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EXHIBIT 10.9
AGREEMENT AND GENERAL RELEASE
CONSULT WITH A LAWYER BEFORE SIGNING THIS AGREEMENT AND RELEASE. BY SIGNING THIS
AGREEMENT, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇, understand and, of my own free will, enter into this AGREEMENT
AND GENERAL RELEASE ("AGREEMENT") for the benefit of Unisphere Solutions, Inc.
(the "COMPANY") and in consideration of the payments and benefits described
herein, agree as follows:
1. My employment with the COMPANY will be terminated on January 31, 2000.
I agree to resign from any corporate office, directorship or official
position which I hold with the COMPANY or any affiliate or subsidiary
of the COMPANY effective January 31, 2000.
2. I will be paid $36,666 a month for 12 months beginning on February 1,
2000, less applicable federal, state, and local withholding and FICA
taxes. This payment is in lieu of any separation or severance benefit I
may otherwise be eligible to receive from the COMPANY. Upon this
Agreement becoming effective pursuant to Paragraph 19 hereof, I will
also be paid - $24,338.21 by the COMPANY for reimbursement of business
expenses incurred by me prior to January 31, 2000 and for any remaining
expense reimbursement due me for the rental of my apartment in Boston.
I acknowledge that the payment to me of 24,338.21 fully satisfies any
obligation the Company may have to reimburse me for any and all
business related expenses and for any remaining apartment rental
expenses.
3. Through January 31, 2001, I will be able to continue coverage under the
COMPANY's group health plans, which I was receiving at the time of my
termination of employment from the COMPANY at the same cost to me as
that paid by active executive-level employees. The number of months of
the extended group health coverage described in this Paragraph 3 shall
be deemed to be part of any continuation of coverage as may be mandated
by federal or state law, including such coverage that may be required
under the Consolidated Omnibus Reconciliation Act of 1985 and the
regulations thereunder.
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4. Upon this Agreement becoming effective pursuant to Paragraph 19 hereof,
I will be paid a lump sum amount of $183,330 as an annual incentive
bonus, for the period of October 1, 1999 through the termination of my
employment with the COMPANY, less applicable federal, state, and local
withholding and FICA taxes. This payment is in lieu of any annual
incentive bonus payments I may otherwise be eligible to receive from
the Company,
5. In consideration of my acting as a consultant for the Company for an
initial six month period beginning February 1, 2000, under terms and
conditions set forth in the Consulting Agreement attached hereto as
Attachment A, I will be granted a nonstatutory option award under the
COMPANY's 1999 Stock Incentive Plan to purchase 140,000 shares of the
Company's common stock, which will completely vest on April 1, 2000, at
the exercise price of $5.00 per share, subject to any applicable
adjustment to the exercise price that may be made for options granted
effective April 1, 1999 and subject to the terms and conditions that
are set forth in the Option Award Agreement attached hereto as
Attachment B. I acknowledge that this new Option Award Agreement will
completely replace and supersede my original Option Award Agreement
which had been made effective April 1, 1999, and I agree to return such
original option Award Agreement to the COMPANY when I sign this
AGREEMENT.
6. I understand that, except as provided in Paragraphs 2, 3, 4, and 5 of
this AGREEMENT, after January 31, 2000, I will have no further rights
to any other compensation or benefits from the COMPANY or any of its
affiliates, including, but not limited to, any rights for payment under
any salary, bonus, compensation, milestone, retention or stock option
plans of the COMPANY or its affiliates, or vacation, severance,
pension, medical, life or other insurance, or any rights for payment
under the terms of my Employment Agreement with the COMPANY dated April
1, 1999 ("Employment Agreement").
7. I understand the COMPANY will not be required to provide the payment
and benefits set forth in Paragraphs 2, 3, 4 and 5 of this AGREEMENT
unless and until I sign this AGREEMENT and this AGREEMENT becomes
effective pursuant to Paragraph 19 hereof.
8. I understand that this AGREEMENT does not constitute an admission by
the COMPANY of any (a) violation of any
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statute, law or regulation; (b) breach of contract, actual or implied;
or (c) commission of any tort.
9. On January 31, 2000, I will promptly return to the COMPANY all property
of the COMPANY or of any affiliate or subsidiary of the COMPANY or of
Siemens AG which I know is in my possession or custody or under my
control. I further agree that I shall not copy or cause to be copied,
print out or cause to be printed out any software, programs, documents
or other materials originating with or belonging to the COMPANY or any
affiliate or subsidiary of the COMPANY or of Siemens AG.
10. In consideration for the payment and benefits set forth in Paragraphs
2, 3, 4, and 5, upon reasonable notice, I will make myself reasonably
available to the COMPANY to assist the COMPANY regarding any current or
future litigation of matters or claims of which I may have factual
knowledge.
