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EXHIBIT 99.2
NETSPEED, INC.
STOCK OPTION AGREEMENT
[Form of Non-Qualified Stock Option]
THIS AGREEMENT (this "Agreement"), effective as of _____________,
1997, is made and entered into by and between NetSpeed, Inc., a Texas Company
(the "Company"), and ____________ (the "Optionee").
WITNESSETH:
WHEREAS, the Company has implemented the NetSpeed, Inc. 1996 Stock
Option Plan (the "Plan"), which was adopted by the Company's Board of Directors
(the "Board") and approved by the Company's shareholders, and which provides for
the grant of stock options to certain selected officers, directors and key
employees of the Company or its subsidiaries with respect to shares of Common
Stock, $.01 par value, of the Company (the "Common Stock");
WHEREAS, the committee appointed by the Board to administer the Plan
(the "Committee") has selected the Optionee to participate in the Plan and has
awarded the non-qualified stock option described in this Agreement (the
"Option") to the Optionee;
WHEREAS, the stock options provided for under the Plan are intended
to comply with the requirements of Rule 16b-3 under the Securities Exchange Act
of 1934, as amended; and
WHEREAS, the parties hereto desire to evidence in writing the terms
and conditions of the Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, and as an inducement to the Optionee
to continue as an employee of the Company or its subsidiaries and to promote the
success of the business of the Company and its subsidiaries, the parties hereby
agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, upon
the terms and subject to the conditions, limitations and restrictions set forth
in the Plan and in this Agreement, the Option to acquire ________ shares of
Common Stock, at an exercise price per share of $_____, effective as of the date
of this Agreement (the "Date of Grant"). The Optionee hereby accepts the Option
from the Company.
2. Vesting. Except as otherwise provided for by the Plan, the shares
of Common Stock subject to the Option shall vest ratably in __________ equal
annual increments commencing on the first anniversary of the Date of Grant.
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3. Exercise. In order to exercise the Option with respect to any
vested portion, the Optionee shall provide written notice to the Company at its
principal executive office. At the time of exercise, the Optionee shall pay to
the Company the exercise price per share set forth in Section 1 times the number
of vested shares as to which the Option is being exercised. The Optionee shall
make such payment in cash, check or at the Company's option, by the delivery of
shares of Common Stock having a Fair Market Value (as defined in the Plan) on
the date immediately preceding the exercise date equal to the aggregate exercise
price. If the Option is exercised in full, the Optionee shall surrender this
Agreement to the Company for cancellation. If the Option is exercised in part,
the Optionee shall surrender this Agreement to the Company so that the Company
may make appropriate notation hereon or cancel this Agreement and issue a new
agreement representing the unexercised portion of the Option.
4. Who May Exercise. The Option shall be exercisable only by the
Optionee except in the case of death or Disability (as defined in the Plan). To
the extent exercisable after the Optionee's death or Disability, the Option
shall be exercised only by the Optionee's representatives, executors, successors
or beneficiaries.
5. Expiration of Option. The Option shall expire, and shall not be
exercisable with respect to any vested portion as to which the Option has not
been exercised, on the first to occur of: (a) the _________ anniversary of the
Date of Grant; (b) thirty days after the date of termination of the Optionee's
employment with the Company for any reason other than death or Disability; or
(c) one year after any termination of the Optionee's employment with the Company
if such termination is due to the death or Disability of the Optionee. The
Option shall expire, and shall not be exercisable, with respect to any unvested
portion, immediately upon the termination of the Optionee's employment with the
Company for any reason, including death or Disability. The right of the Optionee
to receive any benefits from the Company after termination of employment with
the Company by reason of employment contract, severance arrangement or otherwise
shall not affect the determination that the Optionee's employment has been
terminated with the Company for purposes of this Agreement.
6. Tax Withholding. Any provision of this Agreement to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign, to withhold in connection with any of the shares of Common Stock
subject hereto.
7. Transfer of Option. The Optionee shall not, directly or
indirectly, sell, transfer, pledge, encumber or hypothecate ("Transfer") any
unvested portion of the Option or the rights and privileges pertaining thereto.
In addition, the Optionee shall not, directly or indirectly, Transfer any vested
portion of the Option other than by will or the laws of descent and
distribution. Any permitted transferee to whom the Optionee shall Transfer the
Option shall agree to be bound by this Agreement. Neither the Option nor the
underlying shares of Common Stock is liable for or
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subject to, in whole or in part, the debts, contracts, liabilities or torts of
the Optionee, nor shall they be subject to garnishment, attachment, execution,
levy or other legal or equitable process.
8. Certain Legal Restrictions. The Company shall not be obligated to
sell or issue any shares of Common Stock upon the exercise of the Option or
otherwise unless the issuance and delivery of such shares shall comply with all
relevant provisions of law and other legal requirements including, without
limitation, any applicable federal or state securities laws and the requirements
of any stock exchange upon which shares of the Common Stock may then be listed.
