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EXHIBIT 99.2
NONQUALIFIED
STOCK OPTION AGREEMENT
IPCELL TECHNOLOGIES, INC. 1999 STOCK OPTION PLAN
1. Grant of Option. Pursuant to the IPCell Technologies, Inc. 1999 Stock Option
Plan, (the "Plan"), IPCell Technologies, Inc. (the "Company") grants to
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(Name of Participant)
an option to purchase from the Company a total of ________________ full shares
("Optioned Shares") of Common Stock of the Company at $_____________ per share
in the amounts, during the periods, and upon the terms and conditions set forth
in this Agreement. The Date of Grant of this Stock Option is _______________,
1999.
2. Subject to Plan. This Stock Option and its exercise are subject to the terms
and conditions of the Plan, but the terms of the Plan shall not be considered an
enlargement of any benefits under this Agreement. Any capitalized term used
herein that is not specifically defined in this Agreement shall have the same
meaning assigned to it in the Plan. This Stock Option is subject to any rules
promulgated pursuant to the Plan by the Board or the Committee.
3. Option Period. Subject to certain restrictions and conditions set forth in
the Plan, the Option Period will begin on September 13th, 1999 (the "Date of
Grant") and will terminate on September 13th, 2009.
4. Exercise and Vesting. Except as specifically provided in this Agreement and
subject to certain restrictions and conditions set forth in the Plan, the
Optioned Shares shall become vested in accordance with the following schedule:
a. Twenty-five percent (25%) of the total Optioned Shares on the
first anniversary of the Date of Grant; and
b. An additional one-thirty-sixth (1/36) of the remaining
seventy- five percent (75%) of Optioned Shares at the end of
each month subsequent to the month in which the first
anniversary of the Date of Grant occurs.
Subject to the restrictions herein, the Participant may exercise a Stock Option,
to the extent it is vested, only upon or after a Liquidity Event (as defined in
the Plan). However, after a Public Offering, no Stock Option may be exercised
within the last two weeks of the fiscal quarter through seventy-two (72) hours
after the Company's earnings release.
5. Term; Forfeiture. This Stock Option, and all unexercised Optioned Shares
granted to the Participant hereunder (whether or not vested), will terminate and
be forfeited at the first of the following to occur:
a. 5 p.m. on the date the Option Period terminates;
b. 5 p.m. on the date which is twelve (12) months following
the Participant's Termination of Service due to death,
Disability, or Retirement;
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c. 5 p.m. on the date which is sixty days (60) days
following the Participant's Termination of Service by
the Company without Cause;
d. 5 p.m. on the date which is thirty (30) days following
the Participant's voluntary Termination of Service for
any reason; or
e. 5 p.m. on the day prior to the date of the Participant's
Termination of Service for Cause.
6. Manner of Exercise.
(a) General Provisions. Subject to such administrative
regulations as the Committee may from time to time adopt, this Stock
Option may be exercised by the delivery of written notice to the
Committee setting forth the number of shares of Common Stock with
respect to which the Stock Option is to be exercised and the date of
exercise thereof (the "Exercise Date") which shall be at least three (3)
days after giving such notice unless an earlier time shall have been
mutually agreed upon. If the Participant is exercising the Stock Option
to purchase shares of Common Stock as permitted in subsection 6(b)
below, the Participant shall deliver to the Company on the Exercise Date
consideration with a value equal to the total purchase price of the
shares to be purchased, payable as follows: (a) cash or (b) Common Stock
(including restricted stock), valued at its Fair Market Value on the
Exercise Date, and/or (c) any other form of payment which is acceptable
to the Committee. In the event that shares of restricted stock are
tendered as consideration for the exercise of a Stock Option, a number
of shares of Common Stock issued upon the exercise of the Stock Option,
equal to the number of shares of restricted stock used as consideration
therefor, shall be subject to the same restrictions as the restricted
stock so tendered.
(b) Exercise for Stock. Upon payment of all amounts due from the
Participant, the Company shall cause a certificate for the Optioned
Shares then being purchased to be delivered to the Participant (or the
person exercising the Participant's Stock Option in the event of his
death) at its principal business office within ten (10) business days
after the Exercise Date.
The obligation of the Company to deliver shares of Common Stock
shall, however, be subject to the condition that if at any time the
Committee shall determine in its discretion that the listing,
registration, or qualification of the Stock Option or the Optioned
Shares upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the
Stock Option or the issuance or purchase of shares of Common Stock
thereunder, then the Stock Option may not be exercised in whole or in
part unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions not
acceptable to the Committee.
If the Participant fails to pay for any of the Optioned Shares
specified in such notice or fails to accept delivery thereof, then the
Participant's right to purchase such Optioned Shares may be terminated
by the Company.
7. Who May Exercise. Subject to the terms and conditions set forth in Sections
3, 4, 5, and 6 above, during the lifetime of the Participant, this Stock Option
may be exercised only by the Participant, or by the Participant's guardian. If,
upon the Participant's Termination of Service by reason of death or Disability
prior to the termination of the Option Period, the Participant then has not
exercised this Stock Option in full as of the date of death or Disability, the
following persons may exercise this Stock Option on behalf of the Participant at
any time prior to the earlier of the dates specified in Section 5 hereof: (i) if
the Participant is Disabled, the guardian of the Participant; or (ii) if the
Participant dies, the personal
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representative of his estate, or the person who acquired the right to exercise
this Stock Option by bequest or inheritance or by reason of the death of the
Participant; provided that this Stock Option shall remain subject to the other
terms of this Agreement, the Plan, and applicable laws, rules, and regulations.
8. No Fractional Shares. This Stock Option may be exercised only with respect to
full shares, and no fractional share of stock shall be issued.
9. Non-Assignability. This Stock Option is not assignable or transferable by the
Participant except by will or by the laws of descent and distribution.
10. No Rights as Stockholder. The Participant will have no rights as a
stockholder with respect to any shares covered by this Stock Option until the
issuance of a certificate or certificates to the Participant for the shares.
Except as otherwise provided in Section 11 hereof, no adjustment shall be made
for dividends or other rights for which the record date is prior to the issuance
of such certificate or certificates.
11. Adjustment of Number of Shares and Related Matters. The number of shares of
Common Stock covered by this Stock Option, and the purchase price thereof, shall
be subject to adjustment in accordance with Article XI of the Plan.
12. Participant's Representations. Notwithstanding any of the provisions hereof,
the Participant hereby agrees that he or she will not exercise the Stock Option
granted hereby, and that the Company will not be obligated to issue any shares
to the Participant hereunder, if the exercise thereof or the issuance of such
shares shall constitute a violation by the Participant or the Company of any
provision of any law or regulation of any governmental authority. Any
determination in this connection by the Board shall be final, binding, and
conclusive. The obligations of the Company and the rights of the Participant are
subject to all applicable laws, rules, and regulations.
13. Investment Representation. Unless the Common Stock is issued to him or her
in a transaction registered under applicable federal and state securities laws,
by his or her execution hereof, the Participant represents and warrants to the
Company that all Common Stock which may be purchased hereunder will be acquired
by the Participant for investment purposes for his or her own account and not
with any intent for resale or distribution in violation of federal or state
securities laws. Unless the Common Stock is issued to him or her in a
transaction registered under the applicable federal and state securities laws,
all certificates issued with respect to the Common Stock shall bear an
appropriate restrictive investment legend.
14. Participant's Acknowledgments. The Participant accepts this Stock Option
subject to all the terms and provisions of the Plan, a copy of which is
available upon request. The Participant hereby agrees to accept as binding,
conclusive, and final all decisions or interpretations of the Committee, as that
term is defined in the Plan, upon any questions arising under the Plan or this
Agreement.
15. Law Governing. This Agreement shall be governed by, construed, and enforced
in accordance with the laws of the state of Texas (excluding any conflicts of
law rule or principle of Texas law that might refer the governance,
construction, or interpretation of this Agreement to the laws of another state).
