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|__| Participant's Copy
|__| Aether's Copy
AETHER SYSTEMS, INC.
ACQUISITION INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT FOR
REPLACEMENT GRANTS FOR EMPLOYEES
Xxxxx Xxxx:
Aether Systems, Inc. ("Aether") has granted you (the "Grants")
under its Acquisition Incentive Plan (the "Plan") the number of shares of Aether
common stock (the "Shares") set forth on one or more Exhibits A to this
Agreement, subject to certain restrictions specified below in RESTRICTIONS.
(While subject to the restrictions, this Agreement refers to the Shares as
"Restricted Stock.").
This Grant replaces one or more option grants you had previously
received from Aether. You agree that you have no further claim to any portion of
such option grant cancelled in connection with this Grant of Restricted Stock.
The Grants are subject in all respects to the applicable provisions of
the Plan. This Agreement does not cover all of the rules that apply to the
Grants under the Plan, and the Plan defines any terms in this Agreement that the
Agreement does not define.
In addition to the terms and restrictions in the Plan, the following
terms and restrictions apply to each Grant:
RESTRICTIONS You may not sell, assign, pledge, encumber, or otherwise
AND transfer any interest in the Restricted Stock until the
FORFEITURE dates set forth in the Vesting Schedule in Exhibit A (at
which point the Restricted Stock will be referred to as
"Vested").
Unless the Administrator determines otherwise at any time
or Exhibit A provides otherwise, if your service with
Aether (and its subsidiaries) terminates for any reason
before all of your shares of Restricted Stock are Vested,
then you will forfeit your unVested shares to the extent
that they do not otherwise vest as a result of the
termination. The forfeited shares of Restricted Stock will
then immediately revert to Aether. You will receive no
payment for shares that you forfeit.
VESTING Assuming you remain an employee of (or director of)
SCHEDULE Aether, all restrictions under RESTRICTIONS AND FORFEITURE
will lapse on the Restricted Stock as set forth on Exhibit
A and they will become Vested, and you will be able,
subject to normal securities limitations, to sell the
Shares.
LIMITED STATUS You understand and agree that Aether will not consider you
a stockholder for any purpose with respect to the
Restricted Stock, unless and until they have been issued
to you, and they become Vested.
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VOTING You may not vote the Restricted Shares unless and until
they become Vested.
POSSESSION While unVested, the Restricted Stock will be held by an
agent or service provider designated by Aether. After
Vesting, Aether will direct the transfer of Shares to you
in book entry form (either directly or to a brokerage
firm).
ADDITIONAL Aether may postpone issuing and delivering any Shares for
CONDITIONS so long as Aether determines to be advisable to satisfy
TO RECEIPT the following:
its completing or amending any securities
registration or qualification of the Shares or its
or your satisfying any exemption from registration
under any Federal or state law, rule, or
regulation;
its receiving proof it considers satisfactory that
a person seeking to receive the Shares after your
death is entitled to do so;
your complying with any requests for
representations under the Plan; and
your complying with any federal, state, or local
tax withholding obligations.
TAX Unless you made an 83(b) election within 30 days of the
WITHHOLDING Date of Grant, you will be taxable on the Shares as they
become Vested and must arrange to pay the taxes on this
income.
ADDITIONAL If you receive Restricted Stock at a time when Aether does
REPRESENTATIONS not have a current registration statement (generally on
FROM YOU Form S-8) under the Securities Act of 1933 (the "Act")
that covers issuances of shares to you, you must comply
with the following before Aether will release the Shares
to you. You must --
represent to Aether, in a manner satisfactory to
Aether's counsel, that you are acquiring the
Shares for your own account and not with a view to
reselling or distributing the Shares; and
agree that you will not sell, transfer, or
otherwise dispose of the Shares unless:
a registration statement under the Act is
effective at the time of disposition with
respect to the Shares you propose to sell,
transfer, or otherwise dispose of; or
Aether has received an opinion of counsel or
other information and representations it
considers satisfactory to the effect that,
because of Rule 144 under the Act or
otherwise, no registration under the Act is
required.
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ADDITIONAL You will not receive the Shares if issuing the Shares
RESTRICTION would violate any applicable federal or state securities
laws or other laws or regulations.
