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EXHIBIT 99.3
NONQUALIFIED
STOCK OPTION AGREEMENT
IPCELL TECHNOLOGIES, INC. 1999 STOCK OPTION PLAN
1. Grant of Option. Pursuant to the IPCell Technologies, Inc. 1999 Stock
Option Plan (the "Plan"), IPCell Technologies, Inc. (the "Company") grants to
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(Name of Participant)
an option to purchase from the Company a total of __________ full shares
("Optioned Shares") of Common Stock of the Company at $__________ per share in
the amounts, during the periods, and upon the terms and conditions set forth in
this Agreement. The Date of Grant of this Stock Option is ________________,
20__.
2. Subject to Plan. This Stock Option and its exercise are subject to
the terms and conditions of the Plan, but the terms of the Plan shall not be
considered an enlargement of any benefits under this Agreement. Any capitalized
term used herein that is not specifically defined in this Agreement shall have
the same meaning assigned to it in the Plan. This Stock Option is subject to any
rules promulgated pursuant to the Plan by the Board or the Committee.
3. Option Period. Subject to certain restrictions and conditions set
forth in the Plan, the Option Period will begin on ________________, 20__ (the
"Date of Grant") and will terminate on ________________, 20__.
4. Exercise and Vesting. Except as specifically provided in this
Agreement and subject to certain restrictions and conditions set forth in the
Plan, the Optioned Shares shall become vested and exercisable in accordance with
Schedule A which is attached and made a part of the Agreement.
5. Term; Forfeiture. Except as otherwise provided in this Agreement any
portion of this Stock Option that is not vested will be forfeited on the date
the Participant ceases to be employed by (or if the Participant is a consultant
or an Outside Director, ceases to provide services to) the Company and all its
Subsidiaries. This Stock Option, and all unexercised, vested Optioned Shares
granted to the Participant hereunder, will terminate and be forfeited at the
first of the following to occur:
a. 5 p.m. on the date the Option Period terminates;
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b. 5 p.m. on the date which is twelve (12) months following the
Participant's Termination of Service due to death, Disability,
or Retirement;
c. 5 p.m. on the date which is sixty days (60) days following the
Participant's Termination of Service by the Company without
Cause;
d. 5 p.m. on the date which is thirty (30) days following the
Participant's voluntary Termination of Service for any reason;
or
e. 5 p.m. on the day prior to the date of the Participant's
Termination of Service for Cause.
6. Manner of Exercise.
(a) General Provisions. Subject to such administrative
regulations as the Committee may from time to time adopt, this Stock
Option may be exercised by the delivery of written notice to the
Committee setting forth the number of shares of Common Stock with
respect to which the Stock Option is to be exercised and the date of
exercise thereof (the "Exercise Date") which shall be at least three (3)
days after giving such notice unless an earlier time shall have been
mutually agreed upon. If the Participant is exercising the Stock Option
to purchase shares of Common Stock as permitted in subsection 6(b)
below, the Participant shall deliver to the Company on the Exercise Date
consideration with a value equal to the total purchase price of the
shares to be purchased, payable as follows: (a) cash or (b) Common Stock
(including Restricted Stock), valued at its Fair Market Value on the
Exercise Date, and/or (c) any other form of payment which is acceptable
to the Committee. In the event that shares of Restricted Stock are
tendered as consideration for the exercise of a Stock Option, a number
of shares of Common Stock issued upon the exercise of the Stock Option,
equal to the number of shares of Restricted Stock used as consideration
therefor, shall be subject to the same restrictions as the Restricted
Stock so tendered.
(b) Exercise for Stock. Upon payment of all amounts due from the
Participant, the Company shall cause a certificate for the Optioned
Shares then being purchased to be delivered to the Participant (or the
person exercising the Participant's Stock Option in the event of his
death) at its principal business office within ten (10) business days
after the Exercise Date.
