OPTION AGREEMENT A - AIRSPAN NETWORKS INC. Non-Qualified Stock Option Agreement for Employees
OPTION
AGREEMENT A - AIRSPAN NETWORKS INC.
Employees
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Employee/Optionee:
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«Fname»
«Surname»
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Number
of shares of Common
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Stock
subject to this Agreement:
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«Options»
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Pursuant
to the Airspan Networks Inc. Omnibus Equity Compensation Plan (the "Plan"),
the
Compensation Committee (the "Committee") of the Board of Directors of Airspan
Networks Inc. (the "Company") has granted to you on this date an option (the
"Option") to purchase the number of shares of the Company's Common Stock, $.0003
par value ("Common Stock"), set forth above. Such shares (as the same may be
adjusted as described in Section 10 below) are herein referred to as the
"Option Shares".
The
Option shall constitute and be treated at all times by you and the Company
as a
"non-qualified stock option" for U.S. Federal income tax purposes and shall
not
constitute and shall not be treated as an "incentive stock option" as defined
under Section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code").
The
terms
and conditions of the Option are set out below.
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1.
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Date
of Grant.
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The
Option is granted to you as of «Grant_Date».
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2.
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Termination
of Option.
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Except
as
provided below, your right to exercise the Option (and to purchase the Option
Shares) shall expire and terminate in all events on the earliest of (i) ten
(10)
years from the date of grant, or (ii) the date provided in Section 8 below
in
the event you cease to be employed by the Company or any subsidiary or affiliate
thereof. Provided, however, that notwithstanding clauses (i) and (ii) and
anything else to the contrary in this Agreement, if you are employed by the
Company or any subsidiary or affiliate of the Company immediately before a
Change in Control (as defined in Section 4(b) below), and if the Company or
any
successor, assign, or purchaser thereof does not either (A) continue your
Option (as adjusted, if necessary, to retain its pre Change in Control economic
value and aggregate "spread" between the Option Shares' fair market value and
exercise price) or (B) grant you a new Option of at least equivalent economic
value, aggregate "spread," and other terms and conditions as your pre Change
in
Control Option, then you will automatically vest in an additional 50% of any
remaining unvested Options that you may hold, and, notwithstanding anything
herein to the contrary, you may exercise all such vested Options (together
with
any other previously or subsequently vested Options) until the later of (i)
the
date specified in Section 8 below or (ii) one (1) year from such Change in
Control, but in no event longer than ten (10) years from the original date
of
grant.
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18
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3.
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Option
Price.
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The
purchase price to be paid upon the exercise of the Option is «F8»
per
share (subject to adjustment as provided in Section 10 hereof), which is equal
to the Fair Market Value of a share of Common Stock on the date of
grant.
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4.
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Vesting.
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| (a) |
Unless
otherwise accelerated upon a Change in Control as provided for in
Section
2 above, upon the one (1) year anniversary of«Grant_Date_2»
the Option shall become exercisable to purchase ("vest with respect
to")
25% of the total number of Option Shares, and, after the first such
anniversary date, shall vest each month (as of the monthly anniversary
of
that date) for the next 36 months with respect to an additional 1/48
of
the total number of Option Shares (rounded to the nearest whole share),
such that 100% of the Option Shares will vest in four (4) years.
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(b)
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For
purposes hereof, a "Change in Control" shall be deemed to have occurred
if
the conditions set forth in any one of the following paragraphs shall
have
been satisfied:
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(1)
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Any
Person becomes the beneficial owner of shares having 50% or more
of the
total number of votes that may be cast for the election of directors
of
the Company; or
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(2)
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As
a result of, or in connection with, any tender or exchange offer,
merger
or other business combination, sale of assets or contested election,
or
any combination of the foregoing (a "Transaction"), the persons who
were
directors of the Company before the Transaction shall cease to constitute
a majority of the Board of Directors of the Company or any successor
to
the Company or its assets; or
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(3)
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If
at any time (i) the Company shall consolidate with, or merge with,
any
other person and the Company shall not be the continuing or surviving
corporation, (ii) any Person shall consolidate with, or merge with,
the Company and the Company shall be the continuing or surviving
corporation and in connection therewith, all or part of the outstanding
stock shall be changed into or exchanged for stock or other securities
of
any other Person or cash or any other property, (iii) the Company
shall be a party to a statutory share exchange with any other Person
after
which the Company is a Subsidiary of any other Person, or (iv) the
Company shall sell or otherwise transfer 50% or more of the assets
or
earnings power of the Company and its subsidiaries (taken as a whole)
to
any Person or Persons. The term "Person" shall have the meaning ascribed
to such term in Section 3(a)(9) of the Securities Exchange Act of
1934
("Exchange Act") and used in Sections 13(d) and 14(d) thereof, including
a
"group" as defined in Section 13(d)
thereof.
