Exhibit (d)(2)
AIRSPAN NETWORKS INC.
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Non-Qualified Stock Option Agreement for Employees
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Employee/Optionee: [Name]
Number of shares of [Shares]
Common Stock subject
to this Agreement:
Pursuant to the 1998 Airspan Networks Inc. Stock Option and Restricted
Stock Plan (the "Plan"), a Committee (the "Committee") of the board of directors
of Airspan Networks Inc. (the "Company") has granted to you on this date an
option (the "Option") to purchase the number of shares of the Company's Common
Stock, $.0003 par value ("Common Stock"), set forth above. Such shares (as the
same may be adjusted as described in Section 10 below) are herein referred to as
the "Option Shares." The Option shall constitute and be treated at all times by
you and the Company as a "non-qualified stock option" for Federal income tax
purposes and shall not constitute and shall not be treated as an "incentive
stock option" as defined under Section 422(b) of the Internal Revenue Code of
1986, as amended (the "Code"). The terms and conditions of the Option are set
out below.
1. Date of Grant. The Option is granted to you as of July 19, 2002.
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2. Termination of Option. Except as provided below, your right to
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exercise the Option (and to purchase the Option Shares) shall expire and
terminate in all events on the earliest of (i) ten (10) years from [insert the
date of grant of the eligible options that are exchanged for new options
pursuant to the offer to exchange] (the "Deemed Grant Date"), or (ii) the date
provided in Section 8 below in the event you cease to be employed by the Company
or any subsidiary or affiliate thereof. Provided, however, that notwithstanding
clauses (i) and (ii) and anything else to the contrary in this Agreement, if you
are employed by the Company or any subsidiary or affiliate of the Company
immediately before a Change in Control (as defined below), and if the Company or
any successor, assign, or purchaser thereof does not either (A) continue your
Option (as adjusted, if necessary, to retain its pre-Change in Control economic
value and aggregate "spread" between the Option Shares' fair market value and
exercise price) or (B) grant you a new Option of at least equivalent economic
value, aggregate "spread," and other terms and conditions as your pre-Change in
Control Option, then you will automatically vest in an additional 50% of any
remaining unvested Options that you may hold, and, notwithstanding anything
herein to the contrary, you may exercise all such vested Options (together with
any other previously or subsequently vested Options) until the later of (i) the
date specified in Section 8 below or (ii) one (1) year from such Change in
Control, but in no event longer than ten (10) years from the Deemed Grant Date.
3. Option Price. The purchase price to be paid upon the exercise of the
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Option is $[price] ([price in words]) per share (subject to adjustment as
provided in Section 10 hereof), which is equal to the fair market value of a
share of Common Stock on the date of grant.
4. Vesting. (a) Unless otherwise accelerated upon a Change in Control as
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provided for in Section 2 above, upon the one (1) year anniversary of [grant
date] the Option shall become exercisable to purchase, or vest with respect to,
twenty-five percent (25%) of the total number of Option Shares, and, after the
first such anniversary date, shall vest each month for the next thirty-six (36)
months with respect to an additional 1/48 of the total number of Option Shares
(rounded to the nearest whole share), such that 1one hundred percent (100%) of
the Option Shares will vest in four (4) years.
(b) For purposes hereof, a "Change in Control" shall be deemed to have
occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied:
(1) Any Person becomes the beneficial owner of shares having fifty
percent (50%) or more of the total number of votes that may be cast for the
election of directors of the Company; or
(2) As a result of, or in connection with, any tender or exchange
offer, merger or other business combination, sale of assets or contested
election, or any combination of the foregoing (a "Transaction"), the
persons who were directors of the Company before the Transaction shall
cease to constitute a majority of the board of directors of the Company or
any successor to the Company or its assets; or
(3) If at any time (i) the Company shall consolidate or merger with
any other Person and the Company shall not be the continuing or surviving
corporation, (ii) any Person shall consolidate or merge with the Company
and the Company shall be the continuing or surviving corporation and in
connection therewith, all or part of the outstanding stock shall be changed
into or exchanged for stock or other securities of any other Person or cash
or any other property, (iii) the Company shall be a party to a statutory
share exchange with any other Person after which the Company is a
subsidiary of any other Person, or (iv) the Company shall sell or otherwise
transfer fifty percent (50%) or more of the assets or earnings power of the
Company and its subsidiaries (taken as a whole) to any Person or Persons.
