Exhibit (a)(12)
Hong Kong Stock Option Agreement
Redback Networks Inc.
1999 Stock Incentive Plan Nonstatutory Stock Option Agreement
Tax Treatment This option is a nonqualified option under Section 422 of the
United States Internal Revenue Service Code.
Vesting This option becomes exercisable in installments, as shown in the
Notice of Stock Option Grant.
In addition, this option becomes exercisable in full if your
service as an employee, consultant or director of the Company or
a subsidiary of the Company terminates because of death. If your
service as an employee, consultant or director of the Company (or
a subsidiary of the Company) terminates because of total and
permanent disability, then the exercisable portion of this option
will be determined by adding 12 months to your actual period of
service.
No additional shares become exercisable after your service as an
employee, consultant or director of the Company or a subsidiary
of the Company has terminated for any other reason.
Term This option expires in any event at the close of business at
Company headquarters on the day before the 5th anniversary of the
Date of Grant, as shown in the Notice of Stock Option Grant. (It
will expire earlier if your service terminates, as described
below.)
Regular If your service as an employee, consultant or director of
Termination the Company or a subsidiary of the Company terminates for any
reason except death or total and permanent disability, then this
option will expire at the close of business at Company
headquarters on the date three months after your termination
date. The Company determines when your service terminates for
this purpose.
Death If you die as an employee, consultant or director of the Company
or a subsidiary of the Company, then this option will expire at
the close of business at Company headquarters on the date 12
months after the date of death.
Disability If your service as an employee, consultant or director of the
Company or a subsidiary of the Company terminates because of your
total and permanent disability, then this option will expire at
the close of business at Company headquarters on the date six
months after your termination date.
For all purposes under this Agreement, "total and permanent
disability" means that you are unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted, or can be expected to
last, for a continuous period of not less than one year.
Leaves of For purposes of this option, your service does not terminate when
Absence you go on a military leave, a sick leave or another bona fide
leave of absence, if the leave was approved by the Company in
writing and if continued crediting of service is required by the
terms of the leave or by applicable law. But your service
terminates when the approved leave ends, unless you immediately
return to active work.
Restrictions The Company will not permit you to exercise this option if the
on Exercise issuance of shares at that time would violate any law or
regulation.
Notice of When you wish to exercise this option, you must notify the
Exercise Company by filing the proper "Notice of Exercise" form at the
address given on the form. Your notice must specify how many
shares you wish to purchase. Your notice must also specify how
your shares should be registered (in your name only or in your
and your spouse's names as community property or as joint tenants
with right of survivorship). The notice will be effective when it
is received by the Company.
If someone else wants to exercise this option after your death,
that person must prove to the Company's satisfaction that he or
she is entitled to do so.
Form of When you submit your notice of exercise, you must include payment
Payment of the option exercise price for the shares you are purchasing.
Payment may be made in one (or a combination of two or more) of
the following forms:
. Your personal check, a cashier's check or a money order.
. Irrevocable directions to a securities broker approved by
the Company to sell all or part of your option shares and to
deliver to the Company from the sale proceeds an amount
sufficient to pay the option exercise price and any
withholding taxes. (The balance of the sale proceeds, if
any, will be delivered to you.) The directions must be given
by signing a special "Notice of Exercise" form provided by
the Company.
. Irrevocable directions to a securities broker or lender
approved by the Company to pledge option shares as security
for a loan and to deliver to the Company from the loan
proceeds an amount sufficient to pay the option exercise
price and any withholding taxes. The directions must be
given by signing a special "Notice of Exercise" form
provided by the Company.
Responsibility You hereby acknowledge and agree that the ultimate liability
for Taxes for any and all tax, social insurance and payroll tax withholding
("Tax-Related Items") is and remains your responsibility and
liability and that the Company, its subsidiaries and affiliates
and/or your employer: (a) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection
with any aspect of the option grant, including the grant, vesting
or exercise of the option and the subsequent sale of shares
acquired pursuant to such exercise; and (b) do not commit to
structure the terms of the grant or any aspect of the option to
reduce or eliminate your liability for Tax-Related Items.
You agree that prior to exercise of the option, you shall pay or
make adequate arrangements satisfactory to the Company and/or
your employer to satisfy all withholding obligations of the
Company and/or your employer, if any. In this regard, you
authorize the Company and/or your employer to withhold all
applicable Tax-Related Items legally payable by you from your
wages or other cash compensation paid to you by the Company
and/or your employer or from proceeds of sale. Alternatively, or
in addition, if permissible under local law, you agree and
acknowledge that the Company may sell or arrange for the sale of
shares that you are due to acquire to meet the minimum
withholding obligation for Tax-Related Items. Any estimated
withholding which is not required in satisfaction of any Tax-
Related Items will be repaid to you by the Company or your
employer. Finally, you agree that you shall pay to the Company or
your employer any amount of any Tax-Related Items that the
Company or your employer may be required to withhold as a result
of your participation in the Plan or your purchase of shares that
cannot be satisfied by the means previously described.
Restrictions By signing this Agreement, you agree not to sell any option
on Resale shares at a time when applicable laws, Company policies or an
agreement between the Company and its underwriters prohibit a
sale. This restriction will apply as long as you are an employee,
consultant or director of the Company or a subsidiary of the
Company. You may not sell any of your option shares within six
(6) months after the Date of Xxxxx.
