Exhibit 10.2
CONCURRENT COMPUTER CORPORATION
XXXXXXX X. XXXXXXXXXX
NON-QUALIFIED STOCK OPTION PLAN AND AGREEMENT
THIS NON-QUALIFIED STOCK OPTION PLAN AND AGREEMENT evidences that, subject to
the following terms and conditions, on August 21, 2001 (the "Grant Date"),
Concurrent Computer Corporation, a Delaware Corporation, (the "Company") granted
to Xxxxxxx X. Xxxxxxxxxx (the "Optionee") a non-qualified stock option (the
"Option") for the purchase of ten thousand (10,000) shares of the Company's
common stock, $.01 par value (the "Stock"), at an option price of eleven dollars
and five cents ($11.05) per share (the "Option Price"), for service provided as
a director of the Company.
SECTION 1. Definitions. For purposes of this Plan and Agreement, the following
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terms are defined as set forth below:
a. "Board" means the Board of Directors of the Company.
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b. "Change of Control" shall have the meaning set forth in Section 5
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below.
c. "Committee" means the Committee referred to in Section 3 below.
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d. "Exchange Act" means the Securities Exchange Act of 1934, as
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amended from time to time, and any successor thereto.
e. "Fair Market Value" means the closing sale price as of any given
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date of a share of Stock if the Stock is listed on a national
securities exchange or quoted on the Nasdaq system or, if no such
closing price is available on such date, such closing price as
reported for the immediately preceding business day. If the Stock
is not listed on a national securities exchange or quoted on the
Nasdaq system, the Fair Market Value of the Stock shall be
determined by the Committee in good faith.
f. "Rule 16b-3" means the exemption under Rule 16b-3 to Section
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16(b) of the Exchange Act, as amended from time to time.
In addition, certain other terms used herein have definitions given to them in
the first place in which they are used. For purposes of the definitions set
forth in this Section 1, the singular shall include the plural and the plural
shall include the singular.
SECTION 2. Stock Option. The Option shall be subject to the following terms
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and conditions:
(a) Exercisability and Term. The Option shall be immediately
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exercisable and shall be exercisable during the period that the Optionee remains
a member of the Board and for a period of three (3) years following termination
of service on the Board.
(b) Method of Exercise. Subject to the provisions of this Section 2,
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the Option may be exercised (to the extent then exercisable), in whole or in
part, at any time during the Option term by giving written notice of exercise to
the Company specifying the number of shares of Stock subject to the Option to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price by certified or bank check or such other instrument as the Company may
accept. Payment in full or in part also may be made in the form of unrestricted
common stock of the Company already owned by the Optionee; provided that if the
Option is exercised using unrestricted common stock of the Company already owned
by the Optionee, such stock must have been held by the Optionee for at least six
(6) months.
In the discretion of the Committee, payment for any Stock subject to
the Option also may be made by delivering a properly executed exercise notice to
the Company together with a copy of irrevocable instructions to a broker to
deliver promptly to the Company the purchase price. To facilitate the foregoing,
the Company may enter into agreements for coordinated procedures with one or
more brokerage firms. The value of already owned shares of common stock of the
Company exchanged in full or partial payment for the shares purchased upon the
exercise of the Option shall be equal to the aggregate Fair Market Value of such
already owned shares of stock on the date preceding the exercise of the Option
(and transfer of such already owned shares to the account of the Company).
(c) Non-transferability of Option. The Option shall not be
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transferable by the Optionee other than by will or by the laws of descent and
distribution, and the Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee or by the guardian or legal representative of the
Optionee, it being understood that the term "Optionee" include the guardian and
legal representative of the Optionee and any person to whom the Option is
transferred by will or the laws of descent and distribution.
(d) Cashing out of Option. On receipt of written notice of exercise,
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the Committee may elect to cash out all or part of the Option to be exercised by
paying the Optionee an amount, in cash or Stock, equal to the excess of the Fair
Market Value of a share of Stock over the Option price times the number of
shares of Stock subject to the Option on the effective date of such cash out.
