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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of this 12th day of February, 2001 (the "Effective Date"), by and between
Xxxx X. Xxxxx ("Employee") and Accelerated Networks, Inc.. ("Employer"). In
consideration of the covenants, representations and agreements set forth below,
Employer and Employee hereby agree as follows:
1. Employment of Employee. Employer hereby hires Employee pursuant to the
Agreement between Regent Pacific Management Corporation dated February 12, 2001
(the "Regent Agreement"), and Employee hereby accepts such employment on the
terms and conditions contained in this Agreement and the Regent Agreement.
2. Term of the Agreement. The initial term of this Agreement (the "Term")
shall commence upon the Effective Date and shall terminate 18 months thereafter
(the "Termination Date"), unless sooner terminated as provided herein. Employer
and Employee may, upon mutual agreement, elect to continue Employee's employment
on an at-will basis (meaning that either Employee or Employer may terminate the
employment relationship at any time with or without cause or notice), after the
initial term of this Agreement. If the term of the Regent Agreement is extended
in the future, the Termination Date of the Agreement will automatically extend
to coincide with the amended term of the Regent Agreement, unless otherwise
mutually agreed between Employer and Employee.
3. Services to be Provided by Employee.
3.1 Scope, Responsibilities and Duties. Employee agrees to provide
services to Employer, generally in the field of corporate strategy, , so that
Employer may have the benefit of the experience and knowledge possessed by
Employee (the "Services"). It shall be the duty of Employee in rendering the
Services to make such periodic reports to Employer as the directors of Employer
may, from time to time, reasonably request.
3.2. Non-exclusivity. Employee shall not be required to devote full
time to the affairs of Employer. Subject to the provisions of Section 7 below,
Employee may accept other employment and perform services for others.
4. Compensation. Employee shall receive $1,000 per week in addition to any
compensation received from Regent Pacific Management Corporation, for the
Services to be provided hereunder..
5. Expenses. Employer shall reimburse Employee for all reasonable and
necessary business expenses pursuant to the Regent Agreement.
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6. Termination. Termination pursuant to this Section shall become effective
immediately upon receipt by Employee of written notice from Employer of such
termination.
6.1 Termination by Incapacity or Disability of Employee. If Employee
shall become unable to fully perform the Services in accordance with the terms
of this Agreement due to incapacity, ill health or disability for a consecutive
period of two months, the Employer may, at its option, terminate this Agreement.
6.2 Death of Employee. Upon the death of Employee, this Agreement
shall terminate without further obligation or liability on the part of Employer
to Employee's estate.
6.3 Termination of Regent Agreement. Employee's employment shall
terminate upon termination of the Regent Agreement unless otherwise mutually
agreed between Employer and Employee.
6.4 Termination for Cause. Company may terminate Employee's employment
for "cause", which shall mean a reasonable belief that Employee has engaged in
any one of the following: (i) financial dishonesty, including, without
limitation, misappropriation of funds or property, or any attempt by Employee to
secure any personal profit related to the business or business opportunities of
the Company without the informed, written approval of the Company's Board of
Directors; (ii) refusal to comply with reasonable directives of the Company's
Board of Directors; (iii) negligence or reckless or willful misconduct in the
performance of Employee's duties; (iv) failure to perform, or continuing neglect
in the performance of, duties assigned to Employee; (v) misconduct which has a
materially adverse effect upon the Company's business or reputation; (vi) the
conviction of, or plea of nolo contendre to, any felony or a misdemeanor
involving dishonesty or fraud; (vii) the material breach of any provision of
this agreement; or (viii) violation of Company policies including, without
limitation, the Company's policies on equal employment opportunity and
prohibition of unlawful harassment.