11. In consideration for the payment and benefits set forth in Paragraphs
2, 3, 4, and 5 of this AGREEMENT, I do, on behalf of myself, my legal
representatives and assigns, agree and promise not to ▇▇▇ and to
forever release the COMPANY, its affiliates, parents, subsidiaries, and
divisions, Siemens AG and their respective predecessors, successors and
assigns and their respective directors, representatives, agents,
employees, officers and shareholders (the "Releasees") from all claims,
actions and charges of every kind, nature and description, whenever
they arose, which may by law be waived including, but not limited to,
claims related to my employment or the cessation of my employment as
well as any application for re-employment that has been made prior to
this date with the COMPANY, and any claim under my Employment
Agreement. This release includes but is not limited to any claim,
charge or action arising under any federal, state or local
discrimination statute, which include, but are not limited to Title VII
of the Civil Rights Act of 1964 and 1991, The Age Discrimination in
Employment Act, the Rehabilitation Act of 1973, and the Older Workers
Benefit Protection Act. This release also includes any other federal,
state, county, city or local law, statute, ordinance or regulation
including, but not limited to those laws relating to discrimination on
the basis of age, sex, race, national origin, religion, or payment of
wages, or under any other theory of law or contract, including but not
limited to fraud, wrongful termination or intentional infliction of
emotional or mental distress, libel or slander. I intend
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to waive and release any rights I may have under these and other laws,
but I do not intend to nor am I waiving any rights or claims that may
arise after the date I sign this AGREEMENT.
12. I understand and acknowledge that the payment and benefits set forth
under Paragraphs 2, 3, 4 and 5 of this AGREEMENT completely satisfy any
obligations which the COMPANY may have towards me under the terms of my
Employment Agreement.
13. I acknowledge and agree that nothing in this AGREEMENT shall be deemed
to reduce in any way the obligations I have under the Non-Competition
and Non-Solicitation Agreement (which I acknowledge remains in effect
for two years following my termination of employment with the COMPANY)
and the Employee Patent and Secrecy Agreement, both of which were
executed in conjunction with my Employment Agreement, or under any
other patent and secrecy or confidentiality agreements which apply to
me.
14. I agree to strictly maintain the confidentiality of the terms of this
AGREEMENT and shall not disclose any information relating thereto to
any individual other than my immediate family members, counsel and tax
advisor. I agree that I will not have any discussions with any third
parties regarding my resignation from the COMPANY or the contents of
this AGREEMENT except with respect to bona fide job searching
activities. I will refer all questions from the press regarding my
resignation from the COMPANY or the contents of this AGREEMENT to the
COMPANY. To the extent I make any statements to the press about my
resignation they will be consistent with the press release issued by
the COMPANY, which I acknowledge I have had a chance to review before
it was issued.
15. This AGREEMENT shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without regard to
principles of conflicts of law.
16. The terms and provisions of this AGREEMENT are severable. If one or
more provisions or terms of this AGREEMENT shall be ruled
unenforceable, the COMPANY may elect to enforce the remainder of this
AGREEMENT or cancel it.
17. I understand that this AGREEMENT may not affect the rights and
responsibilities of the Equal Employment Opportunity Commission
("Commission") to enforce the Age Discrimination
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in Employment Act ("ADEA") or be used to justify interfering with the
protected right of an employee to file a charge under the ADEA or
participate in an investigation or proceeding conducted by the
Commission under the ADEA.
18. I was given a copy of this AGREEMENT on January 28, 2000. I have had an
opportunity to consult an attorney before signing it and was given a
period of at least twenty-one (21) days or until February 18, 2000 to
consider this AGREEMENT. I acknowledge that in signing this AGREEMENT I
have relied only on the promises written in this AGREEMENT and in my
Employment Agreement and not on any other promise made by the COMPANY,
Siemens AG, or any affiliate or subsidiary of the COMPANY.
19. I have seven (7) days to revoke this AGREEMENT after I sign it. This
AGREEMENT will not become effective or enforceable until ten (10) days
after the COMPANY has received my signed copy of this AGREEMENT.
20. This AGREEMENT may not be modified or changed orally.
21. Any and all disputes, complaints, controversies, claims and grievances
(excluding those specifically excepted herein) arising under, out of,
in connection with, or in any manner related to this AGREEMENT or the
relation of the parties hereunder shall be submitted to final and
binding arbitration to be conducted by the American Arbitration
Association in accordance with its Rules applicable to these types of
disputes, complaints, claims or grievances, by a neutral and impartial
arbitrator acceptable to me and the COMPANY. If such an arbitrator has
not been selected by me and the COMPANY within 60 days after AAA first
provides a list of eligible arbitrators, or within thirty days after
the occurrence of a vacancy, a neutral and impartial arbitrator shall
be selected and appointed by the American Arbitration Association, in
accordance with its Rules. Unless otherwise required under applicable
law, the arbitration proceedings shall be conducted in the city where
the principal place of business of the COMPANY is situated at the date
of this AGREEMENT or a city mutually agreed to by the parties, and the
procedural rules of the place of arbitration shall apply. Arbitration
proceedings hereunder may be commenced by written notice from either
party hereto to the other party. Such proceedings and evidence shall be
confidential. The arbitrator shall have the power and the authority to
make such decisions and awards as he shall deem appropriate, including
granting compensatory damages and costs to the
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prevailing party (including fees of the arbitrator, but excluding
punitive, exemplary, consequential or special damages, and attorneys'
fees), and the granting or issuance of such mandatory directions,
prohibitions, orders, restraints and other injunctions (other than any
of the foregoing that would reestablish the employment relationship
formerly existing between the COMPANY and myself) that he may deem
necessary or advisable directed to or against any of the parties,
including a direction or order requiring specific performance of any
covenant, agreement or provision of this AGREEMENT as a result of a
breach or threatened breach thereof. The cost of such arbitration shall
be borne equally by the parties except that each party shall bear its
own cost of attorneys' fees and expenses. Any decision and award of the
arbitrator shall be final, binding and conclusive upon all of the
parties hereto and said decision and award may be entered as a final
judgment in any court of competent jurisdiction. It is expressly agreed
that arbitration as provided herein shall be the exclusive means for
determination of all matters as above provided and neither of the
parties hereto shall institute any action or proceeding in any court of
law or equity, state or federal, other than respecting enforcement of
the arbitrator's award hereunder. The foregoing sentence shall be a
bona fide defense in any action or proceeding instituted contrary to
this AGREEMENT. Notwithstanding the foregoing, nothing contained herein
shall prevent or restrain in any manner the COMPANY from instituting an
action or claim in court, or such other forum as may be appropriate to
enforce the terms of any employee patent and secrecy agreement, (or
similar agreement relating to the COMPANY's confidential or proprietary
business information or trade secrets) to protect the COMPANY's patent,
copyright, trademark, trade name or trade dress rights, to redress
claims or product disparagement or trade libel, or to protect the
COMPANY's reasonable business expectations or relations with third
parties, or to enforce the terms of any non-competition agreement. To
the extent this paragraph sets forth different procedures, or remedies,
or provides the arbitrator different powers than are set forth in the
Rules of the American Arbitration Association, the terms of this
paragraph shall take precedence.