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(c)
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If
a Change in Control occurs and the Company fails to remain in existence,
the Option shall become an obligation of the person succeeding to
the
business of the Company or otherwise responsible for the Company's
obligations.
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(d)
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Nothing
in this Agreement pertaining to a Change in Control shall limit or
restrict the rights otherwise provided to you in this Agreement or
the
exercisability of the Option.
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5.
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Additional
Provisions Relating to Exercise.
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Once
you
become entitled to exercise the Option (and purchase Option Shares) as provided
in Section 4 hereof, such right will continue until the date on which the Option
expires and terminates pursuant to Section 2 hereof.
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6.
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Exercise
of Option.
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(a)
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An
Option may be exercised by giving written notice of exercise to the
Company specifying the number of shares to be purchased. Such notice
must
be signed and dated and be accompanied by payment in full of the
exercise
price. If a person other than you exercises the Option, such person
shall
submit proof satisfactory to the Company of the right of such person
to
exercise the Option.
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(b)
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To
exercise the Option, you must use one of the payment methods specified
below at the date of exercise. Payment of the full exercise price
must be
accompanied by payment, if you are subject to taxes in the USA, of
the
applicable income tax and social security payments, and, if you are
subject to taxes in the United Kingdom, by both primary (employee's)
and
secondary (employer's) Class 1 National Insurance Contributions ("NIC's"),
together with any other taxes to which you may be subjected arising
on the
exercise of the Options to the extent permitted by law (the "Tax
Indemnity"). Unless otherwise agreed to by the Committee, payment
of the
option price and payment in respect of the Tax Indemnity must be
made by
(i) cashier's check or wire transfer to the Company’s bank account, (ii)
by shares of Common Stock already owned by you (provided, that for
any
such shares that you acquired pursuant to an option issued to you
by the
Company, you have held such shares for at least six months), or (iii)
by a
cashless exercise transaction whereby you simultaneously exercise
an
Option, sell the shares of the Common Stock thereby acquired, and
use the
proceeds from such sale for payment of the exercise price; provided,
however,
that with the prior approval of the Committee, payment of such option
price and/or Tax Indemnity may instead be made, in whole or in part,
by
the delivery to the Company of a promissory note in a form and amount
satisfactory to the Committee, provided that the principal amount
of such
note shall not exceed the excess of such aggregate option price and
Tax
Indemnity obligation over the aggregate par value of the purchased
Option
Shares. The Option shall be deemed to be exercised upon receipt by
the
Company of both the required written notice and full payment of the
exercise price and any other amounts required
above.
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(c)
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Subject
to the other applicable provisions of this Agreement and the Plan,
the
Company shall issue a certificate or certificates representing the
number
of Option Shares to which the person exercising the Option is entitled
as
soon as practicable after the date of exercise. Unless the person
exercising the Option otherwise directs the Company in writing, the
certificate or certificates will be registered in your
name.
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(d)
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Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased
upon exercise of the Option, and no certificate representing such
shares,
shall be issued or delivered if (a) such shares have not been admitted
to
listing upon official notice of issuance on each stock exchange,
if any,
upon which shares of that class are then listed, or (b) in the
opinion of counsel to the Company, such issuance or delivery would
(i) cause the Company to be in violation of or to incur liability
under any federal, state or other securities law, or any other requirement
of law or any requirement of any stock exchange regulations or listing
agreement to which the Company is a party, or of any administrative
or
regulatory body having jurisdiction over the Company or (ii) require
registration (apart from any registrations as have been theretofore
completed by the Company covering such shares) under any federal,
state,
or other securities or similar law.
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7.
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Transferability
of Option.
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The
Option may not be transferred by you (other than by will or the laws of descent
and distribution or a domestic relations order) and may be exercised during
your
lifetime only by you (or your personal representative) or by a spouse or former
spouse under a domestic relations order. For purposes of this Section, a
‘domestic relations order’ is an order that (i) relates to the division of
marital property rights with a spouse or former spouse and (ii) made pursuant
to
a State domestic relations law.
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8.
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Termination
of Employment.
