Exhibit 10.2B
V-I-A INTERNET, INC.
1998 STOCK OPTION AND RESTRICTED STOCK PLAN
INCENTIVE STOCK OPTION AGREEMENT
Optionee Grant Date Number of Shares (Common) Option Price
Expiration Date $ Per Share
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$
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This Stock Option Agreement is made as of the date noted above (the "Grant
Date") by and between VIA XXX.XXXXX, Inc., a Delaware corporation (the
"Company"), and the employee named above (the "Optionee").
WHEREAS, the Board of Directors and stockholders of the Company have duly
adopted and approved the "V-I-A Internet, Inc. 1998 Stock Option and Restricted
Stock Plan" (the "Plan"), which authorizes the Company to grant to eligible
individuals options for the purchase of shares of the Company's common stock,
par value $.01 per share (the "Stock"); and
WHEREAS, the Company has determined that it is desirable and in its best
interests to grant to the Optionee, pursuant to the Plan, an option to purchase
a certain number of shares of Stock, in order to provide the Optionee with an
incentive to advance the interests of the Company and any affiliate thereof;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto do hereby agree as follows:
1. GRANT OF OPTION
Subject to the terms of the Plan, the Company hereby grants to the
Optionee the right and option (the "Option") to purchase from the Company, on
the terms and subject to the conditions set forth in the Plan and in this Option
Agreement, the above stated number of shares of Stock at the above stated per
share purchase price the ("Option Price"). This Option shall constitute an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
2. PARACHUTE LIMITATIONS
Notwithstanding any other provision of this Stock Option Agreement or
of any other agreement, contract, or understanding heretofore or hereafter
entered into by the Optionee and the Company or any Subsidiary, except an
agreement, contract, or understanding hereafter entered into that expressly
modifies or excludes application of this Section (the "Other Agreements"), and
notwithstanding any formal or informal plan or other arrangement heretofore or
hereafter adopted by the Company (or any Subsidiary) for the direct or indirect
compensation of the Optionee (including groups or classes of participants or
beneficiaries of which the Optionee is a member), whether or not such
compensation is deferred, is in cash, or is in the form of a benefit to or for
the Optionee (a "Benefit Arrangement"), if the Optionee is a "disqualified
individual," as defined in Section 280G(c) of the Code, the Option and any right
to receive any payment or other benefit under this Stock Option Agreement shall
not become exercisable or vested (i) to the extent
that such right to exercise, vesting, payment, or benefit, taking into account
all other rights, payments, or benefits to or for Optionee under the Plan, all
Other Agreements, and all Benefit Arrangements, would cause any payment or
benefit to the Optionee under this Stock Option Agreement to be considered a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code as then
in effect (a "Parachute Payment") and (ii) if, as a result of receiving a
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Parachute Payment, the aggregate after-tax amounts received by the Optionee from
the Company under this Stock Option Agreement, the Plan, all Other Agreements,
and all Benefit Arrangements would be less than the maximum after-tax amount
that could be received by Optionee without causing any such payment or benefit
to be considered a Parachute Payment. In the event that the receipt of any such
right to exercise, vesting, payment, or benefit under this Stock Option
Agreement, in conjunction with all other rights, payments, or benefits to or for
the Optionee under the Plan, any Other Agreement or any Benefit Arrangement
would cause the Optionee to be considered to have received a Parachute Payment
under this Stock Option Agreement that would have the effect of decreasing the
after-tax amount received by the Optionee as described in clause (ii) of the
preceding sentence, then the Optionee shall have the right, in the Optionee's
sole discretion, to designate those rights, payments, or benefits under this
Stock Option Agreement, the Plan, any Other Agreements, and any Benefit
Arrangements that should be reduced or eliminated so as to avoid having the
payment or benefit to the Optionee under this Stock Option Agreement be deemed
to be a Parachute Payment.
3. GRANT SUBJECT TO THE PLAN
Optionee acknowledges that he or she has received and read the Plan
and any amendments thereto. The Option granted pursuant to this Stock Option
Agreement is granted subject to the terms and conditions set forth in the Plan.