22. All notices under this AGREEMENT shall be in writing and mailed via the
addresses to the attention of E. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary of Unisphere
Solutions, Inc., at 200
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▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to ▇▇▇▇▇▇ ▇▇▇▇▇▇ at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
I have read this AGREEMENT, and I understand all of its terms. I enter into and
sign the AGREEMENT knowingly and voluntarily with full knowledge of what it
means.
Unisphere Solutions Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇
BY: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- ---------------------
NAME: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: Secretary
Dated: January 27, 2000 Dated: January 28, 2000
State OF )
:ss
COUNTY OF )
On this 28th day of January, 2000 before me personally came ▇▇▇▇▇▇ ▇▇▇▇▇▇ to me
known and known to be the individual described in and who executed the foregoing
AGREEMENT AND GENERAL RELEASE and duly acknowledged to me that he executed the
same.
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- Notary Public, State of New York
Notary Public No. 02TU5009681
Qualified in Westchester County
Commission Expires March 15, 2001]
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ATTACHMENT A
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") made and entered into this 1st day of
February, 2000, by and between Unisphere Solutions Inc., a Delaware corporation
with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇, residing at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Consultant").
Whereas the Company and the Consultant mutually wish to enter
into a Consulting Agreement, they do mutually agree as follows:
1. SERVICES.
The Consultant shall provide general advisory services to the
Company and its subsidiaries as may be requested from time to time by the
Company during the term of this Agreement, subject, however, to the Consultant
approving and consenting to the scope and timeframe of such services, which
approval and consent shall not be unreasonably withheld by the Consultant,
2. TERM.
This Agreement shall commence on February 1, 2000 and shall
continue until August 1, 2000. The term of this Agreement shall be renewable for
successive six-month terms upon the mutual written consent of both parties.
Either party can terminate this Consulting Agreement upon at least 20 days prior
written notice to the other party if there is a material breach of the terms of
the Consulting Agreement or of the General Agreement and Release between the
Company and the Consultant dated January 28, 2000 and the other party is given
at least 20 days from the date of the notice to cure such breach.
3. FEE.
As consideration for the Consultant's providing consulting
services to the Company under this Agreement, Consultant shall be granted a
nonstatutory option award by the Company under the Company's 1999 Stock
Incentive Plan to purchase 140,000 shares of the Company's common stock
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which will completely vest on April 1, 2000, at an exercise price of $5.00 per
share, and subject to the terms and conditions of the attached Option Award
Agreement.
4. REIMBURSEMENT.
The Company will reimburse the Consultant for all reasonable
out-of-pocket expenses incurred in rendering the consulting services requested
by the Company under this Agreement, such as travel, telephone and lodging,
which have been approved in advance by the Company in accordance with the
Company's policies.
5. CONFIDENTIALITY.
Any records, documents, business plans, data, drawings, equipment
or other property produced, prepared or furnished to the Consultant in
connection with his providing consulting services to the Company or its
subsidiaries under this Agreement, shall be and remain the property of the
Company. Such property shall be used by the Consultant exclusively in connection
with this Agreement, shall be properly maintained by the Consultant and returned
to the Company by the Consultant at the termination of this Agreement, or
earlier if the Company shall so request. Consultant agrees that the Company
shall have sole ownership and title to and all rights and interests in all
documents, memoranda or other work products prepared, procured, produced or
worked on by the Consultant in the course of providing services to the Company
under this Agreement (collectively "Work Product"). Further, the Consultant's
Work Product and any data, technical information or other above-mentioned
property of the Company or its subsidiaries shall be held in confidence by the
Consultant and shall not be reproduced or disclosed to others without the
Company's prior written consent, except such information which:
(i) is already known to the Consultant through sources
other than his employment with the Company and which
the Consultant had in his possession in writing or
physical embodiment prior to the disclosure; or
(ii) is lawfully received by the Consultant in the normal
course of business without
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obligation of confidentiality from a third party; or
(iii) is approved for release or publication by written
authorization from the Company; or
(iv) is in the public domain other than as a result of a
wrongful act of the Consultant.