The term "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and
used in Sections 13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d) thereof.
(c) If a Change in Control occurs and the Company fails to remain in
existence, the Option shall become an obligation of the person succeeding to the
business of the Company or otherwise responsible for the Company's obligations.
(d) Nothing in this Agreement pertaining to a Change in Control shall
limit or restrict the rights otherwise provided to you in this Agreement or the
exercisability of the Option.
5. Additional Provisions Relating to Exercise. Once you become entitled
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to exercise the Option (and purchase Option Shares) as provided in Section 4
hereof, such right will continue until the date on which the Option expires and
terminates pursuant to Section 2 hereof.
6. Exercise of Option. To exercise the Option, you must use one of the
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methods specified by the Company at the date of exercise. Payment of the full
option price for the Option Shares being purchased and the applicable income,
social security, including, without limitation, both primary (employee's) and
secondary
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(employer's) Class 1 National Insurance Contributions ("NIC") for employees
based in the U.K., and any other tax obligation arising on the exercise of the
Options to the extent permitted by law (the "Tax Indemnity") is required upon
exercise. Unless otherwise agreed to by the Committee, payment of the option
price and payment in respect of the Tax Indemnity must be made by cashier's
check or by a cashless exercise transaction; provided, however, that with the
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prior approval of the Committee, payment of such option price and/or Tax
Indemnity may instead be made, in whole or in part, by the delivery to the
Company of a promissory note in a form and amount satisfactory to the Committee,
provided that the principal amount of such note shall not exceed the excess of
such aggregate option price and Tax Indemnity obligation over the aggregate par
value of the purchased Option Shares. Notwithstanding anything to the contrary
in this Agreement, no shares of stock purchased upon exercise of the Option, and
no certificate representing such shares, shall be issued or delivered if (a)
such shares have not been admitted to listing upon official notice of issuance
on each stock exchange, if any, upon which shares of that class are then listed,
or (b) in the opinion of counsel to the Company, such issuance or delivery would
(i) cause the Company to be in violation of or to incur liability under any
Federal, state or other securities law, or any other requirement of law or any
requirement of any stock exchange regulations or listing agreement to which the
Company is a party, or of any administrative or regulatory body having
jurisdiction over the Company or (ii) require registration (apart from any
registrations as have been theretofore completed by the Company covering such
shares) under any Federal, state, or other securities or similar law.
7. Transferability of Option. The Option may not be transferred by you
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(other than by will or the laws of descent and distribution or a domestic
relations order) and may be exercised during your lifetime only by you or by an
alternate payee under a domestic relations order.
8. Termination of Employment. (a) In the event that (i) the Company or any
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subsidiary, affiliate, or parent thereof terminates your employment, or (ii) you
terminate your employment for any reason whatsoever (other than as a result of
your death or total and permanent disability (as determined by the Company or
its designated representative), then the Option may only be exercised within
ninety (90) days after the date you cease to be so employed, and only to the
same extent that you were entitled to exercise the Option on the date you ceased
to be so employed by reason of such termination and had not previously done so.
(b) In the event that you cease to be employed on a full-time basis by
the Company or any subsidiary, affiliate, or parent thereof by reason of total
and permanent disability (as determined by the Company or its designated
representative), then the Option may only be exercised within one (1) year after
the date you cease to be so employed, and only to the same extent that you were
entitled to exercise the Option on the date you ceased to be so employed by
reason of such disability and had not previously done so.
