Exhibit 10.2A
Form of Option Award Agreement for Officers
NON-QUALIFIED STOCK OPTION AWARD
PURSUANT TO THE VERILINK CORPORATION
2002 STOCK INCENTIVE PLAN
THIS AWARD is made as of the Grant Date by VERILINK CORPORATION (the
"Company") to ____________________________________ (the "Optionee").
Upon and subject to the Terms and Conditions attached hereto and
incorporated herein by reference, the Company hereby awards as of the Grant Date
to Optionee an option (the "Option"), as described below, to purchase the Option
Shares.
▇. ▇▇▇▇▇ Date: _______________________.
B. Type of Option: Non-Qualified Stock Option issued under the Verilink
Corporation 2002 Stock Incentive Plan (the "Plan").
C. Plan under which granted: Verilink Corporation 2002 Stock Incentive
Plan.
D. Option Shares: All or any part of __________ shares of the Company's
common stock, $.01 par value per share (the "Stock"), subject to
adjustment as provided in the attached Terms and Conditions.
E. Exercise Price: $_______ per share, subject to adjustment as
provided in the attached Terms and Conditions.
F. Option Period: The Option may be exercised only during the Option
Period which commences on the Grant Date and ends on the earlier of
(a) the tenth (10th) anniversary of the Grant Date; (b) the later of
the date (i) three (3) months following the date the Optionee ceases
to be an employee of the Company or any Subsidiary for any reason
other than due to death, Disability or a Change in Control; or (ii)
twelve (12) months following the date the Optionee ceases to be an
employee of the Company or any Subsidiary due to death, Disability
or a Change in Control; provided that the Option may be exercised as
to no more than the vested Option Shares, determined pursuant to the
Vesting Schedule. Note that other limitations to exercising the
Option, as described in the attached Terms and Conditions, may
apply.
G. Vesting Schedule (Schedule 1): The Option Shares shall become vested
in accordance with the attached Vesting Schedule. All or a portion
of the Option Shares may become vested on an earlier date as
provided in the attached Terms and Conditions.
IN WITNESS WHEREOF, the Company has executed and sealed this Award as of
the Grant Date set forth above.
VERILINK CORPORATION
By: ________________________
Title: _____________________
TERMS AND CONDITIONS
TO THE
NON-QUALIFIED STOCK OPTION AWARD
PURSUANT TO THE VERILINK CORPORATION
2002 STOCK INCENTIVE PLAN
1. Exercise of Option. Subject to the provisions of the Plan and the Award
which is made pursuant to the Verilink Corporation 2002 Stock Incentive Plan and
subject also to these Terms and Conditions, which are incorporated in and made a
part of the attached Award:
(a) the Option may be exercised with respect to all or any portion
of the Vested Option Shares at any time during the Option Period by the
delivery to the Company, at its principal place of business, of a written
notice of exercise in substantially the form attached hereto as Exhibit 1;
(b) payment to the Company of the Exercise Price multiplied by the
number of Vested Option Shares being purchased (the "Purchase Price") as
provided in Section 2; and
(c) payment of any tax withholding liability pursuant to Section 4
below.
Upon acceptance of such notice and receipt of payment in full of the Purchase
Price and any tax withholding liability, the Company shall cause to be issued a
certificate representing the Vested Option Shares purchased.
2. Purchase Price. Payment of the Purchase Price for all Vested Option
Shares purchased pursuant to the exercise of an Option shall be made
(a) in cash or certified check;
(b) by delivery to the Company of a number of shares of Stock which
have been owned by the Optionee for at least six (6) months prior to the
date of the Option's exercise having a fair market value, as determined
under the Plan, on the date of exercise either equal to the Purchase Price
or in combination with cash or a certified check to equal the Purchase
Price;
(c) by receipt of the Purchase Price in cash from a broker, dealer
or other "creditor" as defined by Regulation T issued by the Board of
Governors of the Federal Reserve System following delivery by the Optionee
to the Committee of instructions in a form acceptable to the Committee
regarding delivery to such broker, dealer or other creditor of that number
of Option Shares with respect to which the Option is exercised; provided,
however, that any such cashless exercise must be effected in a manner
consistent with the restrictions of Section 13(k) of the Securities
Exchange Act of 1934 (Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002); or
(d) or any combination of the foregoing.