6. RELATIONSHIPS OF THE PARTIES.
(a) REPRESENTATION. Except as set forth in Section 1 of this
Agreement, in no event shall the services rendered by the Consultant under this
Agreement be construed as permitting representation of the Company by the
Consultant. Consultant shall have no power to bind the Company, its subsidiaries
or affiliates in any contract or agreement, whether written or oral, with any
third party or to represent that he has such power without the express written
consent of the Company.
(b) INDEPENDENT CONTRACTOR. Consultant is an independent
contractor and is not an employee, agent, partner, officer or director of the
Company or its subsidiaries for any purpose whatsoever. Consultant acknowledges
that during the term of this Agreement that he is not entitled to coverage under
any employee benefit plan of the Company or its affiliates, except for health
care coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985,
and that he is not entitled to coverage under any Worker's Compensation Act.
Consultant shall make any required filings with the
local, state, and federal taxing authorities, including income tax and social
security tax payments arising out of this Agreement.
7. OTHER AGREEMENTS BETWEEN THE PARTIES.
Consultant acknowledges and agrees that nothing in this Agreement
shall be deemed to reduce in any way the obligations the Consultant has under
the Agreement and General Release between the Company and the Consultant dated
January 28, 2000, the option Award Agreement dated January 28, 2000, the
Non-Competition and Non-Solicitation Agreement (which Consultant acknowledges
remains in effect
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until February 1, 2002) and the Employee Patent and Secrecy Agreement, both of
which were executed in conjunction with the Consultant's Employment Agreement
with the Company dated April 1, 1999, or under any other patent and secrecy or
confidentiality agreements that apply to the Consultant.
8. DISPUTES.
Any and all disputes, complaints, controversies, claims and
grievances arising under, out of, in connection with, or in any matter related
to this Agreement or the relation of the parties hereunder shall be submitted to
final and binding arbitration to be conducted by the American Arbitration
Association in accordance with its Rules applicable to these types of disputes,
complaints, controversies, claims and grievances by a neutral and impartial
arbitrator acceptable to the Consultant and the Company. If such an arbitrator
has not been selected by the Consultant and the Company within 60 days after AAA
first provides a list of eligible arbitrators, or within thirty days after the
occurrence of a vacancy, a neutral and impartial arbitrator shall be selected
and appointed by the American Arbitration Association in accordance with its
Rules. Unless otherwise required under applicable law, the arbitration
proceedings shall be conducted in the city where the principal place of business
of the Company is situated at the date of this Agreement or a city mutually
agreed to by the parties, and the procedural rules of the place of arbitration
shall apply. Arbitration proceedings hereunder may be commenced by written
notice from either party hereto to the other party. Such proceedings and
evidence shall be confidential. The arbitrator shall have the power and the
authority to make such decisions and awards as he shall deem appropriate,
including granting compensatory damages and costs to the prevailing party
(including fees of the arbitrator, but excluding punitive, exemplary,
consequential or special damages, and attorneys fees), and the granting or
issuance of such mandatory directions, prohibitions, orders, restraints and
other injunctions (other than any of the foregoing that would reestablish the
employment relationship formerly existing between the Consultant and the
Company) that he may deem necessary or advisable directed to or against any of
the parties, including a direction or order requiring specific performance of
any covenant, agreement or provision of this Agreement as a result of a breach
or threatened breach thereof. The cost of such arbitration shall be borne
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equally by the parties except that each party shall bear its own cost of
attorneys fees and expenses. Any decision and award of the arbitrator shall be
final, binding and conclusive upon all of the parties hereto and said decision
and award may be entered as a final judgment in any court of competent
jurisdiction. It is expressly agreed that arbitration as provided herein shall
be the exclusive means for determination of all matters as above provided and
neither of the parties hereto shall institute any action or proceeding in any
court of law or equity, state or federal, other than respecting enforcement of
the arbitrator's award hereunder. The foregoing sentence shall be a bona fide
defense in any action or proceeding instituted contrary to this AGREEMENT.
Notwithstanding the foregoing, nothing contained herein shall prevent or
restrain in any manner the COMPANY from instituting an action or claim in any
court, or such other forum as may be appropriate to enforce the terms of any
employee patent and secrecy agreement, (or similar agreement relating to the
COMPANY's confidential or proprietary business information or trade secrets) to
protect the COMPANY's proprietary or confidential business information or trade
secrets, to enforce or protect the COMPANY's patent, copyright, trademark, trade
name or trade dress rights, to redress claims or product disparagement or trade
libel, or to protect the COMPANY's reasonable business expectations or relations
with third parties, or to enforce the terms of any non-competition agreement. To
the extent this paragraph sets forth different procedures, or remedies, or
provides the arbitrator different powers than are set forth in the Rules of the
American Arbitration Association, the terms of this paragraph shall take
precedence.
9. AMENDMENTS.
No amendments to this Agreement shall be valid, unless in
writing and signed by all the parties hereto. Further, the terms and conditions
set forth in the Agreement constitute the entire agreement between the parties
and there are no other agreements or understandings relating to the subject
matter hereof.
