Stock Option Agreement
AGREEMENT made as of the 7th day of December 1999 by and between
Net2Wireless, Inc., a Delaware corporation (the "Company") and Cedar Investment
Services Ltd. (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company desires to grant to the Optionee and the Optionee
desires to accept an option to purchase shares of common stock, par value $.01
per share, of the Company (the "Common Stock") upon the terms and conditions set
forth in this agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant. The Company hereby grants to the Optionee an option to
purchase 3.0 shares of Common Stock, at a purchase price per share of
$4,000,000.
2. Exercisability. This option shall be immediately vested in its
entirety, and shall remain exercisable for a period of five years, at which time
the unexercised portion of the option shall terminate.
3. Exercise. The option may be exercised in whole or in part by
delivering to the Secretary of the Company (a) a written notice specifying the
number of shares to be purchased, and (b) payment in full of the exercise price,
together with the amount, if any, deemed necessary by the Company to enable it
to satisfy any income tax withholding obligations with respect to the exercise
(unless other arrangements, acceptable to the Company, are made for the
satisfaction of such withholding obligations). The exercise price shall be
payable in cash or by bank or certified check.
4. Rights as Stockholder. No shares of Common Stock shall be sold or
delivered hereunder until full payment for such shares has been made. The
Optionee shall have no rights as a stockholder with respect to any shares
covered by the option until a stock certificate for such shares is issued to the
Optionee.
5. Nontransferability. This option is not assignable or transferable.
6. Adjustments Upon Changes in Capitalization. Subject to Section
7 below, the number and class of shares covered by this option and the exercise
price per share shall all be equitably adjusted to reflect any change in the
Common Stock by reason of a stock split, reverse stock split, stock dividend or
like capital adjustment or to reflect a conversion or exchange of the Common
Stock for other securities as a result of a merger, consolidation or
reorganization.
7. Merger; Consolidation. In the event of a merger,
consolidation, mandatory share exchange or other similar business combination of
the Company with or into any other entity ("Successor Entity") or any
transaction in which another person or entity acquires all or substantially all
the issued and outstanding Common Stock or all or substantially all the assets
of the Company, this option may be assumed or equivalent options may be
substituted by the Successor Entity or a parent or subsidiary of the Successor
Entity provided that, if this option is not assumed or replaced with
substantially equivalent options, then the Optionee shall be permitted to
exercise the option (whether or not otherwise exercisable) prior to such
transaction and any outstanding portions of the option which are not exercised
before such transaction shall thereupon terminate.
8. Securities Registration. Unless the shares to be issued upon
exercise of this option granted hereunder have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), the Company shall be
under no obligation to issue any shares covered by the option unless the party
that exercises such option, in whole or in part, shall give a written
representation and undertaking to the Company which is satisfactory in form and
scope to counsel for the Company and upon which, in the opinion of such counsel,
the Company may reasonably rely, that such party is acquiring the shares issued
pursuant to such exercise of the option for its own account as an investment and
not with a view to, or for sale in connection with, the distribution of any such
shares, and that such party will make no transfer of the same except in
compliance with any rules and regulations in force at the time of such transfer
under the Securities Act, or any other applicable law, and that if shares are
issued without such registration, a legend to this effect may be endorsed upon
the securities so issued. The option shall in no event be exercisable and
shares shall not be issued hereunder if, in the opinion of counsel to the
Company, such exercise and/or issuance would result in violation of federal or
state securities laws.
9. Other Limitations. At any time during which the Common Stock is not
publicly traded, any shares acquired pursuant to the exercise of the option
shall not be sold, encumbered, disposed of or otherwise transferred without
first offering (an "Offer") the Company (or its designee(s)) in writing a right
to purchase, for a minimum period of fifteen (15) days, such shares on the same
terms and conditions as have been offered by the proposed purchaser. The holder
of shares acquired pursuant to the option shall promptly, and in no event later
than thirty (30) days prior to the proposed consummation of a sale, encumbrance,
disposal or other transfer of shares, provide the Company with written notice
containing the name and address of the proposed purchaser or transferee of any
such rights, the amount and form of consideration to be paid for any such
transaction, and such additional information as the Board or a committee may
require in order to evaluate the proposed transaction and the Company's rights
hereunder. Any repurchase of shares pursuant to this Section 11 shall be made
at a closing ("Closing") to be held not less than five (5) and not more than
fifteen (15) days prior to the proposed consummation of a sale, encumbrance,
disposal or other transfer of the shares. The Company will determine the date,
place and time of the Closing and will notify the holder of such shares in
writing. The aggregate purchase price of the shares to be repurchased shall be
paid in full at the Closing unless the offer contains other payment terms more
favorable to the Company, in which event such other terms shall apply. If the
Company does not accept the Offer within fifteen (15) days of such offer then
the holder of such shares may, during the thirty (30) days following the
expiration of such initial fifteen (15) day period, dispose of such shares in
accordance with terms set forth in the Offer, to the purchaser named therein.
Unless the Board or a committee determines otherwise, any purchaser of shares
pursuant to this Section 13 shall acquire such shares free and clear of the
restrictions contained herein. If the holder of such shares does not dispose of
such shares within the additional thirty (30) day period, the restrictions
contained in this Section 9 shall again apply. The restriction in this Section
9 shall be reflected in the stock legend for any share to which this Section 9
applies. This Section 9 will not apply to any shares acquired pursuant to the
exercise of the option to the extent such shares are covered by the transfer
restrictions of a shareholders' agreement with the Company and one or more of
its other shareholders.
10. Miscellaneous.
10.1. This agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
10.2. This agreement shall be governed by and construed in accordance
with the laws of the State of Delaware. This agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
controls and supersedes any prior understandings, agreements or representations
by or between the parties, written or oral between the parties with respect to
its subject matter and may not be modified except by written instrument executed
by the parties.
IN WITNESS WHEREOF, this stock option agreement has been executed as of the date
first above written.
NET2WIRELESS, INC.
By: /s/
Name:
Title:
CEDAR INVESTMENT SERVICES LTD.
By: /s/
Name:
Title:
