EXHIBIT 99.2
FORTEL INC.
2000 EQUITY INCENTIVE PLAN
OPTION AGREEMENT
(INCENTIVE STOCK OPTION OR NONSTATUTORY STOCK OPTION)
Pursuant to your Notice of Grant of Stock Options ("Grant Notice") and
this Option Agreement, Fortel Inc. (the "Company") has granted you an option
under its 2000 Equity Incentive Plan (the "Plan") to purchase the number of
shares of the Company's Common Stock indicated in your Grant Notice at the
exercise price indicated in your Grant Notice. Defined terms not explicitly
defined in this Option Agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
I. VESTING. Subject to the limitations contained herein, your option will
vest as provided in your Grant Notice, provided that vesting will cease
upon the termination of your Continuous Service.
II. NUMBER OF SHARES AND EXERCISE PRICE. The number of shares of Common
Stock subject to your option and your exercise price per share
referenced in your Grant Notice may be adjusted from time to time for
capitalization adjustments, as provided in Section 11(a) of the Plan.
III. METHOD OF PAYMENT. Payment of the exercise price is due in full upon
exercise of all or any part of your option. You may elect to make
payment of the exercise price either (1) in cash or by check or (2) in
the Company's sole discretion at the time your option is exercised and
provided that at the time of exercise the Common Stock is publicly
traded and quoted regularly in THE WALL STREET JOURNAL, pursuant to a
program developed under Regulation T (or similar rule or regulations)
as promulgated by the Federal Reserve Board that, prior to the issuance
of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt of your irrevocable instructions to pay the
aggregate exercise price to the Company from the sales proceeds of
shares subject your option.
IV. WHOLE SHARES. You may exercise your option only for whole shares of
Common Stock.
V. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, you may not exercise your option unless the shares of
Common Stock issuable upon such exercise are then registered under the
Securities Act or, if such shares of Common Stock are not then so
registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities
Act. The exercise of your option must also comply with other applicable
laws and regulations governing your option, and you may not exercise
your option if the Company determines that such exercise would not be
in material compliance with such laws and regulations.
VI. TERM. You may not exercise your option before the commencement of its
term or after its term expires. The term of your option commences on
the effective date of the grant of your option (the "Date of Grant")
and expires upon the EARLIEST of the following:
(a) three (3) months after the termination of your
Continuous Service for any reason other than your Disability or death, provided
that if during any part of such three- (3-) month period your option is not
exercisable solely because of the condition set forth in the preceding paragraph
relating to "Securities Law Compliance," your option shall not expire until the
earlier of the date of expiration specified in your option (the "Expiration
Date") or until it shall have been exercisable for an aggregate period of three
(3) months after the termination of your Continuous Service;
(b) twelve (12) months after the termination of your
Continuous Service due to your Disability;
(c) eighteen (18) months after your death if you die
either during your Continuous Service or within three (3) months after your
Continuous Service terminates;
(d) the Expiration Date; or
(e) the day before the tenth (10th) anniversary of the
Date of Grant.
If your option is an incentive stock option, note that, to obtain the
federal income tax advantages associated with an "incentive stock option," the
Code requires that at all times beginning on the date of grant of your option
and ending on the day three (3) months before the date of your option's
exercise, you must be an employee of the Company or an Affiliate, except in the
event of your death or Disability. The Company has provided for extended
exercisability of your option under certain circumstances for your benefit but
cannot guarantee that your option will necessarily be treated as an "incentive
stock option" if you continue to provide services to the Company or an Affiliate
as a Consultant or Director after your employment terminates or if you otherwise
exercise your option more than three (3) months after the date your employment
terminates.
VII. EXERCISE.
(f) You may exercise the vested portion of your option
during its term by delivering a Notice of Exercise (in a form designated by the
Company) together with the exercise price to the Secretary of the Company, or to
such other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require.
