Berliner Communications, Inc.
Berliner
Communications, Inc.
2007
Equity Incentive Plan
THIS
STOCK OPTION AWARD AGREEMENT (this “Award Agreement”) is
entered into effective as of ___________, ____ by and between Berliner
Communications, Inc., a Delaware corporation (the “Company”), and
_________ (the “Optionee”) pursuant
to the Berliner Communications, Inc. 2007 Equity Incentive Plan (the “Plan”).
SECTION
1. GRANT OF OPTION.
(a) Option. On the terms
and conditions set forth in this Award Agreement, the Company grants to the
Optionee on the Date of Grant an option (this “Option”) to purchase
at the Exercise Price a number of Shares, as set forth in Section 1(b)
below. This Option is a Nonqualified Stock Option and is not intended
to be an “incentive stock option” (an “ISO”) as defined in
Section 422 of the Internal Revenue Code of 1986, as amended from time to time
(the “Code”). This
Option is granted under and subject to the terms of the Plan, which is
incorporated herein by reference. Capitalized terms not otherwise
defined in this Award Agreement shall have the meaning set forth in the
Plan.
(b) Terms.
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Number
of Shares Subject to Option:
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______
shares of common stock (“Shares”),
par value $.00002 per share, of Berliner Communications, Inc. (“Berliner”).
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Exercise
Price Per Share:
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$____
(“Exercise Price”)
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Date
of Grant:
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_____________,
____ (“Date of
Grant”)
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Vesting
Schedule:
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This
Option shall vest with respect to twenty percent (20%) of the Shares
subject to this Award Agreement on each of the first, second, third,
fourth and fifth anniversary of the Date of Grant, provided the Optionee’s
employment with the Company has not terminated prior to each such
date.
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Exercise
Restriction:
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Forty
percent (40%) of the Shares subject to this Award Agreement will become
exercisable only when the closing price per share of common stock of
Berliner is equal to or greater than $3.00 for twenty (20) consecutive
trading days on which at least 5,000 shares of common stock of Berliner
are actually traded, as reported on the principal exchange on which such
shares are then traded.
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SECTION
2. RIGHT TO EXERCISE.
(a) Exercisability. Subject
to the conditions set forth in this Award Agreement, all or part of this Option
may be exercised prior to its expiration to the extent the Shares subject to
this Option are vested and exercisable.
(b) $100,000
Limitation. If this Option is designated as an ISO in the
Notice of Exercise, then the Optionee’s right to exercise this Option shall be
deferred to the extent (and only to the extent)
that this Option would not be treated as an ISO solely by reason of the $100,000
annual limitation under Section 422(d) of the Code, except that the
Optionee’s right to exercise this Option shall no longer be deferred if
(i) the Company is subject to a Change in Control before the Optionee’s
Service terminates, (ii) the Company, or any surviving corporation, or its
parent does not continue this Option, and (iii) any surviving corporation or its
parent does not assume this Option or does not substitute an option with
substantially the same terms of this Option for this Option.
SECTION
3. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as
otherwise provided in this Award Agreement, this Option and the rights and
privileges conferred hereby shall not be sold, assigned, pledged or otherwise
transferred (whether by operation of law or otherwise) and shall not be subject
to any such transfer under execution, attachment, levy or similar
process. If this Option is intended to be an ISO, this Option shall
be non-transferable except by will or the laws of descent and distribution and
shall be exercisable during the Optionee’s lifetime by the Optionee
only.
SECTION
4. EXERCISE PROCEDURES.
(a) Notice of
Exercise. The Optionee or the Optionee’s representative may
exercise this Option by giving written notice to the Company specifying the
election to exercise this Option, the number of Shares for which it is being
exercised and the form of payment. Exhibit A is an
example of a “Notice of Exercise”. The Notice of Exercise shall be
signed by the person exercising this Option. In the event that this
Option is being exercised by the Optionee’s representative, the Notice of
Exercise shall be accompanied by proof (satisfactory to the Company) of the
representative’s right to exercise this Option. The Optionee or the
Optionee’s representative shall deliver to the Company, at the time of giving
the Notice of Exercise, payment in a form permissible under Section 5 for the
applicable amount of the Exercise Price (the “Purchase
Price”).
(b) Issuance of
Shares. After receiving a proper Notice of Exercise, the
Company shall cause to be issued a certificate or certificates for the Shares as
to which this Option has been exercised, registered in the name of the person
exercising this Option (or in the names of such person and his or her spouse as
community property or as joint tenants with right of survivorship).
(c) Withholding
Requirements. The Company may withhold any tax (or other
governmental obligation) as a result of the exercise of this Option as a
condition to the exercise of this Option, and the Optionee shall make
arrangements satisfactory to the Company to enable it to satisfy all such
withholding requirements. The Optionee shall also make arrangements
satisfactory to the Company to enable it to satisfy any withholding requirements
that may arise in connection with the vesting or disposition of Shares purchased
by exercising this Option.