All terms and conditions of the Plan are hereby incorporated into this Stock
Option Agreement by reference and shall be deemed to be part of this Stock
Option Agreement, without regard to whether such terms and conditions are not
otherwise set forth in this Stock Option Agreement. To the extent any
capitalized words used in this Stock Option Agreement are not defined, they
shall have the definitions stated for them in the Plan. In the event that there
is any inconsistency between the provisions of this Stock Option Agreement and
of the Plan, the provisions of the Plan shall govern.
4. VESTING IN OPTION
The Option becomes vested as to twenty five percent (25%) of the
shares purchasable pursuant to the Option on the first anniversary of the first
day of the month subsequent to Optionee's commencement of employment (the
"Anniversary Date"), if the Optionee has been providing services to the Company
or any of its affiliates continuously from the Grant Date to the Anniversary
Date. Thereafter, so long as the Optionee's service has not been interrupted,
the Option becomes vested as to an additional 1/48th of the shares subject to
the Option on the first day the next 36 succeeding months. Service for this
purpose includes service as an employee, director, advisor or consultant
providing bona fide services to the Company or any of its affiliates. Any
vesting limitation may be rescinded, modified or waived by the Committee, in its
sole discretion, at any time and from time to time after the Grant Date of the
Option, so as to accelerate the time at which the Option would be vested. If
the Optionee terminates employment or other relationship with the Company by
reason of "permanent and total disability" (within the meaning of Section
22(e)(3) of the Code), the Option shall continue to vest for a period of one
year after such termination of employment or service, subject to earlier
termination of the Option as provided in Section 5.1 below. If the Optionee
terminates employment or other relationship with the Company by reason of death
prior to termination of the Option, the Option shall be fully vested. For
purposes of this Stock Option Agreement, termination of service would not be
deemed to occur if the Optionee, after terminating service in one capacity, is
immediately thereafter a director of the
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Company. Termination of service is sometimes also referred to herein as
termination of employment or other relationship with the Company or any of its
affiliates.
5. TERM AND EXERCISE OF OPTION
5.1. Term
The Option shall terminate and all rights to purchase the shares
thereunder shall cease upon the expiration of ten years after the Grant Date,
unless terminated earlier pursuant to another provision of this Stock Option
Agreement.
5.2. Option Period and Limitations on Exercise
The Optionee may exercise the Option (subject to the limitations on
exercise set forth in this Stock Option Agreement and in the Plan), to the
extent the Option is vested and has not terminated. If the Optionee terminates
employment or other relationship with the Company by reason of "permanent and
total disability" (within the meaning of Section 22(e)(3) of the Code), the
Option shall continue to vest, and shall be exercisable for a period of one year
after such termination of employment or service, subject to earlier termination
of the Option as provided in Section 5.1 above.
5.3. Limitations on Exercise of Option
Notwithstanding the foregoing Sections, in no event may the Option be
exercised: (i) in whole or in part, after ten years following the Grant Date,
(ii) following termination of employment or other relationship for Cause (as
defined below) or (iii) following termination of employment or other
relationship except as provided in Sections 6.1, 6.2 and 6.3 below. For
purposes of this Stock Option Agreement, "Cause" means (i) gross negligence or
willful misconduct in connection with the performance of duties; (ii) conviction
of a criminal offense (other than minor traffic offenses); or (iii) material
breach of any term of any employment, consulting or other services,
confidentiality, intellectual property or non-competition agreements, if any,
between Optionee and the Company or any of its affiliates.
5.4. Method of Exercise
The Option may be exercised, to the extent it is exercisable, by the
Optionee's delivery to the Company of written notice of exercise on any business
day, at the Company's principal office, addressed to the attention of the
Committee. Such notice shall specify the number of shares of Stock with respect
to which the Option is being exercised and shall be accompanied by payment in
full of the Option Price of the shares for which the Option is being exercised.
