EXHIBIT 2
NEXTGEN COMMUNICATIONS CORPORATION
1998 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan (defined
below) shall have the same defined meanings in this Stock Option Agreement (this
"STOCK OPTION AGREEMENT"), which is executed this 27th day of December 2001, to
be effective as of October 3, 2000.
I. NOTICE OF STOCK OPTION GRANT
The undersigned Optionee has been granted an Option to purchase Common
Stock of Nextgen Communications Corporation (formerly U S Industrial Services,
Inc.) (the "COMPANY"), subject to the terms and conditions of the Company's 1998
Stock Option Plan (the "PLAN") and this Stock Option Agreement, as follows:
Optionee ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Date of Grant October 3, 2000
Vesting Commencement Date October 3, 2000
Exercise Price per Share $.65
Total Number of Shares Granted 250,000
Total Exercise Price $162,500
Type of Option: [X] Incentive Stock Option
[ ] Non-Qualified Stock Option
Term/Expiration Date: Tenth Anniversary of Date of ▇▇▇▇▇
Vesting Schedule: One-fifth (1/5th) of the Shares subject to the Option
shall become exercisable on the first anniversary of the Vesting Commencement
Date and an additional 1/5th of the Shares subject to the Option shall become
exercisable on each anniversary date of the Vesting Commencement Date until all
the Shares are exercisable, subject to Optionee's continuing to be a Service
Provider on such dates. If a Change of Control of the Company shall occur, the
vesting of the Shares shall be in accordance with the Plan.
Termination Period: The vested portion of this Option shall be
exercisable for 90 days after Optionee ceases to be a Service Provider. Upon
Optionee's death or disability, the vested portion of this Option may be
exercised for such longer period as provided in the Plan. In no event may
Optionee exercise this Option after the Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Option.
(a) The Administrator of the Plan hereby grants to the
Optionee named in the Notice of Stock Option Grant (the "NOTICE") in Section I.
above (the "OPTIONEE"), an option (the "OPTION") to purchase the number of
Shares set forth in the Notice, at the exercise price per Share set forth in the
Notice (the "EXERCISE PRICE"), and subject to the terms and conditions of the
Plan, which is incorporated herein by reference. In the event of a conflict
between the terms and conditions of the Plan and this
Stock Option Agreement,
the terms and conditions of the Plan shall prevail.
(b) If designated in the Notice of Stock Option Grant as an
Incentive Stock Option ("ISO"), this Option is intended to qualify as an
Incentive Stock Option as defined in Section 422 of the Code. Nevertheless, to
the extent that it exceeds the $100,000 rule of Code Section 422(d), this Option
shall be treated as a Non-Qualified Stock Option ("NSO").
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during
its term in accordance with the Vesting Schedule set out in the Notice of Stock
Option Grant and with the applicable provisions of the Plan and this
Stock
Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by
delivery of an exercise notice in the form attached as Exhibit A (the "EXERCISE
NOTICE") which shall state the election to exercise the Option, the number of
Shares with respect to which the Option is being exercised (the "EXERCISED
SHARES"), and such other representations and agreements as may be required by
the Company. The Exercise Notice shall be accompanied by payment of the
aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed
to be exercised upon receipt by the Company of such fully executed Exercise
Notice accompanied by the aggregate Exercise Price.
3. Optionee's Representations. In the event the Shares have not been
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
at the time this Option is exercised, the Optionee shall, if required by the
Company, concurrently with the exercise of all or any portion of this Option,
deliver to the Company his or her Investment Representation Statement in the
form attached hereto as Exhibit B.
4. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee
(a) cash or check;
(b) Shares surrendered to the Company in a Cashless Exercise;
or
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(c) surrender of other Shares that, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six months on the date of surrender, and (ii) have a Fair Market Value on
the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
5. Restrictions on Exercise. This Option may not be exercised until
such time as the stockholders of the Company have approved the Plan, or if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any Applicable
Law.
6. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
the Plan and this
Stock Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
7. Term of Option. This Option may be exercised only within the term
set out in the Notice of Stock Option Grant, and may be exercised during such
term only in accordance with the Plan and the terms of this
Stock Option
Agreement.
8. Entire Agreement; Governing Law. The Plan is incorporated herein by
reference. The Plan and this
Stock Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee. This agreement is governed by the internal substantive
laws but not the choice of law rules of the State of
Delaware.
9. No Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER IN ACCORDANCE WITH THE OPTIONEE'S
EMPLOYMENT AGREEMENT, IF ANY, OR OTHERWISE (NOT THROUGH THE ACT OF BEING HIRED,
BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS
OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH
OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS
A SERVICE PROVIDER AT ANY TIME IN ACCORDANCE WITH THE OPTIONEE'S EMPLOYMENT
AGREEMENT, IF ANY, OR OTHERWISE AT ANY TIME, WITH OR WITHOUT CAUSE.