(c) In the event that you die while employed by the Company or any
subsidiary, affiliate, or parent thereof (or die within a period of one (1) year
after ceasing to be employed by the Company or any subsidiary, affiliate, or
parent thereof by reason of disability (as described in Section 8(b) hereof) or
within ninety (90) days of ceasing to be so employed for any other reason), the
Option may only be exercised within one (1) year after your death. In such
event, the Option may be exercised during such one-year period by the executor
or administrator of your estate or by any person who shall have acquired the
Option through bequest or inheritance, but only to the same extent that you were
entitled to exercise the Option immediately prior to the time of your death and
you had not previously done so.
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(d) Notwithstanding any provision contained in this Section 8 to the
contrary, (i) the time limits provided for in this Section 8 shall be subject to
extension in the event of a Change in Control, to the extent provided for in
Section 2 hereof, and (ii) in no event may the Option be exercised to any extent
by anyone after the tenth (10th) anniversary of the Deemed Grant Date of the
Option.
9. Representations. You represent and warrant that you understand the
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taxation consequences of the granting of the Option to you, the acquisition of
rights to exercise the Option with respect to any Option Shares, the exercise,
release or other disposal of the Option and purchase of Option Shares, and the
subsequent sale or other disposition of any Option Shares. In addition, you
understand that the Company will be required to pay, or account for taxation in
respect of any compensation income, or other income or gain realized by you upon
exercise of the Option granted hereunder. To the extent that the Company is
required to pay, account for or withhold any such taxes, then, unless both you
and the Committee have otherwise agreed upon alternate arrangements, you hereby
agree that the Company may deduct from any payments of any kind otherwise due to
you an amount equal to the total taxation required to be so paid, accounted for
or withheld (as permitted by law), or if such payments are inadequate to satisfy
such taxation, or if no such payments are due or to become due to you, then you
agree to provide the Company with cash funds or make other arrangements
satisfactory to the Company regarding such payment. For employees based in the
U.K., the offer of the Options contained in this Agreement is conditional upon
your agreeing at the request of the Company to enter into an election with the
Company and/or with any connected person of the Company as is required to
procure the transfer to you of any (employer's) Class 1 NIC liability as would
otherwise fall on the Company in connection with the grant, exercise, release or
other disposal of your Options. Any failure on your part, as a UK-based
employee, to enter into any such election within seven (7) days of the date of
receipt from the Company of a notice requiring the same, will result in the
cancellation of the Options granted to you under the terms of this Agreement and
pending entry by you into such election, you agree that no exercise, or further
exercise, of the Options will be permitted. It is understood that all matters
with respect to the total amount of taxation to be withheld in respect of any
such compensation income shall be determined by the Company in its sole
discretion.
10. Adjustments. In the event that, after the date hereof, the outstanding
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shares of the Company's Common Stock shall be increased or decreased or changed
into or exchanged for a different number or kind of shares of stock or other
securities of the Company or of another corporation through reorganization,
merger or consolidation, recapitalization, reclassification, stock split,
split-up, combination or exchange of shares or declaration of any dividends
payable in Common Stock, the board of directors shall appropriately adjust the
number of shares of Common Stock (and the option price per share) subject to the
unexercised portion of the Option (to the nearest possible full share), and such
adjustment shall be effective and binding for all purposes of this Agreement and
the Plan.
11. Continuation of Employment. Neither the Plan nor the Option shall
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confer upon you any right to continue in the employ of (or any other
relationship with) the Company or any subsidiary, affiliate, or parent thereof,
or limit in any respect the right of the Company or any subsidiary, affiliate,
or parent thereof to terminate your employment or other relationship with the
Company or any subsidiary, affiliate, or parent thereof, as the case may be, at
any time. This Agreement shall supersede any other agreement between the Company
(or one of its affiliates or subsidiaries) and you with respect to any
obligation of the Company (or such affiliate or subsidiary) to grant any Option
or distribute or sell any Common Stock to you. Any such obligation shall be
null, void and of no effect.
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12. Stockholder Rights. No person or entity shall be entitled to vote,
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receive dividends, or be deemed for any purpose the holder of any Option Shares
until the Option shall have been duly exercised to purchase such Option Shares
in accordance with the provisions of this Agreement.