The obligation of the Company to deliver shares of Common Stock shall,
however, be subject to the condition that if at any time the Committee shall
determine in its discretion that the listing, registration, or qualification of
the Stock
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Option or the Optioned Shares upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the Stock
Option or the issuance or purchase of shares of Common Stock thereunder, then
the Stock Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
If the Participant fails to pay for any of the Optioned Shares specified
in such notice or fails to accept delivery thereof, then the Participant's right
to purchase such Optioned Shares may be terminated by the Company.
7. Who May Exercise. Subject to the terms and conditions set forth in
Sections 3, 4, 5, and 6 above, during the lifetime of the Participant, this
Stock Option may be exercised only by the Participant, or by the Participant's
guardian or personal representative. If, upon the Participant's Termination of
Service by reason of death or Disability prior to the termination of the Option
Period, the Participant then has not exercised this Stock Option in full as of
the date of death or Disability, the following persons may exercise this Stock
Option on behalf of the Participant at any time prior to the earlier of the
dates specified in Section 5 hereof: (i) if the Participant is Disabled, the
guardian or personal representative of the Participant; or (ii) if the
Participant dies, the personal representative of his estate, or the person who
acquired the right to exercise this Stock Option by bequest or inheritance or by
reason of the death of the Participant; provided that this Stock Option shall
remain subject to the other terms of this Agreement, the Plan, and applicable
laws, rules, and regulations.
8. No Fractional Shares. This Stock Option may be exercised only with
respect to full shares, and no fractional share of stock shall be issued.
9. Non-Assignability. This Stock Option is not assignable or
transferable by the Participant except by will or by the laws of descent and
distribution.
10. No Rights as Stockholder. The Participant will have no rights as a
stockholder with respect to any shares covered by this Stock Option until the
issuance of a certificate or certificates to the Participant for the shares.
Except as otherwise provided in Section 11 hereof, no adjustment shall be made
for dividends or other rights for which the record date is prior to the issuance
of such certificate or certificates.
11. Adjustment of Number of Shares and Related Matters. The number of
shares of Common Stock covered by this Stock Option, and the purchase price
thereof, shall be subject to adjustment in accordance with Article XI of the
Plan.
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12. Participant's Representations. Notwithstanding any of the provisions
hereof, the Participant hereby agrees that he or she will not exercise the Stock
Option granted hereby, and that the Company will not be obligated to issue any
shares to the Participant hereunder, if the exercise thereof or the issuance of
such shares shall constitute a violation by the Participant or the Company of
any provision of any law or regulation of any governmental authority. Any
determination in this connection by the Board shall be final, binding, and
conclusive. The obligations of the Company and the rights of the Participant are
subject to all applicable laws, rules, and regulations.
13. Investment Representation. Unless the Common Stock is issued to him
or her in a transaction registered under applicable federal and state securities
laws, by his or her execution hereof, the Participant represents and warrants to
the Company that all Common Stock which may be purchased hereunder will be
acquired by the Participant for investment purposes for his or her own account
and not with any intent for resale or distribution in violation of federal or
state securities laws. Unless the Common Stock is issued to him or her in a
transaction registered under the applicable federal and state securities laws,
all certificates issued with respect to the Common Stock shall bear an
appropriate restrictive investment legend.
14. Participant's Acknowledgments. The Participant acknowledges receipt
of a copy of the Plan, and represents that he or she is familiar with the terms
and provisions thereof, and hereby accepts this Stock Option subject to all the
terms and provisions thereof. The Participant hereby agrees to accept as
binding, conclusive, and final all decisions or interpretations of the
Committee, as that term is defined in the Plan, upon any questions arising under
the Plan or this Agreement.
15. Law Governing. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the state of Texas (excluding any
conflicts of law rule or principle of Texas law that might refer the governance,
construction, or interpretation of this Agreement to the laws of another state).
16. No Right to Continue Employment. Nothing herein shall be construed
to confer upon the Participant the right to continue in the employment or
providing services to the Company or any Subsidiary, whether as an employee,
consultant, or Outside Director, or interfere with or restrict in any way the
right of the Company or any Subsidiary to discharge the Participant as an
employee, consultant or Outside Director.