SECTION
5. PAYMENT FOR SHARES.
(a) Cash or Check. The
Purchase Price may be paid in cash or by check.
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(b) Other Methods of Payment for
Shares. At the sole discretion of the Board, all or any part
of the Purchase Price and any applicable withholding requirements may be paid by
any other method permissible under the terms of the Plan. The Company
shall notify the Optionee if and when it shall make such other payment method
available to the Optionee.
SECTION
6. TERM AND EXPIRATION.
(a) Basic Term. Subject
to earlier termination in accordance with subsection (b) below, this Option
shall expire on the tenth (10th) anniversary of the Date of Grant (the “Expiration
Date”).
(b) Termination of
Service. If the Optionee’s Service terminates for any reason,
then this Option shall expire on the earliest of the following
occasions:
(i) the
Expiration Date;
(ii) the
date twelve (12) months after the termination of the Optionee’s Service by
reason of Disability (or such later date as the Board may determine) or by
reason of the Optionee’s death;
(iii) the
date thirty (30) days after the termination of the Optionee’s Service for any
other reason, (or such later date as the Board may determine); and
The Optionee (or in the case of the
Optionee’s death or Disability, the Optionee’s representative) may exercise all
or part of this Option at any time before the Expiration Date, but only to the
extent that this Option or portion thereof had become vested and exercisable on
or before the date the Optionee’s Service terminates. When the
Optionee’s Service terminates, this Option shall expire immediately with respect
to the number of Shares for which this Option is not yet vested or
exercisable.
(c) Leave of
Absence. For any purpose under this Award Agreement, Service
shall be deemed to continue while the Optionee is on a bona fide leave of
absence, if such leave was approved by the Company in writing or if continued
crediting of Service for such purpose is expressly required by the terms of such
leave or by applicable law (as determined by the Company).
(d) Notice Concerning ISO
Treatment. If this Option is designated as an ISO in the
Notice of Exercise, it ceases to qualify for favorable tax treatment as an ISO
to the extent it is exercised (i) more than three (3) months after the date
the Optionee ceases to be an Employee for any reason other than death or
permanent and total disability (as defined in Section 22(e)(3) of the
Code), (ii) more than twelve (12) months after the date the Optionee ceases
to be an Employee by reason of such permanent and total disability or
(iii) after the Optionee has been on a leave of absence for more than
ninety (90) days, unless the Optionee’s reemployment rights are guaranteed by
statute or by contract.
SECTION
7. RIGHT OF REPURCHASE.
At any
time prior to an Initial Public Offering on ten (10) days written notice to the
Optionee, the Company may, but is not obligated to, repurchase Shares acquired
under the Plan from any
Optionee whose Service terminated for an amount equal to: (i) if Optionee’s
Service terminates for Cause, the purchase price paid, if any, by the Optionee
for such Shares (or if less, the Fair Market Value of such Shares), or (ii) in
the case of any other termination of Service, at the Fair Market Value of such
Shares on the date of the exercise of the repurchase right by the Company, as
determined in the sole discretion of the Company in accordance with the terms of
the Plan. For purposes of this Award Agreement, “Initial Public
Offering” shall mean consummation of a firm commitment underwritten
public offering of Shares or other event the result of which is that Shares are
tradable on the New York Stock Exchange, American Stock Exchange, NASDAQ
National Market or similar United States market system.
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SECTION
8. SECURITIES LAWS.
(a) Legality of Initial
Issuance. No Shares shall be issued upon the exercise of this
Option unless and until the Company has determined that:
(i) the
Company and the Optionee have taken any actions required to register the Shares
under the Securities Act of 1933, as amended (the “Securities Act”) or
to perfect an exemption from the registration requirements thereof;
(ii) any
applicable listing requirement of any stock exchange or other securities market
on which Shares are listed has been satisfied; and
(iii) any
other applicable provision of state or federal law has been
satisfied.
(b) Registration Rights. The
Company may, but shall not be obligated to, register or qualify the sale of
Shares under the Securities Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the sale of Shares under this Award Agreement to comply with any
law.
(c) Securities Law
Restrictions. Regardless of whether the offering and sale of
Shares under the Plan have been registered under the Securities Act or have been
registered or qualified under the securities laws of any state, the Company at
its discretion may impose restrictions upon the sale, pledge or other transfer
of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act or the securities laws of any
state or any other law.
(d) Optionee
Undertaking. The Optionee agrees to take whatever additional
action and execute whatever additional documents the Company may deem necessary
or advisable to carry out or effect one or more of the obligations or
restrictions imposed on either the Optionee or upon the Shares pursuant to the
provisions of this Award Agreement.
(e) Investment
Intent. The Optionee represents and agrees that as of the Date
of Grant, the Shares to be acquired upon exercising this Option will be acquired
for investment, and not with a view to the sale or distribution
thereof. If the sale of Shares under the Plan is not registered under
the Securities Act but an exemption is available that requires an investment
representation or other representation, the Optionee shall represent and agree
at the time of exercise that the Shares being acquired upon exercising this
Option are being acquired for investment, and not with a
view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and its
counsel.