10. ASSIGNMENT.
Neither party may transfer or assign this Agreement or its
rights hereunder without the prior written consent of the other, except that the
Company may assign
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this Agreement without the prior written consent of the Consultant to one of its
affiliated companies. Any transfer or assignment in violation of this Agreement
shall be void.
11. NOTICES.
All notices hereunder shall be in writing and mailed via the
addresses to the attention of E. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary of Unisphere
Solutions, Inc., at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to
▇▇▇▇▇▇ ▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the law of the Commonwealth of Massachusetts without regard to principles
of conflicts of laws.
13. SEVERABILITY.
In case one or more of the provisions in this Agreement shall be
invalid, illegal, or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement and any
application thereof shall not in any way be affected or impaired thereof.
IN WITNESS THEREOF, the parties hereto have caused this Agreement
to be executed as of the date and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇ UNISPHERE SOLUTIONS, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ BY: /S/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- ----------------------------
NAME: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: Secretary
DATED: January 28, 2000 DATED: January 27, ▇▇▇▇
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UNISPHERE SOLUTIONS, INC.
1999 STOCK INCENTIVE PLAN
OPTION AWARD AGREEMENT
AGREEMENT by and between Unisphere Solutions, Inc., a Delaware
corporation (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Optionee"), dated as of
the 31st day of January, 2000.
WHEREAS, the Company maintains the Unisphere Solutions, Inc. 1999
Stock Incentive Plan (the "Plan") (capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto by the Plan);
WHEREAS, the Optionee is a consultant to the Company and its
subsidiaries and was formerly President, Chief Executive Officer and a Director
of the Company;
WHEREAS, the Optionee was originally awarded an Option pursuant
to an Option Award Agreement effective April 1, 1999 (the "Original Option Award
Agreement"); and
WHEREAS, the Committee has determined that it is in the best
interests of the Company and its shareholders to replace in its entirety the
Original Option Award Agreement to grant a stock option to the Optionee subject
to the terms and conditions set forth below.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. GRANT OF STOCK OPTION.
The Company hereby grants the Optionee an option (the "Option")
to purchase 140,000 shares of Common Stock, subject to the following terms and
conditions and subject to the provisions of the Plan. The Plan is hereby
incorporated herein by reference as though set forth herein in its entirety.
The Option is not intended to be and shall not be qualified as an
"incentive stock option" under Section 422 of the Code.
2. EXERCISE PRICE.
The exercise price per share of Common Stock shall be $5.00,
subject to any applicable adjustment to the exercise price that may be made for
options granted effective April 1, 1999.
3. INITIAL EXERCISABILITY.
Subject to paragraph 5 below, the Option, to the extent that
there has been no termination of the Optionee's service as a consultant and the
Option has not otherwise expired or been forfeited, shall first become
exercisable as to 100% of the original number of shares of Common Stock on April
1, 2000.
4. EXERCISABILITY UPON AND AFTER TERMINATION OF OPTIONEE.
(a) If the Optionee's service with the Company and its
subsidiaries as a consultant is terminated other than by
termination by the Company (or a subsidiary) for Cause (as
defined below), or termination by reason of death, or
Disability (as defined below), no exercise of the Option may
occur after the expiration of the six-month period to follow
the termination, or if earlier, the expiration of the term
of the Option as provided under paragraph 5 below.
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(b) If the Optionee's service with the Company and its
subsidiaries as a consultant terminates due to the death or
Disability of the Optionee, the Option may be exercised
until the earlier of (i) one year from the date of
termination of service of the Optionee as a consultant, or
(ii) the date on which the term of the Option expires as
provided under paragraph 5 below.
(c) If the Optionee commences or continues service as a director
of the Company or one of its subsidiaries upon termination
of his services as a consultant, such continued service
shall, if the Committee in its discretion so consents, be
treated as continued service by Optionee as a consultant
hereunder.
(d) Notwithstanding any other provision of this Agreement, (i)
if the Optionee's service as a consultant is terminated by
the Company or a subsidiary thereof for Cause, or (ii) if
the Optionee violates any non-competition, non-solicitation,
non-interference, intellectual property, patent-and-secrecy
or confidentiality provisions, or any other restrictive
covenants, of any employment contract or other agreement
between the Optionee and the Company or its affiliates, then
the Option, to the extent then unexercised, shall thereupon
cease to be exercisable and shall be forfeited forthwith.
(e) Notwithstanding any other provision of this Agreement, no
Option (or portion thereof) which had not become exercisable
at the time of cessation of Optionee's service as a
consultant shall ever be or become exercisable. No provision
of this paragraph 4 is intended to or shall permit the
exercise of the Option to the extent the Option was not
exercisable upon cessation of Optionee's service as a
consultant.
(f) For purposes hereof, "Cause" shall mean, (i) engaging in (A)
willful or gross misconduct or (B) willful or gross neglect,
(ii) repeatedly failing to adhere to the directions of
superiors or the Board or the written policies and practices
of the Company or its subsidiaries or its affiliates, (iii)
the commission of a felony or a crime of moral turpitude, or
any crime involving the Company or its subsidiaries, or any
affiliate thereof, (iv) fraud, misappropriation or
embezzlement, (v) a material breach of the Optionee's
consulting agreement with the Company or its subsidiaries or
its affiliates, (vi) a breach of any non-competition,
non-solicitation, non-interference, intellectual property,
patent-and-secrecy provisions, or any other restrictive
covenants, or any employment contract or other agreement
between the Optionee or the Company or its affiliates, or
(vii) any illegal act detrimental to the Company or its
subsidiaries or its affiliates.