17. Legal Construction. In the event that any one or more of the terms,
provisions, or agreements that are contained in this Agreement shall be held by
a Court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect for any reason, the invalid, illegal, or unenforceable term,
provision, or agreement shall not affect any other term, provision, or agreement
that is
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contained in this Agreement and this Agreement shall be construed in all
respects as if the invalid, illegal, or unenforceable term, provision, or
agreement had never been contained herein.
18. Covenants and Agreements as Independent Agreements. Each of the
covenants and agreements that are set forth in this Agreement shall be construed
as a covenant and agreement independent of any other provision of this
Agreement. The existence of any claim or cause of action of the Participant
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of the covenants and
agreements that are set forth in this Agreement.
19. Entire Agreement. This Agreement together with the Plan supersede
any and all other prior understandings and agreements, either oral or in
writing, between the parties with respect to the subject matter hereof and
constitute the sole and only agreements between the parties with respect to the
said subject matter. All prior negotiations and agreements between the parties
with respect to the subject matter hereof are merged into this Agreement. Each
party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made by any party or by
anyone acting on behalf of any party, which are not embodied in this Agreement
or the Plan and that any agreement, statement or promise that is not contained
in this Agreement or the Plan shall not be valid or binding or of any force or
effect.
20. Parties Bound. The terms, provisions, representations, warranties,
covenants, and agreements that are contained in this Agreement shall apply to,
be binding upon, and inure to the benefit of the parties and their respective
heirs, executors, administrators, legal representatives, and permitted
successors and assigns.
21. Modification. No change or modification of this Agreement shall be
valid or binding upon the parties unless the change or modification is in
writing and signed by the parties. Notwithstanding the preceding sentence, the
Company may amend the Plan or revoke this Stock Option to the extent permitted
in the Plan.
22. Headings. The headings that are used in this Agreement are used for
reference and convenience purposes only and do not constitute substantive
matters to be considered in construing the terms and provisions of this
Agreement.
23. Gender and Number. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context
requires otherwise.
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24. Notice. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered only when actually received by the Company or by
the Participant, as the case may be, at the addresses set forth below, or at
such other addresses as they have theretofore specified by written notice
delivered in accordance herewith. Notice to the Company shall be addressed and
delivered as follows:
IPCell Technologies, Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Notice to the Participant shall be addressed and delivered as set forth
on the signature page.
25. Tax Requirements. The Participant, upon exercise of any portion of
the Stock Option shall be required to pay the Company the amount of all taxes
which the Company is required to withhold as a result of the exercise of the
Stock Option; such obligation to pay such taxes may be satisfied by the
following, or any combination thereof: (i) the delivery of cash to the Company
in an amount necessary to satisfy the required tax withholding obligation of the
Company and/or (ii) the actual delivery by the exercising Participant to the
Company of shares of Common Stock which the Participant owns and/or the
Company's withholding of a number of shares to be delivered upon the exercise of
the Stock Option), which shares so delivered or withheld have an aggregate Fair
Market Value which equals the minimum required tax withholding payment; provided
that, shares cannot be withheld in connection with the exercise of a Stock
Option in excess of the minimum number required for tax withholding, and to
permit the Stock Option to be accounted for as a fixed award. Any such
withholding payments with respect to the exercise of any portion of the Stock
Option in cash or by actual delivery of shares of Common Stock shall be required
to be made within thirty (30) days after the delivery to the Participant of any
certificate representing the shares of Common Stock acquired upon exercise of
the Stock Option.
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IN WITNESS WHEREOF, the Committee has caused this Agreement to be
executed by its duly authorized officer, and the Participant, to evidence his or
her consent and approval of all the terms hereof, has duly executed this
Agreement, as of the date specified in Section 1 hereof.
IPCell Technologies, Inc.
By:
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Name:
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Title:
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Participant:
Signature:
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Name:
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Address:
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