7. Confidentiality and Trade Secrets. Employee acknowledges and agrees that
during the Term of this Agreement, and during any continuing term of employment
on at at-will basis he will become privy to important proprietary, confidential
business information and trade secrets that are the exclusive property of
Employer. This information includes, without limitation, business plans,
marketing concepts, designs, proposals, product information, financial
information, technology and costs, pricing information, customer lists, and key
accounts, including their credit information and product wants and needs (the
"Confidential Information"). This Confidential Information derives independent
economic value, both actual and potential, from not being generally known to the
public or to other persons who can obtain economic value from its disclosure and
use. As Employer has always held the Confidential Information as proprietary,
confidential trade secret information and has taken steps to insure that the
Confidential Information is not disclosed outside of Accelerated Networks, Inc.,
the Confidential Information constitutes "trade secrets" under the Uniform Trade
Secrets Act, California Civil Code Section 3426(d)(1). In light of the
foregoing, Employee therefore agrees that: (1) he will not at any time, now or
in the future, share, disseminate, disclose, discuss or use the Confidential
Information in any way; and (2) upon termination of this Agreement, Employee
will return to Employer all property, writings and/or documents in his
possession or custody belonging to or
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relating to the affairs of Employer or any of its subsidiaries or affiliates, or
comprising or relating to the Confidential Information.
8. Ownership of Intellectual Property. Employee hereby acknowledges and
agrees that any and all copyrightable works authored by Employee in connection
with the performance of the Services, alone or with others, during the Term of
this Agreement, and during any continuing term of employment on at at-will
basis, shall be deemed to have been specially ordered or commissioned for use as
either a contribution to a collective work, as a translation, as a supplementary
work, as a compilation, or as an instructional text and, as such, shall be
deemed to be "works for hire" under the United States copyright laws from the
inception of creation of such works. In the event that any such works shall be
deemed by a court of competent jurisdiction not to be a "work made for hire,"
this Agreement shall operate as an irrevocable assignment by Employee to
Employer of all right, title and interest in and to such works, including
without limitation, all worldwide copyright interests therein, in perpetuity.
The fact that such copyrightable works are created by Employee outside of
Employer's facilities or other than during Employee's working hours with
Employer, shall not diminish Employer's rights with respect to such works which
otherwise fall within this subsection. Employee agrees to execute and deliver to
Employer such further instruments or documents as may be requested by Employer
in order to effectuate the purposes of this subsection.
9. Relationship of the Parties. Employee shall not be entitled to any
vacation, retirement or health benefits or participation in any other employee
benefit plan.
10. Appointment as a Director. The Board of Directors of Employer (the
"Board") has resolved to appoint Employee as a Class III Director. In this
capacity, Employee will serve at the pleasure of the Board and pursuant to
Employer's bylaws.
11. Stock Options. Concurrently with the execution of this Agreement as an
inducement to Employee to accept employment with Employer, Employee and Employer
are executing and delivering an Option Certificate attached hereto as Exhibit A
and a Stock Option Agreement (the ("Option Agreement") attached hereto as
Exhibit B and incorporated herein by this reference, which grants to Employee
the option to purchase three million eight hundred eighty thousand six hundred
(3,880,600) shares of the Common Stock of Employer at an exercise price of
$1.938. 323,383 of the shares subject to this option shall be earned and vested
immediately on the Date of Grant and the remaining shares subject to this Option
shall be earned and vested in eleven equal monthly installments upon each month
of continued service by Employee to the Company after the Date of Grant and
shall become exercisable pursuant to the exercise schedule contained in Exhibit
B. Should Employee's employment be terminated for cause, the Options will
terminate immediately as to all unvested shares.
12. Arbitration.
12.1 Any dispute regarding any aspect of this Agreement or any act
which would violate any provision in this Agreement (hereafter referred to as
"arbitrable disputes" shall be resolved by an experienced arbitrator licensed to
practice law in the State of California and selected in accordance with the
rules of the American Arbitration Association, as the exclusive
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remedy for such dispute. Judgment on any award rendered by such arbitrator may
be entered in any court having proper jurisdiction.
12.2 Should Employee or Employer institute any legal action or
administrative proceeding regarding any dispute or matter covered by this
Section by any method other than said arbitration, the responding party shall be
entitled to recover from the other party all damages, costs, expenses and
attorney's fees incurred as a result of such action.
13. Severability and Governing Law.
13.1 Should any of the provisions in this Agreement be declared or be
determined to be illegal or invalid, all remaining parts, terms or provisions
shall be valid, and the illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement.
13.2 This Agreement is made and entered into in the State of
California and shall in all respects be interpreted, enforced and governed under
the laws of California.
14. Proper Construction.
14.1 The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
14.2 As used in this Agreement, the term "or" shall be deemed to
include the term "and/or" and the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires.
14.3 The paragraph headings used in this Agreement are intended solely
for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the interpretation of any of the provisions hereof.
15. Entire Agreement. This Agreement is the entire agreement between
Employee and Employer and fully supersedes any and all prior agreements or
understandings between the parties pertaining to its subject matter.
16. Notices. All notices, requests, demands and other communications called
for or contemplated under this Agreement shall be in writing and shall be deemed
to have been duly given when personally delivered, on the date of transmission
if sent by facsimile, on the third day after mailing if mailed to the party to
whom notice is to be given, by first class mail, postage prepaid, and properly
addressed as follows:
If to Employer: Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
If to Employee: Xxxx X. Xxxxx
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c/o Regent Pacific Management Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
17. Amendments. This Agreement may not be amended, supplemented, canceled,
or discharged except by written instrument executed by the parties hereto.
18. Waivers. All waivers hereunder shall be in writing. No waiver by any
party hereto of any breach or anticipated breach of any provision of this
Agreement by any other party shall be deemed a waiver of any other
contemporaneous, preceding, or succeeding breach or anticipated breach, whether
or not similar, on the part of the same or any other party.
IN WITNESS WHEREOF, the parties hereto have hereby executed this Agreement
as of the day and year first written above.
ACCELERATED NETWORKS, INC.
/s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- -------------------------------------
Xxxx X. Xxxxx Its: Board Member
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EXHIBIT A
OPTION CERTIFICATE
THIS IS TO CERTIFY that Accelerated Networks, Inc., a Delaware corporation
(the "COMPANY"), has granted to the employee of the Company named below a
non-statutory stock option (the "OPTION") to purchase shares of the Company's
Common Stock (the "SHARES"), and upon the terms and conditions determined by the
Compensation Committee (the "COMMITTEE") of the Board of Directors of the
Company (the "BOARD"), as follows:
Name of Optionee: Xxxx X. Xxxxx
Address of Optionee: c/o Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 3021
Number of Shares: 3,880,600, provided, however, that 323,383 of the shares
subject to this Option shall be earned and vested immediately on the Date of
Grant and the remaining shares subject to this Option shall be earned over
eleven (11) equal monthly installments upon the completion of each month of
continued service by Optionee after the Date of Grant. However, if Regent
Pacific Management Corporation's ("Regent Pacific") contract with the Company is
terminated without cause during this eleven-month period, then the entire amount
shall be considered earned upon termination.
Option Exercise Price: $ 1.938 per share
Date of Grant: March 2, 2001
Option Expiration Date: Five years from the Date of Grant.
EXERCISE SCHEDULE: The shares earned, as described above, shall be
exercisable upon vesting, provided, however, that such option shall fully vest
(i) upon the termination of Regent Pacific's contract by the Company without
cause, (ii) the termination of Employee without cause or, (iii) upon a Change of
Control Transaction.
A "Change of Control Transaction" shall mean (i) the consummation of a sale of
all or substantially all of the assets of Company, or (ii) a merger of Company
with or into another corporation in which the stockholders of Company
immediately before the transaction do not own, directly or indirectly, a
majority of Company or the surviving entity immediately following the
transaction.
OUTSIDE OF COMPANY'S 2000 STOCK INCENTIVE PLAN: The Option has been granted
outside the Company's 2000 Stock Incentive Plan and is not subject to the terms
thereof.
SUMMARY OF OTHER TERMS: This Option is defined in the Stock Option
Agreement (Non-Statutory Stock Option) (the "OPTION AGREEMENT") which is
attached to this Option
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Certificate (the "CERTIFICATE") as Exhibit B. This Certificate summarizes
certain of the provisions of the Option Agreement for your information, but is
not complete. Your rights are governed by the Option Agreement, not by this
summary. The Company strongly suggests that you carefully review the full Option
Agreement prior to signing this Certificate or exercising the Option.
