock split-up,
combination of shares, merger or consolidation, then (i) there shall be
substituted for each such share of Stock then subject to this option (and for
each share reserved for issuance) the number and class of shares of Stock into
which each outstanding share of Stock is so changed or exchanged, all without
any change in the aggregate purchase price for the shares then subject to this
option and (ii) the vesting schedule set forth in Section 3 above shall also
be
adjusted proportionately to reflect the impact of such reorganization,
recapitalization, stock split-up, combination of shares, merger or
consolidation.
F.
Withholding
Taxes. Whenever under this Agreement Stock is to be issued,
the Corporation shall have the right to require the recipient to remit to the
Corporation an amount sufficient to satisfy federal, state and local withholding
tax requirements prior to delivery of any certificate or certificates
representing the Stock.
6.
Stock
Ownership. An optionee shall be entitled to the privilege of
stock ownership only as to such shares of Stock as are issued upon exercise
of
this option.
7.
Requirements of
Law. The granting of this option and issuance of shares of
Stock upon the exercise of this option, and the Corporation’s obligations
relating thereto, shall be subject to compliance with all of the applicable
requirements of law with respect to the granting of this option and issuance
and
sale of such shares (including, without limitation, having an effective
registration statement relating to such shares in force with the Securities
and
Exchange Commission). The Corporation shall not be required to take
any action pursuant to this Agreement that would violate any applicable federal,
state, local, or foreign law or require the Corporation to qualify to do
business in, obtain any certifications or approvals from, or make any filings
with any state, local, or foreign jurisdiction.
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8.
Expiration
Date. This option and all rights granted in this Agreement
shall, in all events, expire five (5) years from the Date of Grant.
9.
Legend. The
Employee hereby agrees that the stock certificates delivered upon exercise
of
this option may bear a legend or legends in the form designated by the
Corporation to ensure compliance with legal or contractual restrictions.
10.
Definitions. Unless
otherwise defined in this Agreement, the terms used in this Agreement shall
have
the same meanings as in the Plan. The term “Stock” shall mean
shares of Common Stock of the Corporation as constituted on the date of this
Agreement and such other stock as shall be substituted therefor or issued
thereon as provided in Section 5(E) above or as shall be substituted for or
issued upon or in exchange for Stock issued pursuant to the options.
11.
Notices. All
notices under this Agreement shall be sufficient if in writing and delivered
in
hand or mailed, registered or certified mail, postage prepaid, and addressed
to
the Corporation at PROXIM WIRELESS CORPORATION, 0000 X’Xxx Xxxxx, Xxx Xxxx,
XX 00000 Attn: Chief Financial Officer or to the Employee
at the most recent address of the Employee set forth in the personnel records
of
the Corporation. Either party may change the address to which notices
shall be delivered by like notice given at least ten (10) days before the
effective date of such change of address.
12.
Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns, and the Employee, his
legal representatives, heirs, legatees and assigns.
13.
Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
IN
WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed as of the date and year first above
written.
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PROXIM
WIRELESS CORPORATION
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Employee
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By:
/s/ Xxxxx
X.
Xxxxxxx
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/s/
Xxxxxx X.
Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Title: Vice
President
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EXHIBIT
A
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(date)
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PROXIM
WIRELESS CORPORATION
0000
X’Xxx Xxxxx
Xxx
Xxxx,
XX 00000
Ladies
and Gentlemen:
I
wish to exercise my option to
purchase ____________ shares of common stock, par value $.01 per share (the
“Securities”)
at a price of $0.82 per share pursuant to the Non-Qualified Stock Option
Agreement dated as of January 28, 2008 (the “Agreement”) under the
Corporation’s 2004 Stock Plan.
Check
one of the following boxes:
[
] I enclose
herewith my check for $_____________________ (the exercise amount).
[
] I am paying
the exercise price by the following means which has been approved by the
Corporation:
I
understand that prior to exercising
any options I must have signed an Agreement Not to Compete with the Corporation
(if requested by the Corporation) in the form adopted by the Corporation from
time to time.
I
further agree that I will not make
any sales or other transfers or dispositions of the securities covered by this
letter during the time period following the closing of any public offering
by
the Corporation of its securities requested by the underwriter or, in the
absence of such request, ninety (90) days.
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Very
truly yours,
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Employee
Social Security Number
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Employee
Signature (on line above)
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Employee
Name (printed):
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Employee’s
Home Address:
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Address
to which certificates are to be sent
(complete
ONLY if different than home address):
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