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| (a) |
In
the event that (i) the Company or any subsidiary, affiliate, or parent
thereof terminates your employment, or (ii) you terminate your
employment for
any reason whatsoever (other than as a result of your death or total
and
permanent disability (as determined by the Company or its designated
representative)), then the Option may only be exercised within ninety
(90)
days after the date you cease to be so employed, and only to the
same
extent that you were entitled to exercise the Option on the date
you
ceased to be so employed by reason of such termination and had not
previously done so.
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| (b) |
In
the event that you cease to be employed by the Company or any subsidiary,
affiliate, or parent thereof by reason of total and permanent disability
(as determined by the Company or its designated representative),
then the
Option may only be exercised within one year after the date you cease
to
be so employed, and only to the same extent that you were entitled
to
exercise the Option on the date you ceased to be so employed by reason
of
such disability and had not previously done
so.
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| (c) |
In
the event that you die while employed by the Company or any subsidiary,
affiliate, or parent thereof (or die within a period of one year
after
ceasing to be employed by the Company or any subsidiary, affiliate,
or
parent thereof by reason of disability (as described in Section 8(b)
hereof) or within 90 days of ceasing to be so employed for any other
reason), the Option may only be exercised within one year after your
death. In such event, the Option may be exercised during such one-year
period by the executor or administrator of your estate or by any
person
who shall have acquired the Option through bequest or inheritance,
but
only to the same extent that you were entitled to exercise the Option
immediately prior to the time of your death and you had not previously
done so.
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(d)
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Notwithstanding
any provision contained in this Section 8 to the contrary, (i) the
time limits provided for in this Section 8 shall be subject to extension
in the event of a Change in Control, to the extent provided for in
Section
2 hereof, and (ii) in no event may the Option be exercised to any
extent by anyone after the tenth (10th) anniversary of the date of
grant
of the Option.
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9.
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Representations.
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You
represent and warrant that you understand the tax consequences of the granting
of the Option to you, the acquisition of rights to exercise the Option with
respect to any Option Shares, the exercise, release or other disposal of the
Option and purchase of Option Shares, and the subsequent sale or other
disposition of any Option Shares. In addition, you understand that the Company
may be required to pay, or account for taxes in respect of any compensation
income, or other income or gain realized by you upon exercise of the Option
granted hereunder. To the extent that the Company is required to pay, account
for or withhold any such taxes, then, unless both you and the Committee have
otherwise agreed upon alternate arrangements, you hereby agree that the Company
may deduct from any payments of any kind otherwise due to you an amount equal
to
the total taxes required to be so paid, accounted for or withheld (as permitted
by law), or if such payments are inadequate to satisfy such taxes, or if no
such
payments are due or to become due to you, then you agree to provide the Company
with cash funds or make other arrangements satisfactory to the Company regarding
such payment.
If
you
are subject to income taxes in the United Kingdom, the offer of the Options
contained in this Agreement is further conditional
upon
your agreeing at the request of the Company to enter into such written agreement
or election with the Company and/or with any connected person of the Company
as
is required to procure that you will assume responsibility for such (employer's)
Class 1 NIC's as would otherwise fall on the Company in connection with the
grant, exercise, release or other disposal of your Options. Any failure on
your
part to enter into any such agreement or election within seven days of the
date
of receipt from the Company of a notice requiring the same, will result in
the
cancellation of the Options granted to you under the terms of this Agreement
and
pending entry by you into such agreement or election you agree that no exercise,
or further exercise, of the Options will be permitted.
It
is
understood that all matters with respect to the total amount of taxes to be
withheld in respect of any such compensation income shall be determined by
the
Company in its sole discretion.
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10.
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Adjustments.
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In
the
event that, after the date hereof, the outstanding shares of the Company's
Common Stock shall be increased or decreased or changed into or exchanged for
a
different number or kind of shares of stock or other securities of the Company
or of another corporation through reorganization, merger or consolidation,
recapitalization, reclassification, stock split, split-up, combination or
exchange of shares or declaration of any dividends payable in Common Stock,
the
Committee shall appropriately adjust the number of shares of Common Stock (and
the option price per share) subject to the unexercised portion of the Option
(to
the nearest possible full share), and such adjustment shall be effective and
binding for all purposes of this Agreement and the Plan.
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11.
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Continuation
of Employment.
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Neither
the Plan nor the Option shall confer upon you any right to continue in the
employ of (or any other relationship with) the Company or any subsidiary,
affiliate, or parent thereof, or limit in any respect the right of the Company
or any subsidiary, affiliate, or parent thereof to terminate your employment
or
other relationship with the Company or any subsidiary, affiliate, or parent
thereof, as the case may be, at any time.