Among the terms of the Option Agreement are the following:
TERMINATION OF EMPLOYMENT: While the Option terminates on the Option
Expiration Date, it will terminate earlier if you cease to be employed by the
Company or the direct or indirect subsidiary of the Company with whom you are
employed. If your employment ends as the result of any of the circumstances
described in the Exercise Schedule, above, the terms of that section shall
apply. If your employment terminates due to disability, the Option terminates
one year after the date of such termination, and is exercisable during such
one-year period as to the portion of the Option which had vested prior to the
date of termination (but in no event later than the Option Expiration Date). If
your employment terminates due to death, the Option terminates eighteen (18)
months after the date of such termination, and is exercisable during such
eighteen-month period as to the portion of the Option which had vested prior to
the date of termination (but in no event later than the Option Expiration Date).
If your employment ends for cause, the Option will terminate immediately. In all
other cases, including retirement, the Option terminates one year after the date
of termination of employment, and is exercisable during such time period as to
the portion of the Option which had vested prior to the date of termination of
employment (but in no event later than the Option Expiration Date). See Section
5 of the attached Option Agreement.
TRANSFER: The Option is personal to you, and cannot be sold, transferred,
assigned or otherwise disposed of to any other person, except upon your death.
See Section 12(d) of the attached Option Agreement.
EXERCISE: You can exercise the Option (while it is exercisable), in whole
or in part, by delivering to the Company a Notice of Exercise identical to
Exhibit "A" attached to the Option Agreement, accompanied by payment of, or
provision pursuant to the Option Agreement for the payment of, the Exercise
Price for the Shares to be purchased. The Company may require you to submit
certain written assurances to the Company with respect to your status as a
stockholder. The Company will then issue a certificate to you for the Shares you
have purchased. You are under no obligation to exercise the Option. See Section
4 of the attached Option Agreement.
ADJUSTMENTS UPON RECAPITALIZATION: The Option contains provisions which
affect your rights in the event of stock splits, stock dividends, mergers and
other major corporate reorganizations. See Section 6 of the attached Option
Agreement.
WAIVER: By signing this Certificate, you will be agreeing to all of the
terms of the Option Agreement, including those not summarized in this
Certificate. You will waive your
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rights to options or stock which may otherwise have been promised to you. See
Section 7 of the attached Option Agreement.
WITHHOLDING: The Company may require you to make any arrangements necessary
to insure the proper withholding of any amount of tax, if any, required to be
withheld by the Company as a result of the exercise of the Option. See Section
10 of the attached Option Agreement.
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A G R E E M E N T
Accelerated Networks, Inc., a Delaware corporation, and Optionee each
hereby agrees to be bound by all of the terms and conditions of the Stock Option
Agreement (Non-Statutory Stock Option) which is attached hereto as Exhibit B and
incorporated herein by this reference as if set forth in full in this document.
DATED:
-------------------------------
ACCELERATED NETWORKS, INC.
By: Xxxxx Xxxxxx
------------------------------------
Its: Board Member
OPTIONEE
Name: /s/ Xxxx X. Xxxxx
----------------------------------
Xxxx X. Xxxxx
----------------------------------------
(Please print your name exactly as
you wish it to appear on any stock
certificates issued to you upon
exercise of the Option)
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EXHIBIT B
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "OPTION AGREEMENT") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "CERTIFICATE"), by and between Accelerated Networks, Inc., a Delaware
corporation (the "COMPANY"), and the employee of the Company named in the
Certificate ("OPTIONEE").
The Board of Directors of the Company (the "BOARD") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "COMMON STOCK"), upon
the terms and subject to the conditions set forth in this Option Agreement.
The Company and Optionee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the
"OPTION"), upon the terms and subject to the conditions set forth in this Option
Agreement, to purchase all or any portion of that number of shares of the Common
Stock (the "SHARES") set forth in the Certificate, at the Option exercise price
set forth in the Certificate (the "EXERCISE PRICE").