3. Vested Option Shares. The Option Shares shall become vested in the
manner provided in the Vesting Schedule attached hereto. In the event of a
Change in Control, including a
1
Change in Control approved by the Board of Directors, the Option Shares shall
become fully vested on a date determined by the Committee, which date shall be
no later than immediately prior to the effective date of the Change in Control.
4. Withholding. The Optionee must satisfy any federal, state and local, if
any, withholding taxes imposed by reason of the exercise of the Option either by
paying to the Company the full amount of the withholding obligation (i) in cash,
(ii) by electing, irrevocably and in writing in substantially the form attached
hereto as Exhibit 2 (a "Withholding Election"), to have the actual number of
shares of Stock issuable upon exercise reduced by the smallest number of whole
shares of Stock which, when multiplied by the Fair Market Value of the Stock as
of the date the Option is exercised, is sufficient to satisfy the amount of the
withholding tax; or (iii) by any combination of the above. The Optionee may make
a Withholding Election only if the following conditions are met:
(a) the Withholding Election is made on or prior to the date on
which the amount of tax required to be withheld is determined (the "Tax
Date") by executing and delivering to the Company a properly completed
Withholding Election; and
(b) any Withholding Election made will be irrevocable; however, the
Committee may, in its sole discretion, disapprove and give no effect to
any Withholding Election.
5. Rights as Shareholder. Until the stock certificates reflecting the
Option Shares accruing to the Optionee upon exercise of the Option are issued to
the Optionee, the Optionee shall have no rights as a shareholder with respect to
such Option Shares. The Company shall make no adjustment for any dividends or
distributions or other rights on or with respect to Option Shares for which the
record date is prior to the issuance of that stock certificate, except as the
Plan or the attached Award otherwise provides.
6. Restriction on Transfer of Option and of Option Shares. Except as
otherwise expressly permitted by the Committee in writing, the Option evidenced
hereby is nontransferable other than by will or the laws of descent and
distribution and shall be exercisable during the lifetime of the Optionee only
by the Optionee (or in the event of his/her disability, by his/her personal
representative) and after his/her death, only by his/her legatee or the executor
of his/her estate.
7. Changes in Capitalization.
(a) Except as provided in Subsection (b) below, if the number of
shares of Stock shall be increased or decreased by reason of a subdivision
or combination of shares of Stock, the payment of an ordinary stock
dividend in shares of Stock or any other increase or decrease in the
number of shares of Stock outstanding effected without receipt of
consideration by the Company, an appropriate adjustment shall be made by
the Committee, in a manner determined in its sole discretion, in the
number and kind of Option Shares and in the Exercise Price.
(b) In the event of a merger, consolidation, reorganization,
extraordinary dividend or other change in the corporate structure of the
Company, including a Change in Control, or tender offer for shares of
Stock, the Company shall provide for an appropriate adjustment to the
Option or provide for the substitution of a new option which adjustment or
substitution shall be consistent with the event requiring the adjustment
or substitution; provided, however, in the event the Company will not be
the surviving entity as a result of
2
the event and the surviving entity does not agree to the adjustment or
substitution, the Committee may elect to terminate the Option Period as of
the date of the Change in Control in consideration of the payment to the
Optionee of the sum of the difference between the then Fair Market Value
of the Stock and the Exercise Price for each Option Share as to which the
Option has not been exercised as of the date of the Change in Control.