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12.
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Confidentiality
and Non-Competition.
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Notwithstanding
any other provision of this Agreement, this Option may not be exercised on
or
after the date that (and any Option Shares acquired pursuant to this Option
or
the proceeds from the subsequent sale of such Shares shall be forfeited by
you
if) you engage in any conduct that violates any non-competition, confidentiality
or non-solicitation provisions (a) under your employment or other agreement
with the Company (or any of its affiliates or subsidiaries) or (b) that are
otherwise applicable to your employment with the Company (or any of its
affiliates or subsidiaries). You acknowledge that this Option constitutes good,
valuable and sufficient consideration for his or her performance of those
provisions.
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13.
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Stockholder
Rights.
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No
person
or entity shall be entitled to vote, receive dividends, or be deemed for any
purpose the holder of any Option Shares until the Option shall have been duly
exercised to purchase such Option Shares in accordance with the provisions
of
this Agreement and the applicable share certificate shall have been issued.
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14.
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Plan
Documents.
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This
Agreement is qualified in its entirety by reference to the provisions of the
Plan, as amended from time to time, which are hereby incorporated herein by
reference. Capitalized terms not defined herein shall have the meaning ascribed
to them in the Plan. However, notwithstanding the above, no Plan amendment
may
deprive you of any Options theretofore granted under the Plan without your
consent, and no Plan amendment requiring shareholder approval (if any) may
be
made without such shareholder approval.
The
interpretation and construction by the Committee of the Plan, this Agreement,
the Options granted hereunder, and such rules and regulations as may be adopted
by the Committee for the purpose of administering the Plan, shall be final
and
binding upon you. Until the Options shall expire, terminate, or be exercised
in
full, the Company shall, upon written request therefor, send a copy of the
Plan,
in its then-current form, to you or any other person or entity then entitled
to
exercise the Options.
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15.
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Governing
Law.
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This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Washington, but without regard to the principle of conflict of laws
thereof. If any one or more provisions of this Agreement shall be found to
be
illegal or unenforceable in any respect, the validity and enforceability of
the
remaining provisions hereof shall not in any way be affected or impaired
thereby.
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16.
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Lock
Up
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You
acknowledge that in connection with any public offering of the Common Stock,
the
underwriters for the Company may require that the Company's officers, directors,
and/or certain other shareholders not sell their shares of Common Stock for
a
certain period of time before or after the effectiveness of the Registration
Statement filed in connection with such offering. You hereby agree that upon
the
Company's request in connection with any such public offering, that you will
not, directly or indirectly, offer, sell, contract to sell, make subject to
any
purchase option, or otherwise dispose of any shares of Common Stock for a period
requested by the underwriter or its representative, not to exceed 10
days before
and 180 days after the date of the effectiveness of the
Registration Statement, without the prior written consent of the underwriter
or
its representative.
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17.
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Successors
and Assigns.
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This
Agreement shall be binding upon and inure to the benefit of the successors
and
assigns of the Company and upon the legal representatives, executors,
administrators, heirs, legatees and any permitted assignee of the
Optionee.
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18.
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Notices.
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All
notices and other communications required or permitted hereunder shall be in
writing and deemed to have been received on the date of delivery if delivered
by
hand or overnight express, or three days after the date of posting if mailed
by
registered or certified mail, postage prepaid, addressed to the Company, c/o
Manager of Human Resources, at ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
and
to you at your address as set forth herein (or such other address to which
the
Company or you hereby notify the other party hereto to send such notices and
communications). Such notices and other communications shall not be considered
delivered until actually received or deemed received pursuant to this
Section 17.
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19.
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Entire
Agreement.
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This
Agreement constitutes the entire agreement between the Company and you and
supersedes any prior agreements and understandings, oral or written, between
the
Company and you concerning the subject matter of this Agreement.
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20.
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Construction.
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The
section headings contained in this Agreement are for reference only and shall
have no effect on the interpretation of any of the provisions of this
Agreement.
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21.
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Amendment.
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This
Agreement may (except as provided in the Plan) only be amended, altered or
modified by a written instrument signed by the parties hereto, or their
respective successors, and it may not be terminated (except as provided herein
or in the Plan).
Please
acknowledge receipt of this Agreement by signing the enclosed copy of this
Agreement in the space provided below and returning it promptly to the Secretary
of the Company.