2. TERM OF OPTION.
The Option shall terminate and expire on the Option Expiration Date
set forth in the Certificate, unless sooner terminated as provided herein. In no
event shall the Option be exercisable after the expiration of five years from
the date it was granted.
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3. EXERCISE PERIOD.
(a) Subject to the provisions of Sections 3(b) and 5 of this Option
Agreement, the Option shall become exercisable (in whole or in part) upon and
after the dates set forth or referred to under the caption "Exercise Schedule"
in the Certificate. The installments shall be cumulative; i.e., the Option may
be exercised, as to any or all Shares covered by an installment, at any time or
times after the installment first becomes exercisable and until expiration or
termination of the Option.
(b) Notwithstanding anything to the contrary contained in this Option
Agreement, the Option may not be exercised, in whole or in part, unless and
until any then-applicable requirements of all federal, state and local laws and
regulatory agencies shall have been fully complied with to the satisfaction of
the Company and its counsel.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part.
The Option may be exercised, in whole or in part, only by delivery to the
Company of:
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares of
Common Stock then being purchased (the "PURCHASED SHARES");
(b) the Exercise Price for each Purchased Share shall be paid in full
upon exercise and shall be payable in cash in United States dollars (including
check, bank draft or money order). The Company will cooperate with any person
who participates in a cashless exercise program of a broker or other agent under
which all or part of the shares received upon exercise of the Option are sold
through the broker or other agent or under which the broker or other agent makes
a loan to such person. Notwithstanding the foregoing, the exercise of the Option
shall not be deemed to occur and no shares of Common Stock will be issued by the
Company upon exercise of the Option until the Company has received payment of
the Exercise Price in full. The date of exercise of an Option shall be
determined under procedures established by the Committee.
5. TERMINATION OF EMPLOYMENT.
(a) If Employee shall cease to be an employee of the Company, or any
direct or indirect subsidiary of the Company, under any of the circumstances
described in the Option Certificate under the caption "Exercise Schedule" then
the terms of the Option Certificate shall control. To the extent unexercised
pursuant to the Option Certificate, the Option shall terminate.
(b) If, by reason of death or disability (a "SPECIAL TERMINATING
EVENT"), Employee shall cease to be an employee the Company or any direct or
indirect subsidiary of
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the Company, then Employee, Employee's executors or administrators or any person
or persons acquiring the Option directly from Employee by bequest or
inheritance, shall have the right to exercise the Option (i) in the event of
Employee's disability, within twelve months following the date of such Special
Terminating Event and (ii) in the event of Employee's death, within eighteen
months following the date of such Special Terminating Event, but in each case of
(i) and (ii), on or prior to the Option Expiration Date. The Option may be
exercised following a Special Terminating Event only to the extent exercisable
at the date of the Special Terminating Event. To the extent unexercised at the
end of the period referred to above, the Option shall terminate.
(c) If Employee shall cease to be an employee of the Company, for any
reason other than as described in (a) or (b) above or for cause, Employee shall
have the right to exercise the Option at any time following such termination
until the earliest to occur of (x) one year following the date of such
termination and (y) the Option Expiration Date. The Option may be exercised
following such termination only to the extent exercisable as of the date of the
termination. To the extent unexercised at the end of the period referred to
above, the Option shall terminate.
(d) If Company terminates Employee for cause, the Option shall
terminate immediately.
(e) For purposes of this Option Agreement, "disability" shall mean
total and permanent disability as defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"). Employee shall not be considered
permanently disabled unless he furnishes proof of such disability in such form
and manner, and at such times, as the Committee may from time to time require.