Transfer of Prior to your death, only you may exercise this option. You
Option You cannot transfer or assign this option. For instance, you may
not sell this option or use it as security for a loan. If you
attempt to do any of these things, this option will immediately
become invalid. You may, however, dispose of this option in your
will or a beneficiary designation.
Regardless of any marital property settlement agreement, the
Company is not obligated to honor a notice of exercise from your
former spouse, nor is the Company obligated to recognize your
former spouse's interest in your option in any other way.
Retention Your option or this Agreement does not give you the right to be
Rights retained by the Company or a subsidiary or affiliate of the
Company in any capacity. The Company and its subsidiaries and
affiliates reserve the right to terminate your service at any
time, with or without cause.
Nature In accepting the grant, you acknowledge that: (i) the Plan is
of Grant discretionary in nature and may be suspended or terminated by the
Company at any time; (ii) the grant of the option is voluntary
and occasional and does not create any contractual or other right
to receive future grants of options, or benefits in lieu of
options even if options have been granted repeatedly in the past;
(iii) all decisions with respect to any such future grants will
be at the sole discretion of the Company; (iv) your participation
in the Plan shall not create a right to further employment with
your employer and shall not interfere with the ability of your
employer to terminate your employment relationship at any time
with or without cause; (v) your participation in the Plan is
voluntary; (vi) the value of the option is an extraordinary item
which is outside the scope of your employment contract, if any;
(vii) the option is not part of normal or expected compensation
or salary for any purposes, including, but not limited to,
calculating any severance, resignation, redundancy, end of
service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments; (viii) in the event of
involuntary termination of your employment, your right to receive
options and vest in options under the Plan, if any, will
terminate effective as of the date that you are no longer
actively employed regardless of any reasonable notice period
mandated under local law; furthermore, in the event of
involuntary termination of employment, your right to exercise the
option after termination of employment, if any, will be measured
by the date of termination of your active employment and will not
be extended by any reasonable notice period mandated under local
law; (ix) the option has been granted to you in your status as an
employee of your employer, and, in the event that your employer
is not the Company, the option grant can in no event be
understood or interpreted to mean that the Company is your
employer or that you have an employment relationship with the
Company; (x) the future value of the underlying shares is unknown
and cannot be predicted with certainty; (xi) if the underlying
shares do not increase in value, the option will have no value;
and (xii) no claim or entitlement to compensation or damages
arises from termination of the option or diminution in value of
the option or shares purchased through exercise of the option and
you irrevocably release the Company and your employer from any
such claim that may arise.
Stockholder You, or your estate or heirs, have no rights as a stockholder of
Rights the Company until you have exercised this option by giving the
required notice to the Company and paying the exercise price. No
adjustments are made for dividends or other rights if the
applicable record date occurs before you exercise this option,
except as described in the Plan.
Adjustments In the event of a stock split, a stock dividend or a similar
change in Company stock, the number of shares covered by this
option and the exercise price per share may be adjusted pursuant
to the Plan.
Data Privacy You hereby explicitly and unambiguously consent to the
collection, use and transfer, in electronic or other form, of
your personal data as described in this document by and among, as
applicable, your employer and the Company and its subsidiaries
and affiliates for the exclusive purpose of implementing,
administering and managing your participation in the Plan.
You understand that your employer and the Company and its
subsidiaries and affiliates hold certain personal information
about you, including, but not limited to, your name, home address
and telephone number, date of birth, social insurance number or
other identification number,
salary, nationality, job title, any shares of stock or
directorships held in the Company, details of all options or any
other entitlement to shares of stock awarded, canceled,
exercised, vested, unvested or outstanding in your favor, for the
purpose of implementing, administering and managing the Plan
("Data"). You understand that Data may be transferred to any
third parties assisting in the implementation, administration and
management of the Plan, that these recipients may be located in
your country, or elsewhere, and that the recipient's country may
have different data privacy laws and protections than your
country. You authorize the recipients to receive, possess, use,
retain and transfer the Data, in electronic or other form, for
the purposes of implementing, administering and managing your
participation in the Plan, including any requisite transfer of
such Data as may be required to a broker or other third party
with whom you may elect to deposit any shares of stock acquired
upon exercise of the option. You understand that Data will be
held only as long as is necessary to implement, administer and
manage your participation in the Plan. You understand that you
may, at any time, view Data, request additional information about
the storage and processing of Data, require any necessary
amendments to Data or withdraw the consents herein by contacting
in writing your local human resources representative. You
understand that withdrawal of consent may affect your ability to
exercise or realize benefits from the option.
Applicable This Agreement will be interpreted and enforced under the laws
Law of the State of Delaware (without regard to their choice-of-law
provisions).
Severability The provisions of this Agreement are severable and if any one or
more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions
shall nevertheless be binding and enforceable.
The Plan and The text of the Plan is incorporated in this Agreement by
Other reference.
Agreements This Agreement and the Plan constitute the entire understanding
between you and the Company regarding this option. Any prior
agreements, commitments or negotiations concerning this option
are superseded. This Agreement may be amended only by another
written agreement, signed by both parties.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE TERMS AND
CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
