Exhibit 10.6
INCENTIVE STOCK OPTION AGREEMENT
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THIS INCENTIVE STOCK OPTION AGREEMENT is made as of ____________ ___, 20__
between YDI WIRELESS, INC., a corporation organized under the laws of the State
of Delaware (hereinafter called the "Corporation"), and _____________________
(hereinafter referred to as the "Employee").
WHEREAS, the Employee is in the employ of the Corporation or one of its
affiliates and the Corporation considers it desirable and in its best interests
to encourage the Employee as an eligible employee under its 2004 Stock Plan (the
"Plan") to remain in such employ and to motivate the Employee to exert the
Employee's best efforts on behalf of the Corporation and its affiliates;
NOW, THEREFORE, it is agreed as follows:
1. Grant of Option. The Corporation hereby grants to the Employee as of
the date of this Agreement ("Date of Grant") the right, privilege and option to
purchase not more than ____________ shares (the "Grant Number") of the Common
Stock of the Corporation, par value $.01 per share, as constituted on the date
of this Agreement pursuant to the terms, provisions and conditions of the Plan
which is incorporated herein and made a part hereof by reference as if fully set
forth herein at length and subject to the terms, provisions and conditions set
forth below.
2. Option Price. The option price per share of Common Stock as constituted
on the date of this Agreement, as determined in accordance with the Plan, shall
be $________ per share.
3. Time of Exercise; Acceleration. This option will vest as to thirty-four
percent (34%) of the Grant Number on the first annual anniversary of the Date of
Grant and then as to eight and one-quarter percent (8.25%) of the Grant Number
on each quarterly anniversary of the Date of Grant (after the first annual
anniversary of the Date of Grant) until the option has vested in full (the day
on which any options are scheduled to vest under this Agreement is referred to
in this Agreement as a "Vesting Date"); provided, however, that upon the event
of (i) the completion of a merger or consolidation of the Corporation with any
other entity, (ii) the sale of substantially all of the Corporation's assets to
another entity, or (iii) the sale of more than 50% of the outstanding capital
stock of the Corporation to an unrelated person or group of persons acting
collectively in one or a series of transactions, fifty percent (50%) of the
unvested options that would have vested on each Vesting Date (rounded down to
the nearest whole number if necessary) will be immediately vested.
Notwithstanding the foregoing sentence, (a) the number of options that will vest
on each Vesting Date, if other than a whole number, will be rounded down to the
nearest whole number and (b) any fractional options resulting from the preceding
clause will vest on the ninth Vesting Date.
Only vested stock options may be exercised. This option may be exercised
in whole or in part as to shares which have vested for not in excess of the
difference between (i) the total number of shares then vested and (ii) the total
number of shares as to which the option has been
previously exercised. No partial exercise of this option within any year may be
for less than 100 shares (or the remaining shares purchasable under this option
if less than 100 shares).
4. Method of Exercise. This option shall be exercisable from time to time
as provided above by written notice in the form of Exhibit "A", signed by the
person entitled to exercise the option, setting forth in terms of shares of
Stock as constituted on the date of this Agreement, the number of shares as to
which this option is being exercised. Such notice shall be delivered to the
Corporation at its principal place of business and be accompanied by the
purchase price. Alternatively, the person entitled to exercise the option may
exercise the option and pay the purchase price by any other method that may be
authorized by the Corporation from time to time. The Corporation shall make
prompt delivery of the shares of Stock as to which the option is exercised
against payment of the purchase price; provided, however, that if any law or
regulation requires the Corporation to take any action with respect to the Stock
before the issuance thereof, then the date of delivery of the Stock shall be
extended for the period necessary to take such action.
5. Further Limitations on Exercise.
A. Termination of Employment.
(i) If Employee's employment with or service to the
Corporation terminates other than by reason of death or Disability, (a) no
further vesting of this option will occur subsequent to the date of termination,
and (b) this option will terminate on the date three months after the date of
termination or on the option's specified expiration date, if earlier. Nothing in
this Agreement will be deemed to give the Employee the right to continued
employment with the Corporation.
(ii) If Employee's employment or other service to the
Corporation is terminated due to the Employee's death or Disability, this option
may be exercised, up to that portion of the option which the Employee could have
exercised on the date of death or Disability, by the Employee, or in the case of
death, the Employee's estate, personal representative or any beneficiary who has
acquired the option by will or by the laws of descent and distribution, at any
time prior to the earlier of the specified expiration date of this option or one
year after the Employee's death or Disability.
B. Condition to Exercise. As a condition of the Corporation's
obligation to issue Stock upon exercise of this option, the Employee or other
person entitled to exercise this option, if requested by the Corporation, shall
concurrently with the exercise of this option execute an Agreement Not to
Compete with the Corporation (in such form as adopted by the Corporation from
time to time), which obligates the Employee to refrain from certain activities
(if the person exercising the option has not already executed such an
agreement).