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SECTION
9. ADJUSTMENT OF SHARES.
In the
event of a Recapitalization the terms of this Option (including, without
limitation, the number and kind of Shares subject to this Option and the
Exercise Price) shall be adjusted as set forth in Section 13.1 of the
Plan.
SECTION
10. MISCELLANEOUS PROVISIONS.
(a) Rights as a
Shareholder. Neither the Optionee nor the Optionee’s
representative shall have any rights as a shareholder with respect to any Shares
subject to this Option until the Optionee or the Optionee’s representative
becomes entitled to receive such Shares by (i) filing a Notice of Exercise, and
(ii) paying the Purchase Price as provided in this Award Agreement.
(b) No Retention
Rights. Nothing in this Option or in the Plan shall confer
upon the Optionee any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company (or any parent of the Company or Subsidiary employing or retaining the
Optionee) or of the Optionee, which rights are hereby expressly reserved by
each, to terminate his or her Service at any time and for any reason, with or
without Cause.
(c) Notification. Any
notification required by the terms of this Award Agreement shall be given in
writing and shall be deemed effective upon personal delivery or upon deposit
with the United States Postal Service, by registered or certified mail, with
postage and fees prepaid. A notice shall be addressed to the Company
at its principal executive office and to the Optionee at the address that he or
she most recently provided to the Company.
(d) Entire
Agreement. This Award Agreement and the Plan constitute the
entire contract between the parties hereto with regard to the subject matter
hereof. They supersede any other agreements, representations or
understandings (whether oral or written and whether express or implied) which
relate to the subject matter hereof.
(e) Waiver. The failure
of the Company in any instance to exercise the right of repurchase shall not
constitute a waiver of any other repurchase rights that may subsequently arise
under the provisions of this Award Agreement or any other agreement between the
Company and the Optionee. No waiver of any breach or condition of
this Award Agreement shall be deemed to be a waiver of any other or subsequent
breach or condition whether of like or different nature.
(f) Successors and
Assigns. The provisions of this Award Agreement shall inure to
the benefit of, and be binding upon, the Company and its successors and assigns
and upon the Optionee, the Optionee’s assigns and the legal representatives,
heirs and legatees of the Optionee’s estate, whether or not any such person
shall have become a party to this Award Agreement and have agreed in writing to
be joined herein and be bound by the terms hereof.
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(g) Choice of Law. This
Award Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York, as such laws are applied to contracts entered into and
performed in such State.
[The
Remainder of This Page Is Intentionally Left Blank.]
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IN
WITNESS WHEREOF, the parties have executed this Award Agreement to be effective
as of the date first written above.
BERLINER
COMMUNICATIONS, INC.
By:
Name:
Title:
OPTIONEE:
Name of
Optionee
Signature
Page to Stock Option Award Agreement
EXHIBIT
A
Sample
Notice of Exercise
Berliner
Communications, Inc.
[Address]
Attn: Corporate
Secretary
To the
Corporate Secretary:
I hereby
exercise my stock option granted under the Berliner Communications, Inc. 2007
Equity Incentive Plan (the “Plan”) and notify you of my desire to purchase the
shares that have been offered pursuant to the Plan and related Award Agreement
as described below.
I shall
pay for the shares by delivery of a check payable to Berliner Communications,
Inc (the “Company”) in the amount described below in full payment for such
shares plus all amounts required to be withheld by the Company under state
federal or local law as a result of such exercise or shall provide such
documentation as is satisfactory to the Company demonstrating that I am exempt
from any withholding requirement.
This
notice of exercise is delivered this ___ day of ___________________ (month)
____(year).
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No.
Shares to be Acquired
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Type
of Option
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Exercise
Price
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Total
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Nonstatutory
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Incentive
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Estimated
Withholding
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Nonstatutory
only
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Amount
Paid
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Very truly yours,
______________________
Signature of Optionee
Optionee’s Name and Mailing
Address
______________________
______________________
______________________
Optionee’s Social Security
Number
A-1
EXHIBIT
B
Right
of Repurchase
Exercise
Notice
[Date]
Re: Exercise of Right of
Repurchase
Dear
Optionee:
The
Company wishes to exercise its right of repurchase under the Berliner
Communications, Inc 2007 Equity Incentive Plan (“Plan”) and buy back from you
shares of common stock of Berliner Communications, Inc. that you acquired upon
the exercise of one or more stock options granted to you pursuant to the Plan
under the terms described below:
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Date
of Initial Option Grant
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Shares
to be Repurchased
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FMV
of one Share
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Purchase
Price
per
Share
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Repurchase
Price
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Total
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Other
Terms
Shares
shall be repurchased on [insert date]. The
Company shall pay the repurchase price to you by delivery of payment by check on
or within five (5) days following such date. Once the payment is made
available to you, you shall no longer be considered a shareholder with respect
to those shares.
* * *
Should
you have any additional questions, please contact [insert contact person and contact
information].
Very
truly yours,
B-1