(g) By exercising your option you agree that, as a
condition to any exercise of your option, the Company may require you to enter
into an arrangement providing for the payment by you to the Company of any tax
withholding obligation of the Company arising by reason of (1) the exercise of
your option, (2) the lapse of any substantial risk of forfeiture to which the
shares of Common Stock are subject at the time of exercise, or (3) the
disposition of shares of Common Stock acquired upon such exercise.
(h) If your option is an incentive stock option, by
exercising your option you agree that you will notify the Company in writing
within fifteen (15) days after the date of any disposition of any of the shares
of the Common Stock issued upon exercise of your option that occurs within two
(2) years after the date of your option grant or within one (1) year after such
shares of Common Stock are transferred upon exercise of your option.
VIII. TRANSFERABILITY. Your option is not transferable, except by will or by
the laws of descent and distribution, and is exercisable during your
life only by you. Notwithstanding the foregoing, by delivering written
notice to the Company, in a form satisfactory to the Company, you may
designate a third party who, in the event of your death, shall
thereafter be entitled to exercise your option.
IX. RIGHT OF REPURCHASE. To the extent provided in the Company's bylaws as
amended from time to time, the Company shall have the right to
repurchase all or any part of the shares of Common Stock you acquire
pursuant to the exercise of your option.
X. OPTION NOT A SERVICE CONTRACT. Your option is not an employment or
service contract, and nothing in your option shall be deemed to create
in any way whatsoever any obligation on your part to continue in the
employ of the Company or an Affiliate, or of the Company or an
Affiliate to continue your employment. In addition, nothing in your
option shall obligate the Company or an Affiliate, their respective
shareholders, Boards of Directors, Officers or Employees to continue
any relationship that you might have as a Director or Consultant for
the Company or an Affiliate.
XI. WITHHOLDING OBLIGATIONS.
(i) At the time you exercise your option, in whole or in
part, or at any time thereafter as requested by the Company, you hereby
authorize withholding from payroll and any other amounts payable to you,
and otherwise agree to make adequate provision for (including by means of a
"cashless exercise" pursuant to a program developed under Regulation T (or
similar rule or regulation) as promulgated by the Federal Reserve Board to the
extent permitted by the Company), any sums required to satisfy the federal,
state, local and foreign tax withholding obligations of the Company or an
Affiliate, if any, which arise in connection with your option.
(j) Upon your request and subject to approval by the
Company, in its sole discretion, and compliance with any applicable conditions
or restrictions of law, the Company may withhold from fully vested shares of
Common Stock otherwise issuable to you upon the exercise of your option a number
of whole shares of Common Stock having a Fair Market Value, determined by the
Company as of the date of exercise, not in excess of the minimum amount of tax
required to be withheld by law. If the date of determination of any tax
withholding obligation is deferred to a date later than the date of exercise of
your option, share withholding pursuant to the preceding sentence shall not be
permitted unless you make a proper and timely election under Section 83(b) of
the Code, covering the aggregate number of shares of Common Stock acquired upon
such exercise with respect to which such determination is otherwise deferred, to
accelerate the determination of such tax withholding obligation to the date of
exercise of your option. Notwithstanding the filing of such election, shares of
Common Stock shall be withheld solely from fully vested shares of Common Stock
determined as of the date of exercise of your option that are otherwise issuable
to you upon such exercise. Any adverse consequences to you arising in connection
with such share withholding procedure shall be your sole responsibility.
(k) You may not exercise your option unless the tax
withholding obligations of the Company and/or any Affiliate are satisfied.
Accordingly, you may not be able to exercise your option when desired even
though your option is vested, and the Company shall have no obligation to issue
a certificate for such shares of Common Stock.
XII. NOTICES. Any notices provided for in your option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or,
in the case of notices delivered by mail by the Company to you, five
(5) days after deposit in the United States mail, postage prepaid,
addressed to you at the last address you provided to the Company.
XIII. GOVERNING PLAN DOCUMENT. Your option is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your
option, and is further subject to all interpretations, amendments,
rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the
provisions of your option and those of the Plan, the provisions of the
Plan shall control.