C. Payment. The option price shall be paid as follows: (i) by check,
and/or (ii) to the extent the Stock is publicly traded, by delivery to the
Corporation by the Employee of Stock already owned by such Employee, properly
endorsed and having a fair market value equal to the purchase price (if
permitted by the Corporation) and/or (iii) in any other manner permitted
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by the Corporation from time to time. For purposes of this Section 5(C), the
market value of such stock to be delivered to the Corporation in payment of the
option price shall be determined in accordance with the Plan.
D. Non-Transferability. This option is not transferable by the
Employee, except by will or by laws of descent and distribution, and is
exercisable during the Employee's lifetime only by the Employee.
E. Adjustment. If a dividend is declared upon the Stock payable in
Stock, then the shares of Stock then subject to this option (and the number of
shares reserved for issuance) shall be increased proportionately without any
change in the aggregate purchase price. If the outstanding Stock is changed into
or exchanged for a different number or class of shares of stock of the
Corporation or of another corporation, whether through reorganization,
recapitalization, stock split-up, combination of shares, merger or
consolidation, then (i) there shall be substituted for each such share of Stock
then subject to this option (and for each share reserved for issuance) the
number and class of shares of Stock into which each outstanding share of Stock
is so changed or exchanged, all without any change in the aggregate purchase
price for the shares then subject to this option and (ii) the vesting schedule
set forth in Section 3 above shall also be adjusted proportionately to reflect
the impact of such reorganization, recapitalization, stock split-up, combination
of shares, merger or consolidation.
F. Withholding Taxes. Whenever under this Agreement Stock is to be
issued, the Corporation shall have the right to require the recipient to remit
to the Corporation an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to delivery of any certificate or
certificates representing the Stock.
6. Stock Ownership. An optionee shall be entitled to the privilege of
stock ownership only as to such shares of Stock as are issued upon exercise of
this option.
7. Requirements of Law. The granting of this option and issuance of shares
of Stock upon the exercise of this option shall be subject to compliance with
all of the applicable requirements of law with respect to the issuance and sale
of such shares.
8. Expiration Date. This option and all rights granted in this Agreement
shall, in all events, expire five (5) years from the Date of Grant.
9. Legend. The Employee hereby agrees that the stock certificates
delivered upon exercise of this option may bear a legend or legends in the form
designated by the Corporation to ensure compliance with legal or contractual
restrictions.
10. Definitions. Unless otherwise defined in this Agreement, the terms
used in this Agreement shall have the same meanings as in the Plan. The term
"Stock" shall mean shares of Common Stock of the Corporation as constituted on
the date of this Agreement and such other stock as shall be substituted therefor
or issued thereon as provided in Section 5(E) above or as shall be substituted
for or issued upon or in exchange for Stock issued pursuant to the options.
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11. Disposition of Stock. The Employee acknowledges that the "incentive
stock option" rules set forth in Section 422 of the Internal Revenue Code of
1986, as amended, will not be applicable to any Stock issued to the Employee
pursuant to this Agreement if such Stock is disposed of either within two (2)
years of the Date of Grant or within one (1) year of the issuance of such Stock
to the Employee. The Employee shall give the Corporation prompt notice of a
Disqualifying Disposition.
12. Notices. All notices under this Agreement shall be sufficient if in
writing and delivered in hand or mailed, registered or certified mail, postage
prepaid, and addressed to the Corporation at YDI WIRELESS, INC., 8000 Lee
Highway, Falls Church, VA 22042, Attn: Chief Financial Officer or to the
Employee at the address set forth under the Employee's signature below. Either
party may change the address to which notices shall be delivered by like notice
given at least ten (10) days before the effective date of such change of
address.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns, and the Employee, his
legal representatives, heirs, legatees and assigns.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument all as of the date and year first above written.
YDI WIRELESS, INC.
By:
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Title:
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EMPLOYEE
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Name:
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EXHIBIT A
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(date)
YDI WIRELESS, INC.
20 Industrial Drive East
South Deerfield, MA 01373
Ladies and Gentlemen:
I wish to exercise my option to purchase ____________ shares of common
stock, par value $.01 per share (the "Securities") at a price of $________ per
share pursuant to the Incentive Stock Option Agreement dated as of _____________
___, 20__ (the "Agreement") under the Corporation's 2004 Stock Plan.
Check one of the following boxes:
|_| I have enclosed a check for $_____________________ (the exercise amount).
|_| I am paying the exercise price by the following means which has been
approved by the Corporation:___________________________________________________
______________________________________________________________________________.
I understand that prior to exercising any options I must have signed an
Agreement Not to Compete with the Corporation (if requested by the Corporation)
in the form adopted by the Corporation from time to time.
I further agree that I will not make any sales or other transfers or
dispositions of the securities covered by this letter during the time period
following the closing of any public offering by the Corporation of its
securities requested by the underwriter or, in the absence of such request,
ninety (90) days.
Very truly yours,
By:
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Employee Social Security Number Employee Signature (on line above)
Employee Name (printed):________________
Address to which certificates are to be sent
Employee's Home Address: (complete ONLY if different than home address):
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