The minimum number of shares of Stock with respect to which an Option may be
exercised, in whole or in part, at any time shall be the lesser of (i) 100
shares or (ii) the maximum number of shares available for purchase under the
Option at the time of exercise. Payment of the Option Price for the shares
purchased pursuant to the exercise of the Option shall be made (i) in cash or in
cash equivalents; (ii) through the tender to the Company of shares of Stock,
which shares, if acquired from the Company, shall have been held by the Optionee
for at least six months and which shall be valued, for purposes of determining
the extent to which the Option Price has been paid thereby, at their Fair Market
Value on the date of exercise; or (iii) by a combination of the methods
described in (i) and (ii). If the Stock is publicly traded, payment in full of
the Option Price need not accompany the written notice of exercise provided that
the notice of exercise directs that the certificate or certificates for the
shares of Stock for which the Option is exercised be delivered to a licensed
broker acceptable to the Company as the agent for the individual exercising the
Option and, at the time such certificate or certificates are delivered, the
broker tenders to the Company cash (or cash equivalents acceptable to the
Company) equal to the Option Price for the shares of Stock purchased pursuant to
the exercise of the Option plus the amount (if any) of federal and/or other
taxes
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which the Company may in its judgment, be required to withhold with respect to
the exercise of the Option. An attempt to exercise the Option other than as set
forth above shall be invalid and of no force and effect. An individual holding
or exercising an Option shall have none of the rights of a stockholder (for
example, the right to receive cash or dividend payments or distributions
attributable to the subject shares of Stock or to direct the voting of the
subject shares of Stock) until the shares of Stock covered thereby are fully
paid and issued to him. Except as provided in Section 9 hereof, no adjustment
shall be made for dividends, distributions or other rights for which the record
date is prior to the date of such issuance.
5.5. Execution of the Stockholders Agreement
The Company may, at its option, require Optionee to enter into and
comply with the terms of the Amended and Restated Stockholders Agreement between
the Company and holders of the Company's Series A Preferred Stock and Series B
Preferred Stock and members of Company's management dated May 20, 1998, as may
be amended from time to time (the "Stockholders Agreement"), as a condition to
the Company's obligation to issue any stock under the Plan, and the Optionee
agrees to sign the Stockholders Agreement upon request.
6. TERMINATION OF THE SERVICE RELATIONSHIP
6.1. Termination of Employment or Other Relationship
Upon the termination of the Optionee's employment or other
relationship with the Company other than by reason of death or "permanent and
total disability" (within the meaning of Section 22(e)(3) of the Code), the
Option or portion thereof held by the Optionee that has not vested in accordance
with the provisions of Section 4 hereof shall terminate immediately, and,
subject to Section 5.3 above, any Option or portion thereof that has vested in
accordance with the provisions of Section 4 hereof but has not been exercised
shall terminate at the close of business on the 90th day following the
Optionee's termination of employment or other relationship (or, if such 90th day
is a Saturday, Sunday or holiday, at the close of business on the next preceding
day that is not a Saturday, Sunday or holiday), unless the Board of Directors of
the Company (the "Board"), in its discretion, extends the period during which
the Option may be exercised (which period may not be extended beyond the
original term of the Option). Upon termination of the Option or portion
thereof, the Optionee shall have no further right to purchase shares of Stock
pursuant to such Option or portion thereof. Whether a leave of absence or leave
on military or government service shall constitute a termination of employment
or other relationship for purposes of the Optionee shall be determined by the
Board, which determination shall be final and conclusive. For purposes of the
Option, a termination of employment, service or other relationship shall not be
deemed to occur if the Optionee is immediately thereafter a director of the
Company.
6.2. Rights in the Event of Death
If the Optionee dies while employed by, or in the service of, the
Company or any of its affiliates, the executors or administrators or legatees or
distributees of such Optionee's estate shall have the right at any time within
one year after the date of such Optionee's death, and prior to termination of
the Option pursuant to Section 5.1 above, to exercise, in whole or in part, any
Option held by such Optionee at the date of such Optionee's death.
6.3. Rights in the Event of Disability
If the Optionee's employment or other relationship with the Company or
any of its affiliates is terminated by reason of the "permanent and total
disability" (within the meaning of Section 22(e)(3) of the Code) of the
Optionee, then such Optionee shall have the right, at any time
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within one year after such termination of employment or other relationship and
prior to termination of the Option pursuant to Section 5.1 above, to exercise,
in whole or in part, the Option held by such Optionee at the date of such
termination of employment or other relationship, to the extent vested. Whether a
termination of employment or other relationship is to be considered by reason of
"permanent and total disability" for purposes of this Stock Option Agreement
shall be determined by the Committee, which determination shall be final and
conclusive.
