EXHIBIT 4.2
REVISED FORM FOR ISO UNDER 1994
EMPLOYEE STOCK OPTION PLAN
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NONTRANSFERABLE INCENTIVE STOCK
OPTION AGREEMENT dated as of _________,
19__, between HEARTLAND WIRELESS
COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and
____________________________ (the
"Optionee", which term as used herein
shall be deemed to include any successor
to the Optionee by will or by the laws of
descent and distribution, unless the
context shall otherwise require).
Pursuant to the Company's 1994 Employee Stock Option Plan (the
"Plan"), the Company, acting through the Compensation Committee of its Board
of Directors (the "Committee"), approved the issuance to the Optionee,
effective as of the date set forth above, of an incentive stock option to
purchase up to an aggregate of [# OF SHARES] shares of Common Stock, $.001
par value, of the Company (the "Common Stock"), at the price (the "Option
Price") of [not less than 100% of the fair market value of a share of Common
Stock on the date of grant (110%, in the case of a 10% stockholder)] [PRICE]
per share, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as follows:
1. Option; Option Price. On behalf of the Company, the Committee
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hereby grants to the Optionee the option (the "Option") to purchase, subject
to the terms and conditions of this Agreement and the Plan (which are
incorporated by reference herein and which in all cases shall control in the
event of any conflict with the terms, definitions and provisions of this
Agreement), [# OF SHARES] shares (the "Option Shares") of Common Stock of
the Company at an exercise price per share equal to the Option Price, which
Option is intended to qualify for Federal income tax purposes as an
"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). A copy of the Plan as in
effect on the date hereof has been supplied to the Optionee, and the
Optionee hereby acknowledges receipt thereof.
2. Term. The term (the "Option Term") of the Option shall
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commence on the date of this Agreement (the "Grant Date") and shall expire
on the seventh anniversary of the Grant Date, unless such Option shall
theretofore have been terminated in accordance with the terms hereof or of
the Plan.
3. Time of Exercise. (a) Unless accelerated in the discretion of
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the Committee or as otherwise provided herein, the Option shall become
exercisable as to the total number of Option Shares multiplied by the
fraction specified in Exhibit A hereto, for the periods specified in Exhibit
A hereto; provided, however, that the Option shall in no event be exercisable
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during the 180-day period (the "Offering Period") immediately following the
effective date of the Registration Statement on Form S-1 filed by the Company
under the Securities Act of 1933, as amended (the "Securities Act"), for an
initial public offering of the Common Stock; provided further, however, that
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the Option shall be exercisable during the 180-day period after the
expiration of the Offering Period if the Option Term expires during the
Offering Period. Subject to the provisions of Sections 5 and 8 hereof, shares
as to which the Option becomes exercisable pursuant to the foregoing
provisions may be purchased at any time thereafter prior to the expiration or
termination of the Option.
(b) Anything contained in this Agreement to the contrary
notwithstanding, the Option shall not be exercisable to the extent that the
aggregate Fair Market Value (as determined in accordance with Section 6.b. of
the Plan) on the date hereof of all stock with respect to which incentive
stock options are exercisable for the first time by the Optionee during any
calendar year (under the Plan and all other plans of the Company and its
subsidiaries, if any) exceeds $100,000.
(c) Anything contained herein to the contrary notwithstanding, the
Option shall become fully exercisable (to the extent it has not already done so)
as to the total number of shares of Common Stock subject to the Option upon the
Optionee's death or permanent and total disability (within the meaning of
Section 22(e)(3) of the Code).
(d) Anything contained herein to the contrary notwithstanding, in the
event of a Change in Control (as hereinafter defined), the Option shall become
fully exercisable (to the extent it has not already done so) as to the total
number of shares of Common Stock subject to the Option if, within one year of
such Change in Control, the Optionee shall cease for any reason to be an
employee of the Company or any of its subsidiaries. For purposes of this
Agreement, a Change in Control of the Company shall be deemed to have occurred
if (i) there shall be consummated (x) any consolidation or merger of the Company
in which the Company is not the continuing or surviving corporation or pursuant
to which shares of the Common Stock would be converted into cash, securities or
other property, other than a merger of the Company in which the holders of the
Common Stock immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately after the
merger, or (y) any sale, lease, exchange or other transfer (in one transaction
or a series of related
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transactions) of all, or substantially all, of the assets of the Company; or
(ii) the stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or (iii) any person (as such term
is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"))(other than ▇▇▇▇ Capital Group, L.L.C.,
▇▇▇▇▇ ▇. ▇▇▇▇ or ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇), shall become the beneficial owner (within
the meaning of Rule 13d-3 under the Exchange Act) of 30% or more of the
Company's outstanding Common Stock; or (iv) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the entire Board of Directors shall cease for any reason to constitute a
majority thereof unless the election, or the nomination for election by the
Company's stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period. Anything contained herein to the contrary
notwithstanding, any exercise of the Option permitted pursuant to this
Section 3(d) may be made within 180 days of the Optionee's termination.