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By:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Its:
Chief Executive Officer
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| Accepted and Agreed To As of Date: | |||
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«Fname»
«Surname»
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(Employee/Optionee)
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Address:
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OPTION
AGREEMENT B - AIRSPAN NETWORKS INC.
Employees
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Employee/Optionee:
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«Fname»
«Surname»
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Number
of shares of Common
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Stock
subject to this Agreement:
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«Options»
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Pursuant
to the Airspan Networks Inc. Omnibus Equity Compensation Plan (the "Plan"),
the
Compensation Committee (the "Committee") of the Board of Directors of Airspan
Networks Inc. (the "Company") has granted to you on this date an option (the
"Option") to purchase the number of shares of the Company's Common Stock, $.0003
par value ("Common Stock"), set forth above. Such shares (as the same may be
adjusted as described in Section 10 below) are herein referred to as the
"Option Shares".
The
Option shall constitute and be treated at all times by you and the Company
as a
"non-qualified stock option" for U.S. Federal income tax purposes and shall
not
constitute and shall not be treated as an "incentive stock option" as defined
under Section 422(b) of the Internal Revenue Code of 1986, as amended (the
"Code").
The
terms
and conditions of the Option are set out below.
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22.
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Date
of Grant.
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The
Option is granted to you as of «Grant_Date».
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23.
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Termination
of Option.
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Except
as
provided below, your right to exercise the Option (and to purchase the Option
Shares) shall expire and terminate in all events on the earliest of (i) ten
(10)
years from the date of grant, or (ii) the date provided in Section 8 below
in
the event you cease to be employed by the Company or any subsidiary or affiliate
thereof. Provided, however, that notwithstanding clauses (i) and (ii) and
anything else to the contrary in this Agreement, if you are employed by the
Company or any subsidiary or affiliate of the Company immediately before a
Change in Control you will automatically vest 100% of any remaining unvested
Options that you may hold. Notwithstanding anything herein to the contrary,
you
may exercise all such vested Options until the later of (i) the date specified
in Section 8 below or (ii) one (1) year from such Change in Control, but in
no
event longer than ten (10) years from the original date of grant.
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24.
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Option
Price.
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The
purchase price to be paid upon the exercise of the Option is «F8»
per
share (subject to adjustment as provided in Section 10 hereof), which is equal
to the Fair Market Value of a share of Common Stock on the date of
grant.
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25.
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Vesting.
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| (a) |
Unless
otherwise accelerated upon a Change in Control as provided for in
Section
2 above, upon the one (1) year anniversary of«Grant_Date_2»
the Option shall become exercisable to purchase ("vest with respect
to")
25% of the total number of Option Shares, and, after the first such
anniversary date, shall vest each month (as of the monthly anniversary
of
that date) for the next 36 months with respect to an additional 1/48
of
the total number of Option Shares (rounded to the nearest whole share),
such that 100% of the Option Shares will vest in four (4) years.
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(c)
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For
purposes hereof, a "Change in Control" shall be deemed to have occurred
if
the conditions set forth in any one of the following paragraphs shall
have
been satisfied:
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(2)
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Any
Person becomes the beneficial owner of shares having 50% or more
of the
total number of votes that may be cast for the election of directors
of
the Company; or
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(2)
|
As
a result of, or in connection with, any tender or exchange offer,
merger
or other business combination, sale of assets or contested election,
or
any combination of the foregoing (a "Transaction"), the persons who
were
directors of the Company before the Transaction shall cease to constitute
a majority of the Board of Directors of the Company or any successor
to
the Company or its assets; or
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(3)
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If
at any time (i) the Company shall consolidate with, or merge with,
any
other person and the Company shall not be the continuing or surviving
corporation, (ii) any Person shall consolidate with, or merge with,
the Company and the Company shall be the continuing or surviving
corporation and in connection therewith, all or part of the outstanding
stock shall be changed into or exchanged for stock or other securities
of
any other Person or cash or any other property, (iii) the Company
shall be a party to a statutory share exchange with any other Person
after
which the Company is a Subsidiary of any other Person, or (iv) the
Company shall sell or otherwise transfer 50% or more of the assets
or
earnings power of the Company and its subsidiaries (taken as a whole)
to
any Person or Persons. The term "Person" shall have the meaning ascribed
to such term in Section 3(a)(9) of the Securities Exchange Act of
1934
("Exchange Act") and used in Sections 13(d) and 14(d) thereof, including
a
"group" as defined in Section 13(d)
thereof.
