1
EXHIBIT 99.8
BLUESTEEL NETWORKS, INC.
1999 NON-EMPLOYEE STOCK PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
BlueSteel Networks, Inc., a Delaware corporation (the "Company"), hereby
grants an option to purchase its Common Stock to the optionee named below. The
terms and conditions of the option are set forth in this Stock Option Agreement
and in the Company's 1999 Non-Employee Stock Plan (the "Plan").
X. XXXXX INFORMATION
Date of Grant: __________, 199__
Name of Optionee: _______________________________________
Optionee's Social Security Number: ________-______-________
Number of Shares of Common Stock: ___________
Exercise Price per Share: $__________
Vesting Schedule: [Vesting to be determined]
BY SIGNING BELOW, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS DESCRIBED
IN THIS STOCK OPTION AGREEMENT, INCLUDING THE ATTACHED TERMS AND
CONDITIONS, NOTICE OF EXERCISE AND PLAN.
Optionee:_______________________________________________________________________
(Signature)
Company:________________________________________________________________________
(Signature)
Title:__________________________________________________________________________
2
II. TERMS AND CONDITIONS
1. VESTING. Your option vests on the dates specified in the first page
of this Stock Option Agreement.
2. TERM OF OPTION. Your option expires on the day before the 5th
anniversary of the Date of Xxxxx.
3. EXERCISE OF OPTION.
(a) LEGAL RESTRICTIONS. The Company will not permit you to exercise
your option if the issuance of Common Stock at that time would
violate any law or regulation. You represent and agree, which by
your execution of the Stock Option Agreement you hereby confirm,
that the Common Stock to be acquired upon exercising your option
will be acquired for investment, and not with a view to the sale
or distribution thereof. You understand that your option is not,
and any Common Stock acquired on exercise thereof at the time of
issuance may not be, registered under the Securities Act of
1933, as amended, on the ground that the issuance of securities
hereunder is exempt from registration under the Securities Act
pursuant to section 4(2) thereof, and that the Company's
reliance on such exemption is based on your representations set
forth herein. You realize that the basis for the exemption may
not be present if, notwithstanding such representations, you
have in mind merely acquiring the securities for a fixed or
determinable period in the future, or for a market rise, or for
sale if the market does not rise. You do not have any such
intention. If the sale of Common Stock under the Plan is not
registered under the Securities Act but an exemption is
available which requires an investment representation or other
representation, you shall represent and agree at the time of
exercise to make such representations as are deemed necessary or
appropriate by the Company and its counsel.
(b) METHOD OF EXERCISE. To exercise your option, you must complete
and file the Company's "Notice of Exercise" form at the address
given on the form, together with full payment. The Notice of
Exercise will be effective when it is received by the Company.
If someone else wants to exercise your option after your death,
that person must prove to the Company's satisfaction that he or
she is entitled to do so.
(c) FORM OF PAYMENT. When you submit a Notice of Exercise, you must
include payment of the aggregate Exercise Price for the Common
Stock you are purchasing. Payment may be made in one (or a
combination) of the following forms.
- Your personal check, a cashier's check or a money order.
- To the extent that a public market for Common Stock
exists as determined by the Company, by delivery (on a
form approved by the
3
Company) of an irrevocable direction to a securities
broker to sell Common Stock and to deliver all or part
of the sale proceeds to the Company in payment of the
aggregate Exercise Price.
(d) WITHHOLDING TAXES. You will not be allowed to exercise your
option unless you make acceptable arrangements to pay any
withholding or other taxes that may be due as a result of the
option exercise or the sale of Common Stock acquired upon
exercise of your option.
4. EXERCISE OF OPTION BEFORE VESTING. You may not exercise your option
before it is fully vested.
5. RESALE RESTRICTIONS/MARKET STAND-OFF. In connection with any
underwritten public offering by the Company of its equity securities pursuant to
an effective registration statement filed under the Securities Act of 1993, as
amended, including the Company's initial public offering, you shall not sell,
make any short sale of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or agree to engage in
any of the foregoing transactions with respect to any Common Stock without the
prior written consent of the Company or its underwriters, for such period of
time after the effective date of such registration statement as may be requested
by the Company or such underwriters, not to exceed one hundred eighty (180)
days. To enforce the provisions of this paragraph, the Company may impose
stop-transfer instructions with respect to the Common Stock until the end of the
applicable stand-off period. You may not to sell any Common Stock at a time when
applicable laws, regulations or Company or underwriter trading policies prohibit
a sale.
6. RIGHT OF FIRST REFUSAL. If you propose to sell, pledge or otherwise
transfer to a third party any Common Stock acquired under this Stock Option
Agreement, or any interest in such Common Stock, the Company shall have the
"Right of First Refusal" with respect to all (and not less than all) of such
Common Stock. If you desire to transfer Common Stock acquired under this Stock
Option Agreement, you must give a written notice ("Transfer Notice") to the
Company describing fully the proposed transfer, including the number of shares
proposed to be transferred, the proposed transfer price and the name and address
of the proposed transferee. The Transfer Notice shall be signed both by you and
by the proposed new transferee and must constitute a binding commitment of both
parties to the transfer of the Common Stock. The Company shall have the right to
purchase all, and not less than all, of the Common Stock on the terms of the
proposal described in the Transfer Notice (subject, however, to any change in
such terms permitted in the next paragraph) by delivery of a notice of exercise
of the Right of First Refusal within thirty (30) days after the date when the
Transfer Notice was received by the Company.