4. Termination of Option. (a) Except as set forth in Section 3(d), the
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unexercised portion of the Option shall automatically terminate and shall become
null and void and be of no further force or effect upon the first to occur of
the following:
(i) the expiration of the Option Term;
(ii) the expiration of three months from the date that the Optionee
ceases to be an employee of the Company or any of its subsidiaries (other
than as a result of an Involuntary Termination (as defined in subparagraph
(iii) below) or a Termination For Cause (as defined in subparagraph (iv)
below)); provided, however, that if the Optionee shall die during such
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three-month period, the time of termination of the unexercised portion of
the Option shall be determined in accordance with subparagraph (iii) below;
(iii) the expiration of 12 months from the date that the Optionee
ceases to be an employee of the Company or any of its subsidiaries as a
result of the Optionee's death or permanent and total disability (within the
meaning of Section 22(e)(3) of the Code) (an "Involuntary Termination");
(iv) immediately if the Optionee ceases to be an employee of the
Company or any of its subsidiaries if such-termination is for cause or is
otherwise attributable to a breach by the Optionee of an employee,
noncompetition or other similar agreement with the Company or any such
subsidiary (any such termination, determined in accordance with paragraph
(b) below, a "Termination For Cause");
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(v) the effective date of a Corporate Transaction (as defined in
Section 9.b. of the Plan) to which Section 9.b.(ii) of the Plan (relating to
assumptions and substitutions of Options) does not apply; provided, however,
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that the Optionee's right to exercise the Option prior to such effective
date shall in all events be suspended during the period commencing 10 days
prior to the proposed effective date of such Corporate Transaction and
ending on either the actual effective date of such Corporate Transaction or
upon receipt of notice from the Company that such Corporate Transaction will
not in fact occur; and
(vi) except to the extent permitted by Section 9.b.(ii) of the
Plan, the date on which the Option or any part thereof or right or privilege
relating thereto is transferred (otherwise than by will or the laws of
descent and distribution), assigned, pledged, hypothecated, attached or
otherwise disposed of by the Optionee.
(b) The Board of Directors of the Company shall have the power to
determine what constitutes a Termination For Cause, and the date upon which such
Termination For Cause occurs. Any such determination shall be final, conclusive
and binding upon the Optionee.
(c) Anything contained herein to the contrary notwithstanding, the
Option shall not be affected by any change of duties or position of the Optionee
(including a transfer to or from the Company or one of its subsidiaries), so
long as the Optionee continues to be an officer or employee of the Company or
one of its subsidiaries.
5. Procedure for Exercise. (a) The Option may be exercised, from time to
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time, in whole or in part (but for the purchase of whole shares only), by
delivery of a written notice (the "Notice") from the Optionee to the Secretary
of the Company, which Notice shall:
(i) state that the Optionee elects to exercise the Option;
(ii) state the number of Option Shares with respect to which the
Option is being exercised (the "Optioned Shares");
(iii) state the method of payment for the Optioned Shares pursuant
to Section 5(b);
(iv) state the date upon which the Optionee desires to consummate
the purchase of the Optioned Shares (which date must be prior to the
termination of
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such Option and no later than 30 days from the delivery of such Notice);
(v) include any representations of the Optionee required under
Section 8(b); and
(vi) if the Option shall be exercised pursuant to Section 10 by any
person other than the Optionee, include evidence to the satisfaction of the
Committee of the right of such person to exercise the Option.
(b) Payment of the Option Price for the Optioned Shares shall be made
(i) in cash or by personal or certified check, (ii) by delivery of stock
certificates (in negotiable form) representing shares of Common Stock that have
been owned of record by the Optionee for at least six months prior to the date
of exercise and that have a Fair Market Value on the date of exercise
(determined in the manner set forth in Section 6.b. of the Plan) equal to the
aggregate Option Price of the Optioned Shares or (iii) a combination of the
methods set forth in the foregoing clauses (i) and (ii).
(c) The Company shall issue a stock certificate in the name of the
Optionee (or such other person exercising the Option in accordance with the
provisions of Section 10) for the Optioned Shares as soon as practicable after
receipt of the Notice and payment of the aggregate Option Price for such shares.
6. No Rights as a Stockholder. The Optionee shall not have any
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privileges of a stockholder of the Company with respect to any Optioned Shares
until the date of issuance of a stock certificate pursuant to Section 5(c).
7. Adjustments. (a) Subject to Section 7(b), if, at any time while the
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Option is outstanding, the Common Stock is changed by reason of a stock
split, reverse stock split, stock dividend or recapitalization, or converted
into or exchanged for other securities as a result of a merger, consolidation
or reorganization, the Committee shall make adjustments in the number and
class of shares of stock subject to the Option, and the Option Price of the
Option, subject to the provisions of Sections 9.a. and 9.c. of the Plan (or
any similar or successor provisions of the Plan which may be hereafter
adopted).