(g) For purposes hereof, "Disability" shall mean a disability
which renders the Optionee incapable of performing all of
his or her material duties as a consultant for a period of
at least 180 consecutive or non-consecutive days during any
consecutive twelve-month period.
5. TERM.
Unless earlier forfeited, the Option shall, notwithstanding any
other provision of this Agreement, expire in its entirety upon the tenth
anniversary of the date hereof. The Option shall also expire and be forfeited at
such times and in such circumstances as otherwise provided hereunder or under
the Plan.
6. RESTRICTIONS ON TRANSFER.
(a) During the period commencing on the date of exercise of the
Option or any part thereof and ending on the first day on
which there occurs an initial public offering of the Common
Stock under the Securities Act, the Optionee shall not,
voluntarily or involuntarily, sell, transfer, pledge,
anticipate, alienate, encumber or assign any of the
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16
shares of Common Stock issued upon exercise of the Option
(the "Optioned Shares") (except by will or the laws of
descent and distribution of the state wherein the Optionee
is domiciled at the time of his death), nor may any Optioned
Shares be attached or garnished. Any stock certificates
issued in respect of Optional Shares shall be registered in
the name of the Participant and, unless otherwise determined
by the Board, deposited by the Participant, together with a
stock power endorsed in blank, with the Company (or its
designee). At the expiration of the application of this
Section 6 (as provided under Section 6(c)), the Company (or
such designee) shall deliver the certificates no longer
subject to such restrictions to the Participant or, if the
Participant has died, to the legal representative of the
Participant's estate or such other person who then owns the
Optioned Shares, as applicable. In the event that the Board
waives or otherwise modifies the restriction on transfer
contained in this Section 6(a), the Board, as permitted by
Section 8(g) of the Plan, hereby reserves the right to
impose rights of first refusal with respect to any transfer
of shares of Common Stock issued upon exercise of the
Option, with such rights of first refusal to be on such
terms and conditions as the Board may later specify.
(b) The following transactions shall be exempt from the
provisions of this paragraph 6:
(i) any transfer of shares of Common Stock to or for the
benefit of any spouse, child or grandchild of the
Optionee, or to a trust for their benefit;
(ii) any transfer pursuant to an effective registration
statement filed by the Company under the Securities
Act; and
(iii) (A) any transaction with a party to an Acquisition
Event where such party's participation in the
Acquisition Event is approved by the Board or by
Siemens AG and (B) a transaction specifically
approved by the Board or by Siemens AG;
provided, however, that in the case of a transfer pursuant
to clause (i) above, such shares of Common Stock shall
remain subject to the restrictions set forth in this
paragraph 6 and such transferee shall, as a condition of
such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the
terms and conditions of this paragraph 6.
(c) The provisions of this paragraph 6 shall terminate upon the
closing of an initial public offering of shares of Common
Stock under the Securities Act.
(d) The Company shall not be required (i) to transfer on its
books any of the shares of Common Stock which shall have
been sold or transferred in violation of any of the
provisions set forth in this paragraph 6, or (ii) to treat
as the owner of such shares of Common Stock or to pay
dividends to any transferee to whom such shares of Common
Stock shall have been so sold or transferred.
7. MISCELLANEOUS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICT OF LAWS. The captions of this
Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended
or modified except by a written agreement executed by the
parties hereto or their respective successors and legal
representatives. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
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17
(b) The Committee may interpret this Agreement, with such
interpretations to be accorded the maximum deference
permitted by law. In the event of any dispute or
disagreement as to the interpretation of this Agreement, or
as to any question, right or obligation arising from or
related to this Agreement, the decision of the Committee
shall be final and binding upon all persons. If at any time
there is no Committee appointed for purposes of the Plan,
then, for such times, all references in this Agreement to
the "Committee" shall mean the Board.
(c) All notices hereunder shall be in writing, and if to the
Company or the Committee, shall be delivered to the Board or
mailed to its principal office, addressed to the attention
of the Board; and if to the Optionee, shall be delivered
personally, sent by facsimile transmission or mailed to the
Optionee at the address appearing in the records of the
Company. Such addresses may be changed at any time by
written notice to the other party given in accordance with
this paragraph 7(c).
(d) The failure of the Optionee or the Company to insist upon
strict compliance with any provision of this Agreement or
the Plan, or to assert any right the Optionee or the
Company, respectively, may have under this Agreement or the
Plan, shall not be deemed to be a waiver of such provision
or right or any other provision or right of this Agreement
or the Plan.
(e) The Company expressly reserves the right at any time to
dismiss or otherwise terminate its relationship with an
Optionee free from any liability or claim under this
Agreement.
(f) This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with
respect thereto.
(g) This Agreement supersedes in its entirety the Original
Option Award Agreement entered into between the Company and
Optionee effective as of April 1, 1999. The Original Option
Award Agreement is terminated and all Options awarded
thereunder shall be forfeited by Optionee.