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(c)
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If
a Change in Control occurs and the Company fails to remain in existence,
the Option shall become an obligation of the person succeeding to
the
business of the Company or otherwise responsible for the Company's
obligations.
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(e)
|
Nothing
in this Agreement pertaining to a Change in Control shall limit or
restrict the rights otherwise provided to you in this Agreement or
the
exercisability of the Option.
|
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26.
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Additional
Provisions Relating to Exercise.
|
Once
you
become entitled to exercise the Option (and purchase Option Shares) as provided
in Section 4 hereof, such right will continue until the date on which the Option
expires and terminates pursuant to Section 2 hereof.
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27.
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Exercise
of Option.
|
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(a)
|
An
Option may be exercised by giving written notice of exercise to the
Company specifying the number of shares to be purchased. Such notice
must
be signed and dated and be accompanied by payment in full of the
exercise
price. If a person other than you exercises the Option, such person
shall
submit proof satisfactory to the Company of the right of such person
to
exercise the Option.
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(b)
|
To
exercise the Option, you must use one of the payment methods specified
below at the date of exercise. Payment of the full exercise price
must be
accompanied by payment, if you are subject to taxes in the USA, of
the
applicable income tax and social security payments, and, if you are
subject to taxes in the United Kingdom, by both primary (employee's)
and
secondary (employer's) Class 1 National Insurance Contributions ("NIC's"),
together with any other taxes to which you may be subjected arising
on the
exercise of the Options to the extent permitted by law (the "Tax
Indemnity"). Unless otherwise agreed to by the Committee, payment
of the
option price and payment in respect of the Tax Indemnity must be
made by
(i) cashier's check or wire transfer to the Company’s bank account, (ii)
by shares of Common Stock already owned by you (provided, that for
any
such shares that you acquired pursuant to an option issued to you
by the
Company, you have held such shares for at least six months), or (iii)
by a
cashless exercise transaction whereby you simultaneously exercise
an
Option, sell the shares of the Common Stock thereby acquired, and
use the
proceeds from such sale for payment of the exercise price; provided,
however,
that with the prior approval of the Committee, payment of such option
price and/or Tax Indemnity may instead be made, in whole or in part,
by
the delivery to the Company of a promissory note in a form and amount
satisfactory to the Committee, provided that the principal amount
of such
note shall not exceed the excess of such aggregate option price and
Tax
Indemnity obligation over the aggregate par value of the purchased
Option
Shares. The Option shall be deemed to be exercised upon receipt by
the
Company of both the required written notice and full payment of the
exercise price and any other amounts required
above.
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(c)
|
Subject
to the other applicable provisions of this Agreement and the Plan,
the
Company shall issue a certificate or certificates representing the
number
of Option Shares to which the person exercising the Option is entitled
as
soon as practicable after the date of exercise. Unless the person
exercising the Option otherwise directs the Company in writing, the
certificate or certificates will be registered in your
name.
|
|
(d)
|
Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased
upon exercise of the Option, and no certificate representing such
shares,
shall be issued or delivered if (a) such shares have not been admitted
to
listing upon official notice of issuance on each stock exchange,
if any,
upon which shares of that class are then listed, or (b) in the
opinion of counsel to the Company, such issuance or delivery would
(i) cause the Company to be in violation of or to incur liability
under any federal, state or other securities law, or any other requirement
of law or any requirement of any stock exchange regulations or listing
agreement to which the Company is a party, or of any administrative
or
regulatory body having jurisdiction over the Company or (ii) require
registration (apart from any registrations as have been theretofore
completed by the Company covering such shares) under any federal,
state,
or other securities or similar law.
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|
28.
|
Transferability
of Option.
|
The
Option may not be transferred by you (other than by will or the laws of descent
and distribution or a domestic relations order) and may be exercised during
your
lifetime only by you (or your personal representative) or by a spouse or former
spouse under a domestic relations order. For purposes of this Section, a
‘domestic relations order’ is an order that (i) relates to the division of
marital property rights with a spouse or former spouse and (ii) made pursuant
to
a State domestic relations law.