(b) In the event of the dissolution or liquidation of the
Company, or reorganization, merger or consolidation in which the Company is
not the surviving corporation, or a sale of all or substantially all of the
assets of the Company to another person or entity, the provisions of
Sections 9.b. and 9.c. of the Plan (or any similar or successor provisions
of the Plan which may be hereafter adopted) shall apply.
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8. Additional Provisions Related to Exercise. (a) The Option shall be
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exercisable only on such date or dates and during such period and for such
number of shares of Common Stock as are set forth in this Agreement.
(b) To exercise the Option, the Optionee shall follow the procedures
set forth in Section 5 hereof. Upon the exercise of the Option at a time when
there is not in effect a registration statement under the Securities Act
relating to the shares of Common Stock issuable upon exercise of the Option, the
Committee in its discretion may, as a condition to the exercise of the Option,
require the Optionee (i) to represent in writing that the shares of Common Stock
received upon exercise of the Option are being acquired for investment and not
with a view to distribution and (ii) to make such other representations and
warranties as are deemed appropriate by counsel to the Company. No shares of
Common Stock shall be issued and delivered upon the exercise of the Option
unless and until the Company and/or the Optionee shall have complied with all
applicable Federal or state registration, listing and/or qualification
requirements and all other requirements of law or of any regulatory agencies
having jurisdiction.
(c) Stock certificates representing shares of Common Stock acquired
upon the exercise of the Option that have not been registered under the
Securities Act shall, if required by the Committee, bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE
SECURITIES ACT OF 1933 OR AN OPINION OF COUNSEL TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT."
9. No Evidence of Employment or Service. Nothing contained in the Plan
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or this Agreement shall confer upon the Optionee any right to continue in the
employ of the Company or any of its subsidiaries or interfere in any way with
the right of the Company or its subsidiaries (subject to the terms of any
separate agreement to the contrary) to terminate the Optionee's employment or to
increase or decrease the Optionee's compensation at any time.
10. Restriction on Transfer. The Option may not be transferred, pledged,
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assigned, hypothecated or otherwise disposed of in any way by the Optionee,
except by will or by the laws of descent and distribution, and may be exercised
during the
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lifetime of the Optionee only by the Optionee. If the Optionee dies, the
Option shall thereafter be exercisable, during the period specified in Section
4(a)(iii), by his executors or administrators to the full extent to which the
Option was exercisable by the Optionee at the time of his death. The Option
shall not be subject to execution, attachment or similar process. Any
attempted assignment, transfer, pledge, hypothecation or other disposition of
the Option contrary to the provisions hereof, and the levy of any execution,
attachment or similar process upon the Option, shall be null and void and
without effect.
11. Disqualifying Dispositions. If Optioned Shares are disposed of
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within two years following the date of this Agreement or one year following the
issuance thereof to the Optionee (a "Disqualifying Disposition"), the Optionee
shall, immediately prior to such Disqualifying Disposition, notify the Company
in writing of the date and terms of such Disqualifying Disposition and provide
such other information regarding the Disqualifying Disposition as the Company
may reasonably require.
12. Notices. All notices or other communications which are required or
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permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally-recognized overnight courier or (iii) sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Optionee, to the address set forth on the
signature page hereto; and
if to the Company, to:
Heartland Wireless Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary;
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, (ii) on the first Business Day (as hereinafter defined)
after dispatch, if sent by nationally-recognized overnight courier and (iii)
on the third Business Day following the date on which the piece of mail
containing such communication is posted, if sent by mail. As used herein,
"Business Day" means a day that is not a Saturday, Sunday or a day on which
banking institutions in the city to which the notice or communication is to
be sent are not required to be open.
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13. No Waiver. No waiver of any breach or condition of this Agreement
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shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
14. Optionee Undertaking. The Optionee hereby agrees to take whatever
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additional actions and execute whatever additional documents the Company may in
its reasonable judgment deem necessary or advisable in order to carry out or
effect one or more of the obligations or restrictions imposed on the Optionee
pursuant to the express provisions of this Agreement.
15. Modification of Rights. The rights of the Optionee are subject to
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modification and termination in certain events as provided in this Agreement and
the Plan.
16. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Delaware applicable to contracts made
and to be wholly performed therein.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18. Entire Agreement. This Agreement and the Plan constitute the entire
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agreement between the parties with respect to the subject matter hereof, and
supersede all previously written or oral negotiations, commitments,
representations and agreements with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Nontransferable Incentive Stock Option Agreement as of the date first written
above.
HEARTLAND WIRELESS
COMMUNICATIONS, INC.
By:
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J. R. Holland, Jr.
Chairman of the Board
Optionee:
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Name:
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Address:
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EXHIBIT A
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This Option shall become exercisable as to one-fifth (1/5) of the
aggregate number of Option Shares on each anniversary of the Grant Date on which
the Optionee is employed by the Company or any of its subsidiaries.