NO EFFECT ON Nothing in this Agreement restricts Aether's rights or
EMPLOYMENT those of any of its affiliates to terminate your
OR OTHER employment or other relationship at any time, with or
RELATIONSHIP without cause. The termination of employment or other
relationship, whether by Aether or any of its affiliates
or otherwise, and regardless of the reason for such
termination, has the consequences provided for under the
Plan and any applicable employment or severance agreement
or plan.
NO EFFECT ON You understand and agree that the existence of an Option
RUNNING BUSINESS will not affect in any way the right or power of Aether or
its stockholders to make or authorize any adjustments,
recapitalizations, reorganizations, or other changes in
Aether's capital structure or its business, or any merger
or consolidation of Aether, or any issuance of bonds,
debentures, preferred or other stock, with preference
ahead of or convertible into, or otherwise affecting
Aether's common stock or the rights thereof, or the
dissolution or liquidation of Aether, or any sale or
transfer of all or any part of its assets or business, or
any other corporate act or proceeding, whether or not of a
similar character to those described above.
GOVERNING LAW The laws of the State of Delaware will govern all matters
relating to this Agreement, without regard to the
principles of conflict of laws.
NOTICES Any notice you give to Aether must follow the procedures
then in effect. If no other procedures apply, you must
send your notice in writing by hand or by mail to the
office of Aether's Secretary (or to the Chair of the
Administrator if you are then serving as Secretary). If
mailed, you should address it to Aether's Secretary (or
the Chair of the Administrator) at Aether's then corporate
headquarters, unless Aether directs participants to send
notices to another corporate department or to a third
party administrator or specifies another method of
transmitting notice. Aether and the Administrator will
address any notices to you at your office or home address
as reflected on Aether's personnel or other business
records. You and Aether may change the address for notice
by like notice to the other, and Aether can also change
the address for notice by general announcements to
participants.
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PLAN GOVERNS Wherever a conflict may arise between the terms of this
Agreement and the terms of the Plan, the terms of the Plan
will control.
AETHER SYSTEMS, INC.
ACKNOWLEDGMENT
I acknowledge I received a copy of the Plan and the prospectus
describing the Plan. I represent that I have read and am familiar with the
Plan's terms. By signing where indicated on Exhibit A, I accept each Grant
subject to all of the terms and provisions of this Agreement and of the Plan
under which the Grant is made, as the Plan may be amended in accordance with its
terms. I agree to accept as binding, conclusive, and final all decisions or
interpretations of the Administrator concerning any questions arising under the
Plan with respect to each Grant.
NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE SECURITIES COVERED BY THE
GRANT WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR A
SATISFACTORY OPINION OF COUNSEL SATISFACTORY TO AETHER OR OTHER INFORMATION AND
REPRESENTATIONS SATISFACTORY TO AETHER THAT SUCH REGISTRATION IS NOT REQUIRED.
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AETHER SYSTEMS, INC.
ACQUISITION INCENTIVE PLAN
RESTRICTED STOCK REPLACEMENT AGREEMENT FOR EMPLOYEES
EXHIBIT A
Recipient Information:
---------------------
Name: Xxxxx Xxxx
S.S.N.: - -
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Signature: X /s/ Xxxxx X. Xxxx
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Grant Information:
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Restricted Shares: 105,000
Date of Grant: 1-5-01
Vesting Schedule: This Grant is nonforfeitable ("Vested") as to
10% of the Shares of Restricted Stock on October 1, 2001,
30% of the Shares of Restricted Stock on October 1, 2002,
30% of the Shares of Restricted Stock on October 1, 2003,
30% of the Shares of Restricted Stock on October 1, 2004
(each a "Vesting Date"), assuming you remain employed
through those dates.
Grant Expiration Rules: You will forfeit any unVested portions this Grant
immediately when you cease to be employed. Ceasing
to be employed for this purposes includes death
and termination as a result of disability.
Special Tax Rule: You acknowledge that, unless you notify Aether to
the contrary, sufficient Shares will be sold to
cover any tax withholding obligations as of each
Vesting Date. You may select in advance (under
procedures Aether will provide) to sell more or
fewer Shares than withholding requires. If selling
the Shares is impractical or not permitted or you
elect not to have Shares sold, you agree to
provide whatever withholding payments are
required. You further acknowledge that the
withheld taxes may not satisfy all of your tax
obligations with respect to the Shares.
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