If the Company fails to exercise its Right of First Refusal before or
within thirty (30) days after the date when it received the Transfer Notice, you
may, not later than ninety (90) days following receipt of the Transfer Notice by
the Company, conclude a transfer of the Common Stock subject to the Transfer
Notice on the terms and conditions described in the Transfer Notice. Any
proposed transfer on terms and conditions different from those described in the
Transfer Notice, as well as any subsequent proposed transfer by you, shall again
be subject to the Right of First Refusal and shall require compliance with the
procedure described
4
in the paragraph above. If the Company exercises its Right of First Refusal, the
parties shall consummate the sale of the Common Stock on the terms set forth in
the Transfer Notice within sixty (60) days after the date when the Company
received the Transfer Notice (or within such longer period as may have been
specified in the Transfer Notice); provided, however, that if the Transfer
Notice provided that payment for the Common Stock was to be made in a form other
than lawful money paid at the time of transfer, the Company shall have the
option of paying for the Common Stock with lawful money equal to the present
value of the consideration described in the Transfer Notice.
The Company's Right of First Refusal shall inure to the benefit of its
successors and assigns, shall be freely assignable in whole or in part and shall
be binding upon any transferee of the Common Stock. The Company's right of First
Refusal shall terminate if the Company's Common Stock is listed on an
established stock exchange or is quoted regularly on the Nasdaq Stock Market.
7. TRANSFER OF OPTION. Prior to your death, only you may exercise your
option. You cannot transfer or assign your option. For instance, you may not
sell your option or use it as security for a loan. If you attempt to do any of
these things, your option will immediately become invalid. You may, however,
dispose of your option in your will. Regardless of any marital property
settlement agreement, the Company is not obligated to honor a notice of exercise
from your spouse or former spouse, nor is the Company obligated to recognize
such individual's interest in your option in any other way.
8. NO RETENTION RIGHTS. Your option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity.
9. STOCKHOLDER RIGHTS. You, or your estate or heirs, have no rights as a
stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. ADJUSTMENTS TO COMMON STOCK. In the event of a stock split, a stock
dividend or a similar change in the Company's Common Stock, the number of shares
covered by your option and the exercise price per share may be adjusted pursuant
to the Plan. Your option shall be subject to the terms of the agreement of
merger, liquidation or reorganization in the event the Company is subject to
such corporate activity.
11. LEGENDS. All certificates representing the Common Stock issued upon
exercise of your option shall, where applicable, have endorsed thereon any
legends required by applicable law, including the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, ENCUMBERED OR IN ANY MANNER DISPOSED OF, EXCEPT IN
COMPLIANCE WITH THE TERMS OF A WRITTEN AGREEMENT BETWEEN THE COMPANY AND
THE INITIAL HOLDER HEREOF. SUCH AGREEMENT PROVIDES FOR CERTAIN TRANSFER
RESTRICTIONS, INCLUDING RIGHTS OF FIRST REFUSAL
5
UPON AN ATTEMPTED TRANSFER OF THE SECURITIES. THE SECRETARY OF THE
COMPANY WILL WRITTEN REQUEST XXXXXXX A COPY OF SUCH AGREEMENT TO THE
HOLDER WITHOUT CHARGE."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF
REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL
AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION
UNDER FEDERAL AND STATE SECURITIES LAWS ARE NOT REQUIRED."
12. APPLICABLE LAW. This Agreement will be interpreted and enforced
under the laws of the State of California.
13. INCORPORATION OF PLAN BY REFERENCE. The text of the Plan is
incorporated in this Agreement by reference. Certain capitalized terms used in
this Agreement are defined in the Plan.
This Agreement and the Plan constitute the entire understanding between
you and the Company regarding your option. Any prior agreements, commitments or
negotiations concerning your option are superseded.
6
NOTICE OF EXERCISE
BlueSteel Networks, Inc.
0000 X. Xx Xxxxxx Xxxx #000-000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Re: Exercise of Stock Option
Dear Sir or Madam:
Pursuant to the Stock Option Agreement dated __________, 199___ (the
"Stock Option Agreement") and the Company's 1999 Non-Employee Stock Plan (the
"Plan"), I hereby elect to purchase _____________ shares of the Common Stock of
the Company at aggregate exercise price of $__________. I enclose my check in
the amount of $___________;
The Common Stock is to be issued and registered in the name(s) of:
_____________________________
_____________________________
I understand that there may be tax consequences as a result of the
purchase or disposition of the Common Stock, and I have consulted with any tax
consultants I wished to consult and I am not relying on the Company for any tax
advice. I understand that my exercise is governed by my Stock Option Agreement
and the Plan and agree to abide by and be bound by their terms and conditions. I
represent that the Common Stock is being acquired solely for my own account and
not as a nominee for any other party, or for investment, and that I will not
offer, sell or otherwise dispose of any such Common Stock except under
circumstances that will not result in a violation of the Securities Act of 1933,
as amended, or any state securities laws.
Dated: __________, 199__
________________________________________
(Signature)
________________________________________
(Please Print Name)
________________________________________
________________________________________
(Address)