16. No Right to Continue Employment. Nothing herein shall be construed to confer
upon the Participant the right to continue in the employment or providing
services to the Company or any Subsidiary, whether as an employee, consultant,
or Outside Director, or interfere with or restrict in any way the right of the
Company or any Subsidiary to discharge the Participant as an employee,
consultant or Outside Director.
17. Legal Construction. In the event that any one or more of the terms,
provisions, or agreements that are contained in this Agreement shall be held by
a Court of competent jurisdiction to be invalid,
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illegal, or unenforceable in any respect for any reason, the invalid, illegal,
or unenforceable term, provision, or agreement shall not affect any other term,
provision, or agreement that is contained in this Agreement and this Agreement
shall be construed in all respects as if the invalid, illegal, or unenforceable
term, provision, or agreement had never been contained herein.
18. Covenants and Agreements as Independent Agreements. Each of the covenants
and agreements that is set forth in this Agreement shall be construed as a
covenant and agreement independent of any other provision of this Agreement. The
existence of any claim or cause of action of the Participant against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants and agreements that
are set forth in this Agreement.
19. Entire Agreement. This Agreement together with the Plan supersede any and
all other prior understandings and agreements, either oral or in writing,
between the parties with respect to the subject matter hereof and constitute the
sole and only agreements between the parties with respect to the said subject
matter. All prior negotiations and agreements between the parties with respect
to the subject matter hereof are merged into this Agreement. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party or by anyone acting
on behalf of any party, which are not embodied in this Agreement or the Plan and
that any agreement, statement or promise that is not contained in this Agreement
or the Plan shall not be valid or binding or of any force or effect.
20. Parties Bound. The terms, provisions, representations, warranties,
covenants, and agreements that are contained in this Agreement shall apply to,
be binding upon, and inure to the benefit of the parties and their respective
heirs, executors, administrators, legal representatives, and permitted
successors and assigns.
21. Modification. No change or modification of this Agreement shall be valid or
binding upon the parties unless the change or modification is in writing and
signed by the parties. Notwithstanding the preceding sentence, the Company may
amend the Plan or revoke this Stock Option to the extent permitted in the Plan.
22. Headings. The headings that are used in this Agreement are used for
reference and convenience purposes only and do not constitute substantive
matters to be considered in construing the terms and provisions of this
Agreement.
23. Gender and Number. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
24. Notice. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered only when actually received by the Company or by the
Participant, as the case may be, at the addresses set forth below, or at such
other addresses as they have theretofore specified by written notice delivered
in accordance herewith. Notice to the Company shall be addressed and delivered
as follows:
IPCell Technologies, Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
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Notice to the Participant shall be addressed and delivered as set forth
on the signature page.
25. Tax Requirements . The Participant, upon exercise of any portion of the
Stock Option shall be required to pay the Company the amount of all taxes which
the Company is required to withhold as a result of the exercise of the Stock
Option; such obligation to pay such taxes may be satisfied by the following, or
any combination thereof: (i) the delivery of cash to the Company in an amount
necessary to satisfy the required tax withholding obligation of the Company
and/or (ii) the actual delivery by the exercising Participant to the Company of
shares of Common Stock which the Participant owns and/or the Company's
withholding of a number of shares to be delivered upon the exercise of the Stock
Option), which shares so delivered or withheld have an aggregate Fair Market
Value which equals the minimum required tax withholding payment; provided that,
shares cannot be withheld in connection with the exercise of a Stock Option in
excess of the minimum number required for tax withholding, and to permit the
Stock Option to be accounted for as a fixed award. Any such withholding payments
with respect to the exercise of any portion of the Stock Option in cash or by
actual delivery of shares of Common Stock shall be required to be made within
thirty (30) days after the delivery to the Participant of any certificate
representing the shares of Common Stock acquired upon exercise of the Stock
Option.
IN WITNESS WHEREOF, the Committee has caused this Agreement to be
executed by its duly authorized officer, and the Participant, to evidence his or
her consent and approval of all the terms hereof, has duly executed this
Agreement, as of the date specified in Section 1 hereof.
IPCELL TECHNOLOGIES, INC. PARTICIPANT:
By: By:
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(Signature) (Signature)
Name: Name:
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(Print) (Print)
Title: Address:
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