EXHIBIT 99.2
NETLINK, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
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Netlink, Inc., a Delaware corporation (the "Company"), hereby grants as of the
25th day of July, 1996 to EMPLOYEE NAME (the "Optionee"), an option to purchase
a maximum of 2,500 shares (the "Option Shares") of its Common Stock, $.01 par
value ("Common Stock"), at the price of $0.35 per share, on the following terms
and conditions:
1. GRANT UNDER 1993 STOCK PLAN. This option is granted pursuant to and is
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governed by the Company's 1993 Stock Plan (the "Plan") and, unless the context
otherwise requires, terms used herein shall have the same meaning as in the
Plan. Determinations made in connection with this option pursuant to the Plan
shall be governed by the Plan as it exists on this date.
2. GRANT AS NON-QUALIFIED OPTION; OTHER OPTIONS. This option shall be
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treated for federal income tax purposes as a Non-Qualified Option (rather than
an incentive stock option). Except as may be otherwise provided above, this
option is in addition to any other options heretofore or hereafter granted to
the Optionee by the Company or any Related Corporation (as defined in the Plan),
but a duplicate original of this instrument shall not affect the grant of
another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the Optionee
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has continued to serve the Company or any Related Corporation in the capacity of
an employee, officer, director, or consultant (such service is described herein
as maintaining or being involved in a "Business Relationship with the Company")
on the following dates, the Optionee may exercise this option for the number of
shares of Common Stock set opposite the applicable date:
Date through which service is performed # of shares
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Vested at date of grant None
October 24, 1996 an additional 156
January 24, 1997 an additional 157
April 24, 1997 an additional 156
July 24, 1997 an additional 156
October 24, 1997 an additional 156
January 24, 1998 an additional 157
April 24, 1998 an additional 156
July 24, 1998 an additional 156
October 24, 1998 an additional 156
January 24, 1999 an additional 157
April 24, 1999 an additional 156
July 24, 1999 an additional 156
October 24, 1999 an additional 156
January 24, 2000 an additional 157
April 24, 2000 an additional 156
July 24, 2000 an additional 156
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Total 2,500
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company or any Related Corporation,
may be exercised up to and including the date which is ten years from the date
this option is granted. All of the foregoing rights are subject to Sections 4
and 5, as appropriate, if the Optionee ceases to maintain a Business
Relationship with the Company and all Related Corporations or dies, becomes
disables or undergoes dissolution while involved in a Business Relationship with
the Company.
4. TERMINATION OF BUSINESS RELATIONSHIP.
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(A) TERMINATION OTHER THAN FOR CAUSE: If the Optionee's Business
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Relationship with the Company and all Related Corporations is terminated, other
than by reason of death, disability or dissolution as defined in Section 5 or
termination for Cause as defined in Section 4(c), no further installments of
this option shall become exercisable, and this option shall terminate after the
passage of ninety (90) days from the date the Business Relationship ceases, but
in no event later than the scheduled expiration date. In such a case, the
Optionee's only rights hereunder shall be those which are properly exercised
before the termination of this option.
(B) TERMINATION FOR CAUSE: If the Optionee's Business Relationship
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with the Company is terminated for Cause (as defined in Section 4(c)), this
option shall terminate upon the Optionee's receipt of written notice of such
termination and shall thereafter not be exercisable to any extent whatsoever.
(C) DEFINITION OF CAUSE: "Cause" shall mean conduct involving one or
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more of the following: (i) The substantial and continuing failure of the
Optionee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of the Optionee's
Business Relationship with the Company; (ii) disloyalty, gross negligence,
willful misconduct, dishonesty or breach of fiduciary duty to the Company or
Related Corporation; (iii) the commission of an act of embezzlement or fraud;
(iv) deliberate disregard of the rules or policies of the Company or Related
Corporation which results in direct or indirect loss, damage or injury to the
Company or Related Corporation; (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or Related Corporation; or
(vi) the commission of an act which constitutes unfair competition with the
Company or Related Corporation or which induces any customer or supplier to
break a contract with the Company or Related Corporation.