SECTION 3. Administration.
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This Plan and Agreement shall be administered by the Compensation
Committee ("Committee") of the Board or such other committee of the Board,
composed of not less than two (2) members, each of whom shall be appointed by
and shall serve at the
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pleasure of the Board and shall come within the definition of a "non-employee
director" under Rule 16b-3 and an "outside director" under Section 162(m) of the
Internal Revenue Code of 1986, as amended from time to time, and any successor
thereto. If at any time no Committee shall be in place, the functions of the
Committee specified in this Plan and Agreement shall be exercised by the Board.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing this Plan and Agreement
as it shall, from to time, deem advisable; to interpret the terms and provisions
of this Plan and Agreement; and to otherwise supervise the administration of
this Plan and Agreement.
The Committee may act only by a majority of its members then in
office, except that the members thereof may authorize any one or more of their
number or any officer of the Company to execute and deliver documents on behalf
of the Committee. Any determination made by the Committee pursuant to the
provisions of this Plan and Agreement with respect to the Option shall be made
in its sole discretion at the time of the grant of the Option or, unless in
contravention of any express term of this Plan and Agreement, at any time
thereafter. All decisions made by the Committee pursuant to the provisions of
this Plan and Agreement shall be final and binding on all persons, including the
Company and the Optionee.
SECTION 4. Adjustments.
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In the event of any merger, reorganization, consolidation,
recapitalization (including, but not limited to, the issuance of common stock or
any securities convertible into common stock in exchange for securities of the
Company), stock dividend, stock split or reverse stock split, extraordinary
distribution with respect to the Stock or other similar change in corporate
structure affecting the Stock, such substitution or adjustments shall be made in
the number and Option price of shares subject to the Option granted under this
Plan and Agreement as may be determined to be appropriate by the Committee, in
its sole discretion; provided, however, that the number of shares subject to the
Option always shall be a whole number.
SECTION 5. Change of Control.
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Upon the occurrence of a Change of Control, the Committee, in its
discretion, shall have the right (but not the obligation) to cash out prior to
the transaction the Option by paying the Optionee an amount, in cash or common
stock, equal to the excess of the Fair Market Value of a share of Stock over the
Option price per share of Stock times the number of shares of Stock subject to
the Option on the effective date of the cash out (in which event the Option
shall thereupon expire).
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For purposes of this Plan, "Change of Control" means the occurrence of
any of the following events:
(a) the acquisition, directly or indirectly, by any "person" or
"group" (as those terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the
Exchange Act and the rules thereunder, including, without limitation, Rule
13d-5(b)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under
the Exchange Act) of securities entitled to vote generally in the election of
directors ("voting securities") of the Company that represent 35% or more of the
combined voting power of the Company's then outstanding voting securities, other
than
(i) an acquisition by a trustee or other fiduciary holding securities
under any employee benefit plan (or related trust) sponsored or
maintained by the Company or any person controlled by the Company
or by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any person controlled by the
Company, or
(ii) an acquisition of voting securities by the Company or a
corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of the stock of the Company, or
(iii) an acquisition of voting securities pursuant to a transaction
described in clause (c) below that would not be a Change of
Control under clause (c);
(b) a change in the composition of the Board that causes less than a
majority of the directors of the Company to be directors that meet one or more
of the following descriptions:
(i) a director who has been a director of the Company for a
continuous period of at least 24 months, or
(ii) a director whose election or nomination as director was approved
by a vote of at least two-thirds of the then directors described
in clauses (b)(i), (ii), or (iii) by prior nomination or
election, but excluding, for the purpose of this subclause (ii),
any director whose initial assumption of office occurred as a
result of an actual or threatened (y) election contest with
respect to the election or removal of directors or other actual
or threatened solicitation of proxies or consents by or on behalf
of a person or group other than the Board or (z) tender offer,
merger, sale of substantially all of the Company's assets,
consolidation, reorganization, or business combination that would
be a Change of Control under clause (c) on consummation thereof,
or
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(iii) who were serving on the Board as a result of the consummation of