IN WITNESS WHEREOF, the Company and the Optionee have executed
this Agreement as of the day and year first above written.
UNISPHERE SOLUTIONS, INC.
By: /S/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Optionee's Signature
4
18
UNISPHERE SOLUTIONS, INC.
1999 STOCK INCENTIVE PLAN
OPTION AWARD AGREEMENT
AGREEMENT by and between Unisphere Solutions, Inc., a Delaware
corporation (the "Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Optionee"), dated as of
the 9th day of July, 1999.
WHEREAS, the Company maintains the Unisphere Solutions, Inc. 1999
Stock Incentive Plan (the "Plan") (capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto by the Plan);
WHEREAS, the Optionee is a director of the Company or a
subsidiary thereof, and
WHEREAS, the Committee has determined that it is in the best
interests of the Company and its shareholders to grant a stock option to the
Optionee subject to the terms and conditions set forth below.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. GRANT OF STOCK OPTION.
The Company hereby grants the Optionee an option (the "Option")
to purchase 80,000 shares of Common Stock, subject to the following terms and
conditions and subject to the provisions of the Plan. The Plan is hereby
incorporated herein by reference as though set forth herein in its entirety.
The Option shall be an "Incentive stock option" under Section 422
of the Code.
2. EXERCISE PRICE.
The exercise price per share of common Stock shall be $5.00.
3. INITIAL EXERCISABILITY.
Subject to paragraph 5 below, the Option, to the extent that
there has been no termination of the Optionee's service and the Option has not
otherwise expired or been forfeited, shall first become exercisable (i) as to
25% of the original number of shares of Common Stock on April 1, 2000, and (ii)
as to an additional 6.25% of the original number of shares of Common Stock at
the end of each successive full three-month period following April 1, 2000
(until April 1, 2003).
4. EXERCISABILITY UPON AND AFTER TERMINATION OF OPTIONEE.
(a) If the Optionee's service with the Company and its
subsidiaries is terminated other than by termination by the
Company (or a subsidiary) for Cause (as defined below), or
termination by reason of death, Retirement (as defined
below) or Disability (as defined below), no exercise of the
Option may occur after the expiration of the three-month
period to follow the termination, or if earlier, the
expiration of the term of the Option as provided under
paragraph 5 below.
(b) If the Optionee's service with the Company and its
subsidiaries terminates due to the death, Retirement or
Disability of the Optionee, the Option may be exercised
until the earlier of (i) one year from the date of
termination of service of the Optionee, or (ii) the date on
which the term of the Option expires as provided under
paragraph 5 below.
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(c) If the Optionee commences or continues service as a director
or consultant of the Company or one of its subsidiaries upon
termination of employment, such continued service shall, if
the Committee in its discretion so consents, be treated as
continued employment hereunder.
(d) Notwithstanding any other provision of this Agreement (i) if
the Optionee's service is terminated by the Company or a
subsidiary thereof for Cause, or (ii) if the Optionee
violates any non-competition, non-solicitation,
non-interference, intellectual property, patent-and-secrecy
or confidentiality provisions, or any other restrictive
covenants, of any employment contract or other agreement
between the Optionee and the Company or its affiliates, then
the Option, to the extent then unexercised, shall thereupon
cease to be exercisable and shall be forfeited forthwith.
(e) Notwithstanding any other provision of this Agreement, no
Option (or portion thereof) which had not become exercisable
at the time of cessation of employment shall ever be or
become exercisable. No provision of this paragraph 4 is
intended to or shall permit the exercise of the Option to
the extent the Option was not exercisable upon cessation of
employment
(f) For purposes hereof, "Cause" shall mean, (i) engaging in (A)
willful or gross misconduct or (B) willful or gross neglect,
(ii) repeatedly failing to adhere to the directions of
superiors or the Board or the written policies and practices
of the Company or its subsidiaries or its affiliates, (iii)
the commission of a felony or a crime of moral turpitude, or
any crime involving the Company or its subsidiaries, or any
affiliate thereof, (iv) fraud, misappropriation or
embezzlement, (v) a material breach of the Optionee's
employment agreement (if any) with the Company or its
subsidiaries or its affiliates, (vi) a breach of any
non-competition, non-solicitation, non-interference,
intellectual property, patent-and-secrecy provisions, or any
other restrictive covenants, or any employment contract or
other agreement between the Optionee or the Company or its
affiliates, or (vii) any illegal act detrimental to the
Company or its subsidiaries or its affiliates.
(g) For purposes hereof, "Disability" shall mean a disability
which renders the Optionee incapable of performing all of
his or her material duties for a period of at least 180
consecutive or non-consecutive days during any consecutive
twelve-month period.
(h) For purposes here, "Retirement" shall mean the termination
(other than for Cause) of employment (or other termination
of service, in the case of a director) of an Optionee on or
after the Optionee's attainment of age 65 or on or after the
Optionee's attainment of age 55 with five consecutive years
of service with the Company and or its subsidiaries, or
otherwise with the consent of the Committee.
5. TERM.
Unless earlier forfeited, the Option shall, notwithstanding any
other provision of this Agreement, expire in its entirety upon the tenth
anniversary of the date hereof. The Option shall also expire and be forfeited at
such times and in such circumstances as otherwise provided hereunder or under
the Plan.