5. DEATH; DISABILITY; DISSOLUTION.
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(A) DEATH: If the Optionee is a natural person who dies while
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involved in a Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Optionee's estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 10, at any time within one (1) year
after the date of death, but not later than the scheduled expiration date.
(B) DISABILITY: If the Optionee is a natural person whose Business
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Relationship with the Company is terminated by reason of his or her disability
(as defined in the Plan), this option may be exercised, to
the extent otherwise exercisable on the date the Business Relationship was
terminated, at any time within one (1) year after such termination, but not
later than the scheduled expiration date.
(C) EFFECT OF TERMINATION: At the expiration of such one-year period
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provided in paragraph (a) or (b) of this Section 5 or the scheduled expiration
date, whichever is the earlier, this option shall terminate and the only rights
hereunder shall be those as to which the option was properly exercised before
such termination.
(D) DISSOLUTION: If the Optionee is a corporation, partnership,
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trust or other entity that is dissolved, is liquidated, becomes insolvent or
enters into a merger or acquisition with respect to which the Optionee is not
the surviving entity, at a time when the Optionee is involved in a Business
Relationship with the Company, this option shall immediately terminate as of the
date of such event, and the only rights hereunder shall be those as to which
this option was properly exercised before such dissolution or other event.
6. PARTIAL EXERCISE. This option may be exercised in part at any time and
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from time to time within the above limits, except that this option may not be
exercised for a fraction of a share unless such exercise is with respect to the
final installment of stock subject to this option and cash in lieu of a
fractional share must be paid, in accordance with Paragraph 13(G) of the Plan,
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE.
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(A) FORM OF PAYMENT: The option price shall be paid in the following
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manner:
(i) in cash or by check;
(ii) subject to paragraph 7(b) below, by delivery of
shares of the Company's Common Stock having a fair market
value (as determined by the Committee) equal as of the
date of exercise to the option price;
(iii) by delivery of an assignment satisfactory in
form and substance to the Company of a sufficient amount
of the proceeds from the sale of the Option Shares and an
instruction to the broker or selling agent to pay that
amount to the Company; or
(iv) by any combination of the foregoing.
(B) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK: If the
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Optionee delivers Common Stock held by the Optionee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Optionee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Optionee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Optionee may not pay
any part of the exercise price hereof by transferring Common Stock to the
Company unless such Common Stock has been owned by the Optionee free of any
substantial risk of forfeiture for at least six months.
8. RESTRICTIONS ON TRANSFER. Option Shares may not be transferred without
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the Company's written consent except by will, by the laws of descent and
distribution, or in accordance with the provisions of Section 16, if applicable.
Option Shares will be of an illiquid nature and will be deemed to be "restricted
securities" for purposes of the Securities Act of 1993, as amended.
Accordingly, such shares must be sold in compliance with the registration
requirements of such Act or an exemption therefrom.
9. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
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this Agreement, this option may be exercised by written notice to the Company,
at the principal executive office of the Company, or to such transfer agent as
the Company shall designate. Such notice shall state the election to exercise
this option and the number of Option Shares for which it is being exercised and
shall be signed by the person or persons so exercising this option. Such notice
shall be accompanied by payment of the full purchase price of such shares, and
the Company shall deliver a certificate or certificates representing such shares
as soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option(or, if this option shall be exercised by the Optionee and
if the Optionee shall so request in the notice exercising this option, shall be
registered in the name of the Optionee and another person jointly, with right of
survivorship). In the event this option shall be exercised, pursuant to Section
5 hereof, by any person or persons other than the Optionee, such notice shall be
accompanied by appropriate proof of the right of such person or persons to
exercise this option.
10. OPTION NOT TRANSFERABLE. This option is not transferable or assignable
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except by will or by the laws of descent and distribution. During the
Optionee's lifetime, only the Optionee can exercise this option.
11. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
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option imposes no obligation on the Optionee to exercise it.
12. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. Neither the Plan, this
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Agreement, nor the grant of this option imposes any obligation on the Company or
any Related Corporation to continue to maintain a Business Relationship with the
Optionee.
13. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
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rights as a stockholder with respect to the Option Shares until such time as the
Optionee has exercised this option by delivering a notice of exercise and has
paid in full the purchase price for the number of shares for which this option
is to be so exercised in accordance with Section 9. Except as is expressly
provided in the Plan with respect to certain changes in the capitalization of
the Company, no adjustment shall be made for dividends or similar rights for
which the record date is prior to such date of exercise.
14. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains provisions
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covering the treatment of options in a number of contingencies such as stock
splits and mergers. Provisions in the Plan for adjustment with respect to stock
subject to options and the related provisions with respect to successors to the
business of the Company are hereby made applicable hereunder and are
incorporated herein by reference.
15. WITHHOLDING TAXES. If the Company or any Related Corporation in its
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discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, or in connection with the transfer of, or the
lapse of restrictions on, any Common Stock or other property acquired pursuant
to this option, the Optionee hereby agrees that the Company or any Related
Corporation may withhold from the Optionee's wages or other remuneration the
appropriate amount of tax. At the discretion of the Company or Related
Corporation, the amount required to be withheld may be withheld in cash from
such wages or other remuneration or in kind from the Common Stock or other
property otherwise deliverable to the Optionee on exercise of this option. The
Optionee further agrees that, if the Company or Related Corporation does not
withhold an amount from the Optionee's wages or other remuneration sufficient to
satisfy the withholding obligation of the Company or Related Corporation, the
Optionee will make reimbursement on demand, in cash, for the amount
underwithheld.
16. COMPANY'S RIGHT OF FIRST REFUSAL.
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(A) EXERCISE OF RIGHT: If the Optionee or his or her
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legal representative (the "Transferor") desires to transfer all or any part of
the Option Shares to any person other than the Company (an "Offeror"), the
Transferor shall: (i) obtain in writing an irrevocable and unconditional bona
fide offer (the "Offer") for the purchase thereof from the Offeror; and (ii)
give written notice (the "Option Notice") to the Company setting forth the
Optionee's desire to transfer such shares, which Option Notice shall be
accompanied by a photocopy of the Offer and the price and terms of the bona fide
offer. Upon receipt of the Option Notice, the Company shall have an assignable
option to purchase any or all of such shares (the "Company Option Shares")
specified in the Option Notice, such option to be exercisable by giving, within
30 days after receipt of the Option Notice, a written counter-notice to the
Transferor. If the Company elects to purchase any or all of such Company Option
Shares, it shall be obligated to purchase, and the Optionee shall be obligated
to sell to the Company, such Company Option Shares at the price and terms
indicated in the Offer within 30 days from the date of delivery by the Company
of such counter-notice.
(B) SALE OF OPTION SHARES TO OFFEROR: The Transferor may, for 60 days
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after the expiration of the 30-day period during which the Company may give the
counter-notice, sell, pursuant to the terms of the Offer, any or all of such
Company Option Shares not purchased or agreed to be purchased by the Company or
its assignee; provided, however, that the Transferor shall not sell such Company
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Option Shares to the Offeror if the Offeror is a competitor of the Company and
the Company gives written notice to the Transferor, within 30 days of its
receipt of the Option Notice, stating that the Transferor shall not sell such
Company Option Shares to such Offeror; and provided, further, that prior to the
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sale of such Company Option Shares to the Offeror, the Offeror shall execute an
agreement with the Company pursuant to which the Offeror agrees to be subject to
the restrictions set forth in this Section 16. If any or all of such Company
Option Shares are not sold pursuant to an Offer within the time permitted above,
the unsold Company Option Shares shall remain subject to the terms of this
Section 16.
(C) ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE: If there shall be any
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change in the Common Stock of the Company through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, combination or
exchange of shares, or the like, the restrictions contained in this Section 16
shall apply with equal force to additional and/or substitute securities, if any,
received by the Optionee in exchange for, or by virtue of his or her ownership
of, Company Option Shares.