7. TRANSFERABILITY
7.1. General Rule
Except as provided in Section 7.2, during the lifetime of an Optionee,
only the Optionee (or, in the event of legal incapacity or incompetency, the
Optionee's guardian or legal representative) may exercise the Option. Except as
provided in Section 7.2, the Option shall not be assignable or transferable by
the Optionee, other than by will or the laws of descent and distribution.
7.2. Family Transfers
An Optionee may transfer all or part of the Option to (i) any
Immediate Family Member, (ii) a trust or trusts for the exclusive benefit of any
Immediate Family Member, or (iii) a partnership in which Immediate Family
Members are the only partners, provided that (x) there may be no consideration
for any such transfer, and (y) subsequent transfers of the transferred Option
are prohibited except those in accordance with this Section 7.2 or by will or
the laws of descent and distribution. Following transfer, the Option shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer, provided that for purposes of Section 7.2 hereof
the term "Optionee" shall be deemed to refer to the transferee. The events of
termination of the employment or other relationship of Section 6.1 hereof shall
continue to be applied with respect to the Original Optionee, following which
the Option shall be exercisable by the transferee only to the extent and for the
periods specified in Sections 6.1, 6.2, or 6.3. "Immediate Family Members"
means the spouse, children and grandchildren of the Optionee.
7.3. Nontransferability of Shares
Optionee (or such other individual who is entitled to exercise an
Option) shall not sell, pledge, assign, gift, transfer, or otherwise dispose of
any shares of Stock acquired pursuant to an Option to any person or entity
without first offering such shares to the Company for purchase on the same terms
and conditions as those offered the proposed transferee. The Company may assign
its right of first refusal under this Section 7.3 in whole or in part, to (1)
any holder of stock or other securities of the Company (a "Stockholder"), (2)
any affiliate or (3) any other person or entity that the Board of Directors of
the Company determines has a sufficient relationship with or interest in the
Company. The Company shall give reasonable written notice to the Optionee of
any such assignment of its rights. The restrictions of this Section 7.3 re-
apply to any person to whom Stock that was originally acquired pursuant to an
Option is sold, pledged, assigned, bequeathed, gifted, transferred or otherwise
disposed of, without regard to the number of such subsequent transferees or the
manner in which they acquire the Stock, but the restrictions of this Section 7.3
do not apply to a transfer of Stock that occurs as a result of the death of the
Optionee or of any subsequent transferee (but shall apply to the executor, the
administrator or personal representative, the estate, and the legatees,
beneficiaries and assigns thereof).
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7.4. Repurchase Rights
Upon the termination of the Optionee's employment or other relationship
with the Company or an affiliate (whether as an employee, a director, an
independent contractor providing services to the Company or an affiliate, or
otherwise), the Company shall have the right, at any time prior to the
expiration of a 30-day period following such termination, to repurchase any or
all of the shares acquired by the individual pursuant to the Plan under the
Option (including shares that were previously transferred pursuant to Sections
7.1, 7.2 or 7.3 above, unless otherwise specified in the Stock Option
Agreement), at a price equal to the fair market value of such shares as of the
date of termination. Upon the exercise of the Option following termination of
the Optionee's employment or other relationship with the Company or an affiliate
(whether as an employee, a director, an independent contractor providing
services to the Company or an affiliate, or otherwise), the Company shall have
the right, for a period of up to 30 days following such exercise, to repurchase
any or all such shares of Stock acquired by the Optionee pursuant to such
exercise of such Option at a price that is equal to the fair market value of
such shares (including shares that were previously transferred pursuant to
Sections 7.1, 7.2 or 7.3 above) on the date of exercise (or at such other price
or the fair market value on such other date as shall have been specified by the
Board at the time of grant and set out in the appropriate Stock Option Agreement
with respect to the grant). The closing of the repurchase shall occur within 90
days of the date of termination or such longer period of time determined by the
Company in good faith to be necessary to avoid the loss of "qualified small
business stock" treatment under Section 1202 of the Code for any stockholder
other than the terminated Optionee.