13. Plan Documents. This Agreement is qualified in its entirety by
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reference to the provisions of the Plan, as amended from time to time, which are
hereby incorporated herein by reference. Capitalized terms not defined herein
shall have the meaning ascribed to them in the Plan. However, notwithstanding
the above, no Plan amendment may deprive you of any Options theretofore granted
under the Plan without your consent, and no Plan amendment requiring shareholder
approval (if any) may be made without such shareholder approval.
The interpretation and construction by the Committee of the Plan, this
Agreement, the Options granted hereunder, and such rules and regulations as may
be adopted by the Committee for the purpose of administering the Plan, shall be
final and binding upon you. Until the Options shall expire, terminate, or be
exercised in full, the Company shall, upon written request therefor, send a copy
of the Plan, in its then-current form, to you or any other person or entity then
entitled to exercise the Options.
14. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Washington, but without regard to the
principle of conflict of laws thereof. If any one or more provisions of this
Agreement shall be found to be illegal or unenforceable in any respect, the
validity and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
15. Restrictions on Transfer. You acknowledge that in connection with
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any public offering of the Common Stock, the underwriters for the Company may
require that the Company's officers, directors, and/or certain other
shareholders not sell their shares of Common Stock for a certain period of time
before or after the effectiveness of the registration statement filed in
connection with such offering. You hereby agree that upon the Company's request
in connection with any such public offering, that you will not, directly or
indirectly, offer, sell, contract to sell, make subject to any purchase option,
or otherwise dispose of any shares of Common Stock for a period requested by the
underwriter or its representative, not to exceed 10 days before and 180 days
after the date of the effectiveness of the registration statement, without the
prior written consent of the underwriter or its representative.
16. Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the parties hereto and their respective beneficiaries,
heirs, executors, administrators, legal representatives, guardians, successors,
assigns, transferees, purchasers, alternate payees under a domestic relations
order, or any other holder of the Option or the Option Shares.
17. Notices. All notices and other communications required or permitted
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hereunder shall be in writing and deemed to have been received on the date of
delivery if delivered by hand or overnight express, or three days after the date
of posting if mailed by registered or certified mail, postage prepaid, addressed
to the Company, at Cambridge House, Oxford Road, Uxbridge, Xxxxxxxxx XX0 0XX,
Xxxxxxx, and to you at your address as set forth herein (or such other address
to which the Company or you hereby notify the other party hereto to send such
notices and communications). Such notices and other communications shall not be
considered delivered until actually received or deemed received pursuant to this
Section 17.
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18. Protection of Confidential Information.
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(a) Definitions. In this Agreement:
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(1) Client means any individual, proprietorship,
partnership, corporation, association, or entity
served by the Company, its subsidiaries, or
affiliates (collectively, the "Company") at any
time during the term of your employment with the
Company.
(2) Confidential Information means:
(A) Information disclosed to or known to you as a
direct or indirect consequence of, or through
your employment with the Company, about any
Client's or the Company's business, methods,
operations, products, processes, and services,
including, but not limited to, information
relating to research, developments,
inventions, recommendations, programs,
systems, and systems analyses, flow charts,
scheduling procedures, finances and financial
statements, marketing, merchandising,
merchandise sources, Client sources, system
designs, procedure manuals, professional fee
lists, automated data programs, financing
methods, financial projections, computer
software, terms and conditions of business
arrangements with Clients, reports, personnel
procedures, supply and service resources,
names, addresses and phone numbers of
personnel providing, whether employees of the
Company or independent contractors, services
to Clients, the Company's contacts, including,
without limitation, contacts with its Clients,
and all other information pertaining to the
Company treated as confidential by the Company
including all accompanying documentation
therefor.
(B) All information disclosed to you, or to which
you have had access during the period of your
employment (including information which you
assisted in developing), for which there is
any reasonable basis to believe is, or which
appears to be treated by the Company as,
Confidential Information shall be presumed to
be Confidential Information hereunder.
(b) Confidential Information.