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29.
|
Termination
of Employment.
|
| (a) |
In
the event that (i) the Company or any subsidiary, affiliate, or parent
thereof terminates your employment, or (ii) you terminate your
employment for
any reason whatsoever (other than as a result of your death or total
and
permanent disability (as determined by the Company or its designated
representative)), then the Option may only be exercised within ninety
(90)
days after the date you cease to be so employed, and only to the
same
extent that you were entitled to exercise the Option on the date
you
ceased to be so employed by reason of such termination and had not
previously done so.
|
| (b) |
In
the event that you cease to be employed by the Company or any subsidiary,
affiliate, or parent thereof by reason of total and permanent disability
(as determined by the Company or its designated representative),
then the
Option may only be exercised within one year after the date you cease
to
be so employed, and only to the same extent that you were entitled
to
exercise the Option on the date you ceased to be so employed by reason
of
such disability and had not previously done
so.
|
| (c) |
In
the event that you die while employed by the Company or any subsidiary,
affiliate, or parent thereof (or die within a period of one year
after
ceasing to be employed by the Company or any subsidiary, affiliate,
or
parent thereof by reason of disability (as described in Section 8(b)
hereof) or within 90 days of ceasing to be so employed for any other
reason), the Option may only be exercised within one year after your
death. In such event, the Option may be exercised during such one-year
period by the executor or administrator of your estate or by any
person
who shall have acquired the Option through bequest or inheritance,
but
only to the same extent that you were entitled to exercise the Option
immediately prior to the time of your death and you had not previously
done so.
|
|
(e)
|
Notwithstanding
any provision contained in this Section 8 to the contrary, (i) the
time limits provided for in this Section 8 shall be subject to extension
in the event of a Change in Control, to the extent provided for in
Section
2 hereof, and (ii) in no event may the Option be exercised to any
extent by anyone after the tenth (10th) anniversary of the date of
grant
of the Option.
|
|
30.
|
Representations.
|
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You
represent and warrant that you understand the tax consequences of the granting
of the Option to you, the acquisition of rights to exercise the Option with
respect to any Option Shares, the exercise, release or other disposal of the
Option and purchase of Option Shares, and the subsequent sale or other
disposition of any Option Shares. In addition, you understand that the Company
may be required to pay, or account for taxes in respect of any compensation
income, or other income or gain realized by you upon exercise of the Option
granted hereunder. To the extent that the Company is required to pay, account
for or withhold any such taxes, then, unless both you and the Committee have
otherwise agreed upon alternate arrangements, you hereby agree that the Company
may deduct from any payments of any kind otherwise due to you an amount equal
to
the total taxes required to be so paid, accounted for or withheld (as permitted
by law), or if such payments are inadequate to satisfy such taxes, or if no
such
payments are due or to become due to you, then you agree to provide the Company
with cash funds or make other arrangements satisfactory to the Company regarding
such payment.
If
you
are subject to income taxes in the United Kingdom, the offer of the Options
contained in this Agreement is further conditional
upon
your agreeing at the request of the Company to enter into such written agreement
or election with the Company and/or with any connected person of the Company
as
is required to procure that you will assume responsibility for such (employer's)
Class 1 NIC's as would otherwise fall on the Company in connection with the
grant, exercise, release or other disposal of your Options. Any failure on
your
part to enter into any such agreement or election within seven days of the
date
of receipt from the Company of a notice requiring the same, will result in
the
cancellation of the Options granted to you under the terms of this Agreement
and
pending entry by you into such agreement or election you agree that no exercise,
or further exercise, of the Options will be permitted.
It
is
understood that all matters with respect to the total amount of taxes to be
withheld in respect of any such compensation income shall be determined by
the
Company in its sole discretion.
|
31.
|
Adjustments.
|
In
the
event that, after the date hereof, the outstanding shares of the Company's
Common Stock shall be increased or decreased or changed into or exchanged for
a
different number or kind of shares of stock or other securities of the Company
or of another corporation through reorganization, merger or consolidation,
recapitalization, reclassification, stock split, split-up, combination or
exchange of shares or declaration of any dividends payable in Common Stock,
the
Committee shall appropriately adjust the number of shares of Common Stock (and
the option price per share) subject to the unexercised portion of the Option
(to
the nearest possible full share), and such adjustment shall be effective and
binding for all purposes of this Agreement and the Plan.
|
32.
|
Continuation
of Employment.
|
Neither
the Plan nor the Option shall confer upon you any right to continue in the
employ of (or any other relationship with) the Company or any subsidiary,
affiliate, or parent thereof, or limit in any respect the right of the Company
or any subsidiary, affiliate, or parent thereof to terminate your employment
or
other relationship with the Company or any subsidiary, affiliate, or parent
thereof, as the case may be, at any time.