7.5. Publicly Traded Stock
If the Stock is listed on an established national or regional stock
exchange or is admitted to quotation on the National Association of Securities
Dealers Automated Quotation System, or is publicly traded in an established
securities market, the foregoing transfer restrictions of Sections 7.3 and 7.4,
other than the right to repurchase non-vested shares for the Option Price, shall
terminate as of the first date that the Stock is so listed, quoted or publicly
traded.
7.6. Legend
In order to enforce the restrictions imposed upon shares of Stock
under the Plan and this Agreement, the Board may cause a legend or legends to be
placed on any certificate representing shares issued pursuant to the Plan that
complies with the applicable securities laws and regulations and makes
appropriate reference to the restrictions imposed under it.
8. Requirements of Law
The Company shall not be required to sell or issue any securities
under the Option if the sale or issuance of such securities would constitute a
violation by the Optionee, the individual exercising the Option, or the Company
of any provisions of any law or regulation of any governmental authority,
including without limitation any federal or state securities laws or
regulations. If at any time the Company shall determine, in its discretion,
that the listing, registration or qualification of any securities subject to the
Option upon any securities exchange or under any governmental regulatory body is
necessary or desirable as a condition of, or in connection with, the issuance or
purchase of securities hereunder, the 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
Company, and any delay caused thereby shall in no way affect the date of
termination of the Option. Specifically in connection with the 1933 Act,
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upon the exercise of the Option, unless a registration statement under such act
is in effect with respect to the securities covered by the Option, the Company
shall not be required to sell or issue such securities unless the Committee has
received evidence satisfactory to it that the holder of such Option may acquire
such securities pursuant to an exemption from registration under such act. Any
determination in this connection by the Committee shall be final, binding, and
conclusive. The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the 1933 Act. The Company shall not be
obligated to take any affirmative action in order to cause the exercise of the
Option or the issuance of securities pursuant thereto to comply with any law or
regulation of any governmental authority. As to any jurisdiction that expressly
imposes the requirement that the Option shall not be exercisable until the
securities covered by such Option are registered or are exempt from
registration, the exercise of such Option (under circumstances in which the laws
of such jurisdiction apply) shall be deemed conditioned upon the effectiveness
of such registration or the availability of such an exemption.
9. Effect of Changes in Capitalization
9.1. Changes in Stock.
If the number of outstanding shares of Stock is increased or decreased
or the shares of Stock are changed into or exchanged for a different number or
kind of shares or other securities of the Company on account of any
recapitalization, reclassification, stock split, reverse split, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares effected without
receipt of consideration by the Company occurring after the Grant Date, the
number and kinds of shares which may be acquired pursuant to this Option shall
be adjusted proportionately and accordingly so that the proportionate interest
of the Optionee immediately following such event shall, to the extent
practicable, be the same as immediately before such event. Any such adjustment
in this Option shall not change the aggregate Option Price payable with respect
to shares that are subject to the unexercised portion of the Option outstanding
but shall include a corresponding proportionate adjustment in the Option Price
per share. The conversion of any convertible securities of the Company shall
not be treated as an increase in shares effected without receipt of
consideration.
9.2. Reorganization in Which the Company Is the Surviving Entity and in
Which No Change of Control Occurs.
Subject to Section 9.3 hereof, if the Company shall be the surviving
entity in any reorganization, merger, or consolidation of the Company with one
or more other entities and in which no Change in Control occurs, the Option
shall pertain to and apply to the securities to which a holder of the number of
shares of Stock subject to the Option would have been entitled immediately
following such reorganization, merger, or consolidation, with a corresponding
proportionate adjustment of the Option Price per share so that the aggregate
Option Price thereafter shall be the same as the aggregate Option Price of the
shares remaining subject to the Option immediately prior to such reorganization,
merger, or consolidation. Any restrictions applicable to Restricted Stock shall
apply as well to any replacement shares received by the Optionee as a result of
the reorganization, merger or consolidation.
9.3. Reorganization, Sale of Assets or Sale of Stock Which Involves a
Change of Control.