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10. Optionee 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 Option subject to all of the terms and provisions thereof. Optionee
has reviewed the Plan and this Option in their entirety, has had an opportunity
to obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
"COMPANY" "OPTIONEE"
NEXTGEN COMMUNICATIONS
CORPORATION
By:
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Chief Financial Officer
Address:
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EXHIBIT A
2001 STOCK PLAN
EXERCISE NOTICE
Nextgen Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTN: Secretary
1. Exercise of Option. Effective as of today, _______________,
20___, the undersigned ("OPTIONEE") hereby elects to exercise Optionee's option
to purchase ________________ shares (the "SHARES") of the Common Stock of
Nextgen Communications Corporation (the "COMPANY") under and pursuant to the
1998 Stock Option Plan (the "PLAN") and the
Stock Option Agreement dated
December 27, 2001, to be effective as of October 3, 2000 (the "STOCK OPTION
AGREEMENT").
2. Delivery of Payment. Optionee herewith delivers to the
Company the full purchase price of the Shares, as set forth in the Stock Option
Agreement.
3. Representations of Optionee. Optionee acknowledges that
Optionee has received, read and understood the Plan and the Stock Option
Agreement and agrees to abide by and be bound by their terms and conditions.
4. Rights as Stockholder. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a stockholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares shall be issued to
the Optionee as soon as practicable after the Option is exercised. No adjustment
shall be made for a dividend or other right for which the record date is prior
to the date of issuance except as provided in Section 13 of the Plan.
5. Tax Consultation. Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's purchase or
disposition of the Shares. Optionee represents that Optionee has consulted with
any tax consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
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6. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Optionee understands and agrees that the
Company shall cause the legends set forth below or legends substantially
equivalent thereto, to be placed upon any certificate(s) evidencing ownership of
the Shares together with any other legends that may be required by the Company
or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN
THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices. Optionee agrees that, in
order to ensure compliance with the restrictions referred to herein, the Company
may issue appropriate "stop transfer" instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be
required (i) to transfer on its books any Shares that have been sold or
otherwise transferred in violation of any of the provisions of this Agreement or
(ii) to treat as owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such Shares shall have
been so transferred.
7. Successors and Assigns. The Company may assign any of its
rights under this Agreement to single or multiple assignees, and this Agreement
shall inure to the benefit of the successors and assigns of the Company. Subject
to the restrictions on transfer herein set forth, this Agreement shall be
binding upon Optionee and his or her heirs, executors, administrators,
successors and assigns.
8. Interpretation. Any dispute regarding the interpretation of
this Agreement shall be submitted by Optionee or by the Company forthwith to the
Administrator, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
all parties.
9. Governing Law; Severability. This Agreement is governed by
the internal substantive laws, but not the choice of law rules, of
Delaware.
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10. Entire Agreement. The Plan and Stock Option Agreement are
incorporated herein by reference. This Agreement, the Plan, the Stock Option
Agreement and the Investment Representation Statement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee.
Submitted by: Accepted by:
NEXTGEN COMMUNICATIONS CORPORATION
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By:
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Name:
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Title:
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
COMPANY:
Nextgen Communications Corporation
SECURITY: Common Stock
AMOUNT: $__________________________
DATE: ___________________________
In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
1. Optionee is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Securities. Optionee
is acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "SECURITIES
ACT").
2. Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Optionee further understands that the Securities must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Optionee further
acknowledges and understands that the Company is under no obligation to register
the Securities. Optionee understands that the certificate evidencing the
Securities will be imprinted with a legend that prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel satisfactory to the Company and any other legend required
under applicable state securities laws.
3. Optionee is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions. The Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than one year after the later of the date the Securities were
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sold by the Company or the date the Securities were sold by an affiliate of the
Company, within the meaning of Rule 144, and the resale must take place in a
manner described in (1) below; and, in the case of acquisition of the Securities
by an affiliate, or by a non-affiliate who subsequently holds the Securities
less than two years, the satisfaction of the following conditions: (1) the
resale is made through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934), (2) the availability of certain public
information about the Company, (3) the amount of Securities being sold during
any three-month period not exceeding the limitations specified in Rule 144(e),
and (4) the timely filing of a Form 144.
4. Optionee further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act or some other registration exemption will be required; and that
the Staff of the Securities and Exchange Commission has expressed its opinion
that persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rules 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
Optionee understands that no assurances can be given that any such other
registration exemption will be available in such event.
"OPTIONEE"
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Date:
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