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(1) Proprietary Information. You are aware and
acknowledge that the Company has developed a
special competence in providing, developing, and/or
marketing certain products and/or services and has
accumulated Confidential Information not generally
known to others in the field which is of unique
value in the conduct and growth of the Company's
business and which the Company treats as
proprietary. You acknowledge that in the course of
carrying out, performing, and fulfilling your
responsibilities to the Company, you will be given
access to and be entrusted with Confidential
Information relating to the Company's business and
Clients. You recognize that (i) the services that
the
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Company performs and/or products that the Company
provides for its Clients are confidential and that to
enable the Company to perform those services and/or
provide those products, its Clients may also furnish
to the Company Confidential Information concerning
their affairs, (ii) the goodwill of the Company
depends upon, among other things, its keeping the
Confidential Information confidential and that
unauthorized disclosure of the Confidential
Information would irreparably damage the Company, and
(iii) disclosure of any Confidential Information to
competitors of the Company or to the general public
would be highly detrimental to the Company.
(2) Developments. You agree to notify the Company of any
discovery, invention, innovation, or improvement
which is directly related to the business of the
Company or to the business of any Client
(collectively called "Developments") conceived or
developed by you during the term of your employment.
Developments shall include, without limitations,
developments in computer software, and other
intellectual properties relating to design,
implementation, marketing, and sale of the products
and/or services sold by the Company. All
Developments, including, but not limited to, all
written documents pertaining thereto, shall be the
exclusive property of the Company and shall be
considered Confidential Information subject to the
terms of this Agreement. You agree that when
appropriate, and upon written request of the Company,
you will file for patents or copyrights with regard
to any or all Developments and will sign
documentation necessary to evidence ownership of
Developments in the Company.
(3) Covenants. In consideration of your employment by the
Company, and in consideration of the Option granted
to you hereunder, you hereby agree as follows:
(A) Nondisclosure of Confidential Information. You
will not, during your employment with the
Company or at any time after termination
thereof, irrespective of the time, manner, or
cause of termination, use, disclose, copy, or
assist any other person or firm in the use,
disclosure, or copying of, any Confidential
Information.
(B) Return of Confidential Information. Upon
termination of your employment, you agree to
deliver to the Company all Confidential
Information and all copies thereof along with
any and all other property belonging to the
Company or any Client whatsoever.
(C) Develop Competitive Materials. You will not
develop any materials which are similar to or
competitive with the Confidential Information
of the Company.
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(c) Injunction. You agree that a breach or threatened breach on your
part of any covenant contained in Section 18 of this Agreement will cause
such damage to the Company as will be irreparable and for that reason you
further agree that the Company shall be entitled as a matter of right to an
injunction out of any court of competent jurisdiction, restraining any
further violation of such covenants by you, your employer, employees,
partners, or agents, or by any entity by which you, directly or indirectly,
own any interest (other than ownership of publicly held corporations of
which you own less than one percent (1%) of any outstanding securities).
The right to injunction shall be cumulative and in addition to any and all
other remedies the Company may have, including, specifically, recovery of
damages.
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Please acknowledge receipt of this Agreement by signing the enclosed copy
of this Agreement in the space provided below and returning it promptly to the
Secretary of the Company.
AIRSPAN NETWORKS INC.
By: _____________________
Xxxx Xxxxxxxxxx
Its: President and Chief Executive
Officer
Accepted and Agreed To
As of_______________, _____:
_____________________________
Employee/Optionee
Address:______________________
______________________________
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Airspan Networks Inc.
1998 Stock Option and Restricted Stock Plan
OPTION EXERCISE FORM
Under the Airspan Networks Inc. Stock Option and Restricted Stock Plan
(the "Plan"), I hereby exercise the right to purchase ___________ shares of
Common Stock, $.0003 par value, of Airspan Networks Inc. pursuant to the Option
granted to me on July 19, 2002 under the Plan. Enclosed herewith is
$_______________, an amount equal to the total exercise price for the shares of
Common Stock being purchased pursuant to this Option Exercise Form and the
applicable income tax withholding payment in respect of the Tax Indemnity
obligation with respect to this exercise.
Date:__________________________ ____________________________
Print name:
Send a completed copy of this Option Exercise Form to:
Airspan Networks Inc.
_______________________________
Attn:__________________