a transaction described in clause (c) that would not be a Change
of Control under clause (c);
(c) the consummation by the Company (whether directly involving the
Company or indirectly involving the Company through one or more intermediaries)
of (x) a merger, consolidation, reorganization, or business combination or (y) a
sale or other disposition of all or substantially all of the Company's assets or
(z) the acquisition of assets or stock of another entity, in each case, other
than in a transaction
(i) that results in the Company's voting securities outstanding
immediately before the transaction continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the Company or the person that, as a result
of the transaction, controls, directly or indirectly, the Company
or owns, directly or indirectly, all or substantially all of the
Company's assets or otherwise succeeds to the business of the
Company (the Company or such person, the "Successor Entity"))
directly or indirectly, at least 50% of the combined voting power
of the Successor Entity's outstanding voting securities
immediately after the transaction, and
(ii) after which more than 50% of the members of the board of
directors of the Successor Entity were members of the Board at
the time of the Board's approval of the agreement providing for
the transaction or other action of the Board approving the
transaction (or whose election or nomination was approved by a
vote of at least two-thirds of the members who were members of
the Board at that time), and
(iii) after which no person or group beneficially owns voting
securities representing 35% or more of the combined voting power
of the Successor Entity, unless the Board determines in its
discretion that beneficial ownership by a person or group of
voting securities representing 35% or more of the combined voting
power of the Successor Entity shall not be deemed a Change of
Control; or
(d) a liquidation or dissolution of the Company.
For purposes of clarification, an acquisition of Company securities by
the Company that causes the Company's voting securities beneficially owned by a
person or group to represent 35% or more of the combined voting power of the
Company's then outstanding voting securities is not to be treated as an
"acquisition" by any person or group for purposes of clause (a) above. For
purposes of clause (a) above, the Company makes the calculation of voting power
as if the date of the acquisition were a record date for a vote of the Company's
shareholders, and for purposes of clause (c) above, the Company makes the
calculation of voting power as if the date of the consummation of the
transaction were a record date for a vote of the Company's shareholders.
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SECTION 6. Amendment.
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The Board may amend this Plan and Agreement, but no amendment shall be
made that would (i) impair the rights of the Optionee without the Optionee's
consent, except such an amendment made to cause this Plan and Agreement to
qualify for the exemption provided by Rule 16b-3, or (ii) disqualify this Plan
and Agreement from the exemption provided by Rule 16b-3. In addition, no such
amendment shall be made without the approval of the Company's stockholders to
the extent such approval is required by law.
SECTION 7. General Provisions.
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(a) Compliance with Laws. The Option shall not be exercised and no
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related share certificates shall be delivered if in the sole discretion of the
Company any requisite approval, consent, registration or other qualification of
any stock exchange upon which the securities of the Company may then be listed,
the Securities and Exchange Commission or other governmental authority having
jurisdiction over the exercise of the Option or the issuance of shares shall not
have been secured.
(b) Beneficiary. The Committee shall establish such procedures as it
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deems appropriate for the Optionee to designate a beneficiary to whom any
amounts payable in the event of the Optionee's death are to be paid.
(c) Severability. If any provisions of this Plan and Agreement shall
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be held invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions of this Plan and Agreement or the subject agreement.
(d) Governing Law. This Plan and Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware.
(e) Merger Clause. This Plan and Agreement supersedes any and all
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understandings between the Company and the Optionee with respect to the Option,
and, except as otherwise provided herein, this Plan and Agreement may be amended
only in writing signed by the Company and the Optionee.
(f) Headings. The headings in this Plan and Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of thereof.
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PLEASE INDICATE YOUR UNDERSTANDING AND ACCEPTANCE OF THE FOREGOING BY SIGNING
AND RETURNING A COPY OF THIS PLAN AND AGREEMENT.
CONCURRENT COMPUTER ORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President & CFO
I hereby acknowledge receipt of the Option granted on August 21, 2001, which has
been granted to me under the foregoing terms and conditions. I further agree to
conform to all of the terms and conditions of the Option.
OPTIONEE
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
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