6. RESTRICTIONS ON TRANSFER.
(a) During the period commencing on the date of exercise of the
Option or any part thereof and ending on the first day on
which there occurs an initial public offering of the Common
Stock under the Securities Act, the Optionee shall not,
voluntarily or involuntarily, sell, transfer, pledge,
anticipate, alienate, encumber or assign any of the shares
of Common Stock issued upon exercise of the Option (the
"Optioned Shares")
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(except by will or the laws of descent and distribution of
the state wherein the Optionee is domiciled at the time of
his death), nor may any Optioned Shares be attached or
garnished. Any stock certificates issued in respect of
Optional Shares shall be registered in the name of the
Participant and, unless otherwise determined by the Board,
deposited by the Participant, together with a stock power
endorsed in blank, with the Company (or its designee). At
the expiration of the application of this Section 6 (as
provided under Section 6(c)), the Company (or such designee)
shall deliver the certificates no longer subject to such
restrictions to the Participant or, if the Participant has
died, to the legal representative of the Participant's
estate or such other person who then owns the Optioned
Shares, as applicable. In the event that the Board waives or
otherwise modifies the restriction on transfer contained in
this Section 6(a), the Board, as permitted by Section 8(g)
of the Plan, hereby reserves the right to impose rights of
first refusal with respect to any transfer of shares of
Common Stock issued upon exercise of the Option, with such
rights of first refusal to be on such terms and conditions
as the Board may later specify.
(b) The following transactions shall be exempt from the
provisions of this paragraph 6:
(i) any transfer of shares of Common Stock to or for the
benefit of any spouse, child or grandchild of the
Optionee, or to a trust for their benefit;
(ii) any transfer pursuant to an effective registration
statement filed by the Company under the Securities
Act; and
(iii) (A) any transaction with a party to an Acquisition
Event where such party's participation in the
Acquisition Event is approved by the Board or by
Siemens AG and (B) a transaction specifically
approved by the Board or by Siemens AG,
provided, however, that in the case of a transfer pursuant
to clause (i) above, such shares of Common Stock shall
remain subject to the restrictions set forth in this
paragraph 6 and such transferee shall, as a condition of
such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the
terms and conditions of this paragraph 6.
(c) The provisions of this paragraph 6 shall terminate upon the
closing of an initial public offering of shares of Common
Stock under the Securities Act.
(d) The Company shall not be required (i) to transfer on its
books any of the shares of Common Stock which shall have
been sold or transferred in violation of any of the
provisions set forth in this paragraph 6, or (ii) to treat
as the owner of such shares of Common Stock or to pay
dividends to any transferee to whom such shares of Common
Stock shall have been so sold or transferred.
7. MISCELLANEOUS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICT OF LAWS. The captions of this
Agreement are not part of the provisions hereof and shall
have no force or effect. This Agreement may not be amended
or modified except by a written agreement executed by the
parties hereto or their respective successors and legal
representatives. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
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(b) The Committee may interpret this Agreement. with such
interpretations to be accorded the maximum deference
permitted by law. In the event of any dispute or
disagreement as to the interpretation of this Agreement, or
as to any question, right or obligation arising from or
related to this Agreement, the decision of the Committee
shall be final and binding upon all persons. If at any time
there is no Committee appointed for purposes of the Plan,
then, for such times, all references in this Agreement to
the "Committee" shall mean the Board.
(c) If shares of Common Stock acquired upon exercise of the
Option are disposed of in a disqualifying disposition within
the meaning of Section 422 of the Code by the Optionee or,
if applicable, a permitted successor of the Optionee, prior
to the expiration of either two years from the date of grant
of the Option or one year from the transfer of shares of
Common Stock to the Optionee pursuant to the exercise of the
Option, or in any other, disqualifying disposition within
the meaning of Section 422 of the Code, the Optionee or such
successor, as applicable, shall notify the Company in
writing as soon as practicable (and in no event more than
five days) thereafter of the date and terms of such
disposition and, if the Company (or any affiliate thereof)
thereupon has a tax-withholding obligation, shall pay to the
Company (or such affiliate) an amount equal to any
withholding tax the Company is required to pay as a result
of the disqualifying disposition.
(d) All notices hereunder shall be in writing, and if to the
Company or the Committee, shall be delivered to the Board or
mailed to its principal office, addressed to the attention
of the Board, and if to the Optionee, shall be delivered
personally, sent by facsimile transmission or mailed to the
Optionee at the address appearing in the records of the
Company. Such addresses may be changed at any time by
written notice to the other party given in accordance with
this paragraph 7(d).
(e) The failure of the Optionee or the Company to insist upon
strict compliance with any provision of this Agreement or
the Plan, or to assert any right the Optionee or the
Company, respectively, may have under this Agreement or the
Plan, shall not be deemed to be a waiver of such provision
or right or any other provision or right of this Agreement
or the Plan.
(f) The Company expressly reserves the right at any time to
dismiss or otherwise terminate its relationship with an
Optionee free from any liability or claim under this
Agreement.
(g) This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with
respect thereto.
IN WITNESS WHEREOF, the Company and the Optionee have executed
this Agreement as of the day and year first above written.
UNISPHERE SOLUTIONS, INC.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman of the Board of
Directors
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Optionee's Signature
4