Subject to the exceptions set forth in the last sentence of this
Section 9.3, upon the occurrence of a Change of Control, (i) all outstanding
shares of Restricted Stock shall be deemed to have vested, and all restrictions
and conditions applicable to such shares of Restricted Stock shall be
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deemed to have lapsed, immediately prior to the occurrence of such Change of
Control, and (ii) the Option shall become immediately vested conditioned upon
the consummation of the event. Upon consummation of any Change of Control, the
Option, to the extent not exercised, shall terminate. The Board shall send
written notice of an event that will result in such a termination to the
Optionee not later than the time at which the Company gives notice thereof to
its shareholders. This Section 9.3 shall not apply to any Change of Control to
the extent that (A) provision is made in writing in connection with such Change
of Control for the assumption of the Option and Restricted Stock theretofore
granted, or for the substitution for such Options and Restricted Stock of new
options and restricted stock covering the stock of a successor entity, or a
parent or subsidiary thereof, with appropriate adjustments as to the number and
kinds of shares and exercise prices, in which event Option and Restricted Stock
theretofore granted shall continue in the manner and under the terms so provided
or (B) a majority of the full Board determines that such Change of Control shall
not trigger application of the provisions of this Section 9.3 subject to Section
19.
9.4. Adjustments.
Adjustments under this Section 9 related to shares of Stock or securities of
the Company shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. No fractional shares or other
securities shall be issued pursuant to any such adjustment, and any fractions
resulting from any such adjustment shall be eliminated in each case by rounding
downward to the nearest whole share.
9.5. No Limitations on Company.
The making of Grants pursuant to the Plan shall not affect or limit in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations, or changes of its capital or business structure or to merge,
consolidate, dissolve, or liquidate, or to sell or transfer all or any part of
its business or assets.
10. DISCLAIMER OF RIGHTS
No provision in the Plan or in the Stock Option Agreement shall be
construed to confer upon any individual the right to remain in the employ or
service of the Company or any affiliate, or to interfere in any way with any
contractual or other right or authority of the Company or Service Provider
either to increase or decrease the compensation or other payments to any
individual at any time, or to terminate any employment or other relationship
between any individual and the Company. In addition, notwithstanding anything
contained in the Plan to the contrary, the Option shall not be affected by any
change of duties or position of the Optionee, so long as the Optionee continues
to be a director, officer, consultant or employee of the Company. The
obligation of the Company to pay any benefits pursuant to this Stock Option
Agreement shall be interpreted as a contractual obligation to pay only those
amounts described herein, in the manner and under the conditions prescribed
herein. The Plan and the Stock Option Agreement shall in no way be interpreted
to require the Company to transfer any amounts to a third party trustee or
otherwise hold any amounts in trust or escrow for payment to any participant or
beneficiary under the terms of the Plan. The Optionee shall not have any of the
rights of a stockholder with respect to the shares of Stock subject to an Option
except to the extent the certificates for such shares of Stock shall have been
issued upon the exercise of the Option.
11. FORFEITURE OF RIGHTS
The Company at any time shall have the right to cause a forfeiture of
the rights of the Optionee on account of the Optionee taking actions in
competition with the Company. Unless otherwise specified in an employment or
other agreement between the Company and the Optionee, the Optionee takes actions
in competition with the Company if he or she directly or indirectly owns
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any interest in, operates, joins, controls or participates as a partner,
director, principal, officer, or agent of, enters into the employment of, acts
as a consultant to, or performs any services for, any entity which has material
operations which compete with any business in which the Company or any of its
Subsidiaries is engaged during the Optionee's employment or other relationship
with the Company or any of its affiliates or at the time of the Optionee's
termination of employment or other relationship.
12. CAPTIONS
The use of captions in this Stock Option Agreement is for the
convenience of reference only and shall not affect the meaning of any provision
of such Stock Option Agreement.