As a condition to the exercise of the Option or the sale by the Company of any
additional shares of Common Stock to the Optionee, the Company may require the
Optionee to make such representations and warranties as may be necessary to
assure the availability of an exemption from the registration requirements of
applicable federal or state securities laws. The Company shall not be liable for
refusing to sell or issue any shares if the Company cannot obtain authority from
the appropriate regulatory bodies deemed by the Company to be necessary to
lawfully sell or issue such shares. In addition, the Company shall have no
obligation to the Optionee, express or implied, to list, register or otherwise
qualify any of the Optionee's shares of Common Stock. The shares of Common Stock
issued upon the exercise of the Option may not be transferred except in
accordance with applicable federal or state securities laws. At the Company's
option, the certificate evidencing shares of Common Stock issued to the Optionee
may be legended as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION
AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR PLEDGED EXCEPT IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND THE APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
Any Common Stock issued pursuant to the exercise of Options granted
pursuant to this Agreement to a person who would be deemed an officer or
director of the Company under Rule 16b-3 shall not be transferred until at least
six months have elapsed from the date of grant of such Option to the date of
disposition of the Common Stock underlying such Option.
9. Plan Incorporated. The Optionee accepts the Option subject to all
the provisions of the Plan, which are incorporated into this Agreement,
including the provisions that authorize the Committee to administer and
interpret the Plan and which provide that the Committee's decisions,
determinations and interpretations with respect to the Plan are final and
conclusive on all persons affected thereby. Except as otherwise set forth in
this Agreement, terms defined in the Plan have the same meanings herein.
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10. Miscellaneous.
(a) The Option is intended to be a non-qualified stock option
under applicable tax laws, and it is not to be characterized or treated as an
incentive stock option under such laws.
(b) The granting of the Option shall impose no obligation upon
the Optionee to exercise the Option or any part thereof. Nothing contained in
this Agreement shall affect the right of the Company to terminate the Optionee
at any time, with or without cause, or shall be deemed to create any rights to
employment on the part of the Optionee.
(c) The rights and obligations arising under this Agreement
are not intended to and do not affect the employment relationship that otherwise
exists between the Company and the Optionee, whether such employment
relationship is at will or defined by an employment contract. Moreover, this
Agreement is not intended to and does not amend any existing employment contract
between the Company and the Optionee.
(d) Neither the Optionee nor any person claiming under or
through the Optionee shall be or shall have any of the rights or privileges of a
shareholder of the Company in respect of any of the shares issuable upon the
exercise of the Option herein unless and until certificates representing such
shares shall have been issued and delivered to the Optionee or such Optionee's
agent.
(e) Any notice to be given to the Company under the terms of
this Agreement or any delivery of the Option to the Company shall be addressed
to the Company at its principal executive offices, and any notice to be given to
the Optionee shall be addressed to the Optionee at the address set forth beneath
his or her signature hereto, or at such other address for a party as such party
may hereafter designate in writing to the other. Any such notice shall be deemed
to have been duly given if mailed, postage prepaid, addressed as aforesaid.
(f) Subject to the limitations in this Agreement on the
transferability by the Optionee of the Option and any shares of Common Stock,
this Agreement shall be binding upon and inure to the benefit of the
representatives, executors, successors or beneficiaries of the parties hereto.
(g) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE UNITED
STATES, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(h) If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, in whole or in part, then the parties shall
be relieved of all obligations arising under such provision, but only to the
extent that it is illegal, unenforceable or void, it being the intent
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and agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
(i) All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no way
shall define, limit, extend or describe the scope or intent of any provisions of
this Agreement.
(j) The parties shall execute all documents, provide all
information, and take or refrain from taking all actions as may be necessary or
appropriate to achieve the purposes of this Agreement.
(k) This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
(l) No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
(m) This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
(n) At any time and from time to time the Committee may
execute an instrument providing for modification, extension, or renewal of any
outstanding option, provided that no such modification, extension or renewal
shall (i) impair the Option in any respect without the consent of the holder of
the Option or (ii) conflict with the provisions of Rule 16b-3. Except as
provided in the preceding sentence, no supplement modification or amendment of
this Agreement or waiver of any provision of this Agreement shall be binding
unless executed in writing by all parties to this Agreement. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision of this Agreement (regardless of whether similar), nor shall
any such waiver constitute a continuing waiver unless otherwise expressly
provided.
(o) In addition to all other rights or remedies available at
law or in equity, the Company shall be entitled to injunctive and other
equitable relief to prevent or enjoin any violation of the provisions of this
Agreement.
(p) The Optionee's spouse joins this Agreement for the purpose
of agreeing to and accepting the terms of this Agreement and to bind any
community property interest
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he or she has or may have in the Option, any vested portion or any unvested
portion of the Option, any shares of Common Stock acquired upon exercise of the
Option and any other shares of Common Stock held by the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMPANY:
NetSpeed, Inc.
By:
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Name:
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Title:
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OPTIONEE:
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Name:
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Address:
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OPTIONEE'S SPOUSE:
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Name:
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