(D) FAILURE TO DELIVER COMPANY OPTION SHARES: If the Transferor fails or
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refuses to deliver on a timely basis duly endorsed certificates representing
Company Option Shares to be sold to the Company or its assignee pursuant to this
Section 16, the Company shall have the right to deposit the purchase price
for such Company Option Shares in a special account with any bank or trust
company in the state of North Carolina, giving notice of such deposit to the
Transferor, whereupon such Company Option Shares shall be deemed to have been
purchased by the Company. All such monies shall be held by the bank or trust
company for the benefit of the Transferor. All monies deposited with the bank
or trust company remaining unclaimed for two years after the date of deposit
shall be repaid by the bank or trust company to the Company on demand, and the
Transferor shall thereafter look only to the Company for payment. The Company
may place a legend on any stock certificate delivered to the Transferor
reflecting the restrictions on transfer provided in Section 8 hereof and this
Section 16.
(E) EXPIRATION OF COMPANY'S RIGHT OF FIRST REFUSAL: The first refusal
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rights of the Company set forth above shall remain in effect until such time, if
ever, as a distribution to the public is made of shares of the Company's Common
Stock pursuant to a registration statement filed under the Securities Act of
1933, as amended, or a successor statute, at which time the first refusal rights
of the Company set forth herein will automatically expire.
17. LOCK-UP AGREEMENT. The Optionee agrees that in connection with an
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underwritten public offering of Common Stock, upon the request of the Company or
the principal underwriter managing such public offering, this Option and the
Option Shares may not be sold, offered for sale or otherwise disposed of without
the prior written consent of the Company or such underwriter, as the case may
be, for at least 180 days or such other period of time as the Board of Directors
may determine.
18. ARBITRATION. Any dispute, controversy, or claim arising out of, in
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connection with, or relating to the performance of this Agreement or its
termination shall be settled by arbitration in the State of North Carolina,
pursuant to the rules then enacted by the American Arbitration Association. Any
award shall be final, binding and conclusive upon the parties and a judgment
rendered thereon may be entered in any court having jurisdiction thereof.
19. PROVISION OF DOCUMENTATION TO EMPLOYEE. By signing this Agreement the
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Optionee acknowledges receipt of a copy of this Agreement.
20. MISCELLANEOUS.
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(A) NOTICES: All notices hereunder shall be in writing and shall be
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deemed given when sent by certified or registered mail, postage prepaid, return
receipt requested, to the addresses
set forth below. The addresses for such notices may be changed from time to
time by written notice given in the manner provided for herein.
(B) ENTIRE AGREEMENT; MODIFICATION: This Agreement constitutes the
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entire agreement between the parties relative to the subject matter of this
Agreement. This Agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(C) SEVERABILITY: The invalidity, illegality or unenforceability of
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any provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision.
(D) SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns, subject to the limitations set forth in Section 10 hereof.
(E) GOVERNING LAW: This Agreement shall be governed by and
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interpreted in accordance with the laws of the State of North Carolina, without
giving effect to the principles of the conflicts of laws thereof. The preceding
choice of law provision shall apply to all claims, under any theory whatsoever,
arising out of the relationship of the parties contemplated herein.
21. ACCELERATION OF VESTING OF OPTION FOR BUSINESS COMBINATIONS: If the
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Company is to be consolidated with or acquired by another entity in a merger,
sale of all or substantially all of the Company's assets or otherwise (an
"Acquisition"), then this option shall, immediately prior to the consummation of
such Acquisition, become fully vested and immediately exercisable by the
Optionee.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
Netlink, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: _____________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary & Director of
Finance
Optionee
Print Name of ▇▇▇▇▇▇▇▇
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▇▇▇▇, ▇▇▇▇▇ Zip Code
Optionee's Social Security Number
By: _____________________
Print Name of Optionee