13. WITHHOLDING OF TAXES
The Company or a Subsidiary, as the case may be, shall have the right
to deduct from payments of any kind otherwise due to the Optionee any Federal,
state, or local taxes of any kind required by law to be withheld upon the
issuance of any shares of Stock upon the exercise of the Option or vesting in
such shares. At the time of such exercise or vesting, the Optionee shall pay to
the Company or the Subsidiary, as the case may be, any amount that the Company
or the Subsidiary may reasonably determine to be necessary to satisfy such
withholding obligation. Subject to the prior approval of the Company or the
Subsidiary, which may be withheld by the Company or the Subsidiary, as the case
may be, in its sole discretion, the Optionee may elect to satisfy such
obligations, in whole or in part, (i) by causing the Company or the Subsidiary
to withhold shares of Stock otherwise issuable to the Optionee or (ii) by
delivering to the Company or the Subsidiary shares of Stock already owned by the
Optionee. The shares of Stock so delivered or withheld shall have an aggregate
Fair Market Value equal to such withholding obligations. The Fair Market Value
of the shares of Stock used to satisfy such withholding obligation shall be
determined by the Company or the Subsidiary as of the date that the amount of
tax to be withheld is to be determined. The Optionee who has made an election
pursuant to this Section 13 may satisfy his or her withholding obligation only
with shares of Stock that are not subject to any repurchase, forfeiture,
unfulfilled vesting, or other similar requirements.
14. SEVERABILITY
If any provision of the Plan or this Stock Option Agreement shall be
determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions thereof and hereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
15. INTERPRETATION OF THIS STOCK OPTION AGREEMENT
All decisions and interpretations made by the Company or the Committee
with regard to any question arising under the Plan or this Stock Option
Agreement shall be final, binding and conclusive on the Company and the Optionee
and any other person entitled to exercise the Option as provided for herein.
16. GOVERNING LAW
The validity and construction of this Stock Option Agreement shall be
governed by the laws of the State of Delaware but not including the choice of
law rules thereof.
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17. BINDING EFFECT
Subject to all restrictions provided for in this Stock Option
Agreement, the Plan and by applicable law limiting assignment and transfer of
this Stock Option Agreement and the Option provided for herein, this Stock
Option Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors, and
assigns.
18. NOTICE
All notices or other communications which may be or are required to be
given by any party to any other party pursuant to this Stock Option Agreement
shall be in writing and shall be mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, or transmitted by hand delivery
or telecopier (fax), addressed as follows:
If to the Company:
VIA XXX.XXXXX, Inc.
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
If to Optionee:
At the address shown in the records of the Company for
Optionee.
Each party may designate by notice in writing a new address to which any notice
or other communication may thereafter be so given. Each notice or other
communication which shall be mailed, delivered or transmitted in the manner
described above, shall be deemed sufficiently given for all purposes at such
time as it is delivered to the addressee with the return receipt, the delivery
receipt, the affidavit of personal courier or, with respect to a telecopy, upon
acknowledgment of receipt thereof and in all cases at such time as delivery is
refused by the addressee upon presentation.
19. POOLING
Notwithstanding anything in the Plan or this Stock Option Agreement to the
contrary, if any right under or feature of the Plan or this Stock Option
Agreement would cause to be ineligible for pooling of interest accounting a
transaction that would, but for the right or feature hereunder, be eligible for
such accounting treatment, the Board may modify or adjust the right or feature
so that the transaction will be eligible for pooling of interest accounting.
Such modification or adjustment may include payment of cash or issuance to
Optionee of shares of Stock having a Fair Market Value equal to the cash value
of such right or feature.
20. ENTIRE AGREEMENT
This Stock Option Agreement and the Plan together constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof. Neither this Stock Option Agreement nor any term hereof may be amended,
waived, discharged or terminated except by a written instrument signed by the
Company and the Optionee; provided, however, that the Company unilaterally may
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waive any provision hereof in writing to the extent that such waiver does not
adversely affect the interests of the Optionee hereunder, but no such waiver
shall operate as or be construed to be a subsequent waiver of the same provision
or a waiver of any other provision hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Stock Option Agreement, or caused this Stock Option Agreement to
be duly executed and delivered in their name and on their behalf, as of the day
and year first above written.
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VIA NETWORKS, INC.
By:
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Xxxx X. Xxxxxx, Vice President and General
Counsel
OPTIONEE:
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(Signature)
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