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33.
|
Confidentiality
and Non-Competition.
|
Notwithstanding
any other provision of this Agreement, this Option may not be exercised on
or
after the date that (and any Option Shares acquired pursuant to this Option
or
the proceeds from the subsequent sale of such Shares shall be forfeited by
you
if) you engage in any conduct that violates any non-competition, confidentiality
or non-solicitation provisions (a) under your employment or other agreement
with the Company (or any of its affiliates or subsidiaries) or (b) that are
otherwise applicable to your employment with the Company (or any of its
affiliates or subsidiaries). You acknowledge that this Option constitutes good,
valuable and sufficient consideration for his or her performance of those
provisions.
|
34.
|
Stockholder
Rights.
|
No
person
or entity shall be entitled to vote, receive dividends, or be deemed for any
purpose the holder of any Option Shares until the Option shall have been duly
exercised to purchase such Option Shares in accordance with the provisions
of
this Agreement and the applicable share certificate shall have been issued.
|
35.
|
Plan
Documents.
|
This
Agreement is qualified in its entirety by reference to the provisions of the
Plan, as amended from time to time, which are hereby incorporated herein by
reference. Capitalized terms not defined herein shall have the meaning ascribed
to them in the Plan. However, notwithstanding the above, no Plan amendment
may
deprive you of any Options theretofore granted under the Plan without your
consent, and no Plan amendment requiring shareholder approval (if any) may
be
made without such shareholder approval.
The
interpretation and construction by the Committee of the Plan, this Agreement,
the Options granted hereunder, and such rules and regulations as may be adopted
by the Committee for the purpose of administering the Plan, shall be final
and
binding upon you. Until the Options shall expire, terminate, or be exercised
in
full, the Company shall, upon written request therefor, send a copy of the
Plan,
in its then-current form, to you or any other person or entity then entitled
to
exercise the Options.
|
36.
|
Governing
Law.
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Washington, but without regard to the principle of conflict of laws
thereof. If any one or more provisions of this Agreement shall be found to
be
illegal or unenforceable in any respect, the validity and enforceability of
the
remaining provisions hereof shall not in any way be affected or impaired
thereby.
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|
37.
|
Lock
Up
|
You
acknowledge that in connection with any public offering of the Common Stock,
the
underwriters for the Company may require that the Company's officers, directors,
and/or certain other shareholders not sell their shares of Common Stock for
a
certain period of time before or after the effectiveness of the Registration
Statement filed in connection with such offering. You hereby agree that upon
the
Company's request in connection with any such public offering, that you will
not, directly or indirectly, offer, sell, contract to sell, make subject to
any
purchase option, or otherwise dispose of any shares of Common Stock for a period
requested by the underwriter or its representative, not to exceed 10
days before
and 180 days after the date of the effectiveness of the
Registration Statement, without the prior written consent of the underwriter
or
its representative.
|
38.
|
Successors
and Assigns.
|
This
Agreement shall be binding upon and inure to the benefit of the successors
and
assigns of the Company and upon the legal representatives, executors,
administrators, heirs, legatees and any permitted assignee of the
Optionee.
|
39.
|
Notices.
|
All
notices and other communications required or permitted hereunder shall be in
writing and deemed to have been received on the date of delivery if delivered
by
hand or overnight express, or three days after the date of posting if mailed
by
registered or certified mail, postage prepaid, addressed to the Company, c/o
Manager of Human Resources, at ▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
and
to you at your address as set forth herein (or such other address to which
the
Company or you hereby notify the other party hereto to send such notices and
communications). Such notices and other communications shall not be considered
delivered until actually received or deemed received pursuant to this
Section 17.
|
40.
|
Entire
Agreement.
|
This
Agreement constitutes the entire agreement between the Company and you and
supersedes any prior agreements and understandings, oral or written, between
the
Company and you concerning the subject matter of this Agreement.
|
41.
|
Construction.
|
The
section headings contained in this Agreement are for reference only and shall
have no effect on the interpretation of any of the provisions of this
Agreement.
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42.
|
Amendment.
|
This
Agreement may (except as provided in the Plan) only be amended, altered or
modified by a written instrument signed by the parties hereto, or their
respective successors, and it may not be terminated (except as provided herein
or in the Plan).
Please
acknowledge receipt of this Agreement by signing the enclosed copy of this
Agreement in the space provided below and returning it promptly to the Secretary
of the Company.
|
By:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
|
|
Its:
Chief Executive Officer
|
| Accepted and Agreed To As of Date: | |||
|
|
|||
|
|
«Fname»
«Surname»
|
||
|
(Employee/Optionee)
|
|||
|
Address:
|
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