6. ADJUSTMENTS UPON RECAPITALIZATION.
In the event of any change in the outstanding shares of the Common
Stock or other securities then subject to this option by reason of any stock
split, reverse stock split, stock dividend, recapitalization, merger,
consolidation, combination or exchange of shares or other similar corporate
change, or if the outstanding securities of the class then subject to this
Agreement are exchanged for or converted into cash, property or a different kind
of securities, or if cash, property or securities are distributed in respect of
such outstanding securities (other than a regular cash divided) then, unless the
terms of such transaction shall otherwise provide, such equitable adjustments
shall be made by the Board, in the Option (including, without limitation,
appropriate and proportionate adjustments to the number and type of shares or
other securities or cash or other property that may be acquired pursuant to
exercise of the Option); and any such adjustments made by the Board shall be
final, binding and conclusive for any and all purposes.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
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By signing this Option Agreement, Optionee acknowledges and agrees that
neither the Company nor any other person or entity is under any obligation to
sell or transfer to Optionee any option or equity security of the Company, other
than the shares of Common Stock subject to the Option and any other right or
option to purchase Common Stock which was previously granted in writing to
Optionee by the Committee (or the Board). By signing this Option Agreement,
Optionee specifically waives all rights which he or she may have had prior to
the date of this Option Agreement (other than any other right or option to
purchase Common Stock which was previously granted in writing to Optionee by the
Committee or the Board) to receive any option or equity security of the Company.
8. NO RIGHTS AS STOCKHOLDER.
Except as provided in Section 6 of this Option Agreement, Optionee
shall have no rights as a stockholder with respect to the Shares until the date
of the issuance to Optionee of a stock certificate or stock certificates
evidencing such Shares. Except as may be provided in Section 6 of this Option
Agreement, no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued.
9. MODIFICATION.
The Committee (or the Board) may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised); provided, that a
modification of the Option shall be effective only with the consent of the
Optionee.
10. WITHHOLDING.
The Company shall be entitled to require as a condition of delivery of
any Purchased Shares upon exercise of any Option that the Optionee agree to
remit, at the time of such delivery or at such later date as the Company may
determine, an amount sufficient to satisfy all federal, state and local
withholding tax requirements relating thereto, and Optionee agrees to take such
other action required by the Company to satisfy such withholding requirements.
11. CHARACTER OF OPTION.
The Option is not intended to qualify as an "incentive stock option"
as that term is defined in Section 422 of the Code.
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12. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to be
reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
13. If to the Company, to:
Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
14. If to Optionee, to the address set
forth in the records of the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid; or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may at
any time transfer and assign its rights and delegate its obligations under this
Option Agreement to any other person, corporation, firm or entity, including its
employees, directors and stockholders, with or without consideration.
(d) OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent and
distribution, and Options may be exercised during the lifetime of Optionee only
by Optionee or by his or her guardian or legal representative.
(e) MARKET STAND-OFF. In the event of an underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended, Optionee shall not
sell, make any short sale of, loan, hypothecate, pledge, grant any option for
the repurchase of, or otherwise dispose or transfer for value, or otherwise
agree to engage in any of the foregoing transactions with respect to any shares
of Common Stock without the prior written consent of the Company or its
underwriters, for such period of time from and after the effective date of such
registration statement as may
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be requested by the Company or such underwriters (the "MARKET STAND-OFF");
provided, however, that in no event shall such period exceed 180 days.
(f) SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and personal representatives.
(g) GOVERNING LAW. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE IN, AND TO BE PERFORMED SOLELY WITHIN, THAT STATE.
(h) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not constitute a
part of this Option Agreement for any other purpose.
The Signature Page to this Option Agreement consists of the last page
of the Certificate.
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Exhibit "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: Accelerated Networks, Inc.
The undersigned, the holder of the enclosed Stock Option Agreement
(Non-Statutory Stock Option), hereby irrevocably elects to exercise the purchase
rights represented by the Option and to purchase thereunder ______* shares of
Common Stock Accelerated Networks, Inc. (the "COMPANY"), and herewith encloses
payment of $__________ and/or _________ shares of the Company's Common Stock in
full payment of the purchase price of such shares being purchased.
Dated:
-------------------------------
------------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Option)
------------------------------------------
(Please Print Name)
------------------------------------------
(Address)
* Insert here the number of shares called for on the face of the Option
(or, in the case of a partial exercise, the number of shares being exercised),
in either case without making any adjustment for additional Common Stock of the
Company, other securities or property which, pursuant to the adjustment
provisions of the Option, may be deliverable upon exercise.