(c) The existence of the Plan and the Option granted pursuant to
this Agreement shall not affect in any way the right or power of the
Company to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any
merger or consolidation of the Company, any issue of debt or equity
securities having preferences or priorities as to the Stock or the rights
thereof, the dissolution or liquidation of the Company, any sale or
transfer of all or any part of its business or assets, or any other
corporate act or proceeding. Any adjustment pursuant to this Section may
provide, in the Committee's discretion, for the elimination without
payment therefor of any fractional shares that might otherwise become
subject to any Option.
8. Special Limitation on Exercise. No purported exercise of the Option
shall be effective without the approval of the Committee, which may be withheld
to the extent that the exercise, either individually or in the aggregate
together with the exercise of other previously exercised stock options and/or
offers and sales pursuant to any prior or contemplated offering of securities,
would, in the sole and absolute judgment of the Committee, require the filing of
a registration statement with the United States Securities and Exchange
Commission or with the securities commission of any state. If a registration
statement is not in effect under the Securities Act of 1933, or any applicable
state securities law with respect to shares of Stock purchasable or otherwise
deliverable under the Option, the Optionee (a) shall deliver to the Company,
prior to the exercise of the Option or as a condition to the delivery of Stock
pursuant to the exercise of an Option exercise, such information,
representations and warranties as the Company may reasonably request in order
for the Company to be able to satisfy itself that the Option Shares are being
acquired in accordance with the terms of an applicable exemption from the
securities registration requirements of applicable federal and state securities
laws and (b) shall agree that the shares of Stock so acquired will not be
disposed of except pursuant to an effective registration statement, unless the
Company shall have received an opinion of counsel that such disposition is
exempt from such requirement under the Securities Act of 1933 and any applicable
state securities law.
9. Legend on Stock Certificates. Certificates evidencing the Option
Shares, to the extent appropriate at the time, shall have noted conspicuously on
the certificates a legend intended to give all persons full notice of the
existence of the conditions, restrictions, rights and obligations set forth
herein and in the Plan.
10. Governing Laws. This Award and the Terms and Conditions shall be
construed, administered and enforced according to the laws of the State of
Delaware; provided, however, the Option may not be exercised except in
compliance with exemptions available under applicable state securities laws of
the state in which the Optionee resides and/or any other applicable securities
laws.
11. Successors. This Award and the Terms and Conditions shall be binding
upon and inure to the benefit of the heirs, legal representatives, successors
and permitted assigns of the Optionee and the Company.
3
12. Notice. Except as otherwise specified herein, all notices and other
communications under this Award shall be in writing and shall be deemed to have
been given if personally delivered or if sent by registered or certified United
States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of the recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
13. Severability. In the event that any one or more of the provisions or
portion thereof contained in the Award and these Terms and Conditions shall for
any reason be held to be invalid, illegal or unenforceable in any respect, the
same shall not invalidate or otherwise affect any other provisions of the Award
and these Terms and Conditions, and the Award and these Terms and Conditions
shall be construed as if the invalid, illegal or unenforceable provision or
portion thereof had never been contained herein.
14. Entire Agreement. Subject to the terms and conditions of the Plan, the
Award and the Terms and Conditions express the entire understanding of the
parties with respect to the Option.
15. Violation. Any transfer, pledge, sale, assignment, or hypothecation of
the Option or any portion thereof shall be a violation of the terms of the Award
or these Terms and Conditions and shall be void and without effect.
16. Headings and Capitalized Terms. Section headings used herein are for
convenience of reference only and shall not be considered in construing the
Award or these Terms and Conditions. Capitalized terms used, but not defined, in
either the Award or the Terms and Conditions shall be given the meaning ascribed
to them in the Plan.
17. Specific Performance. In the event of any actual or threatened default
in, or breach of, any of the terms, conditions and provisions of the Award and
these Terms and Conditions, the party or parties who are thereby aggrieved shall
have the right to specific performance and injunction in addition to any and all
other rights and remedies at law or in equity, and all such rights and remedies
shall be cumulative.
18. No Right to Continued Employment. Neither the establishment of the
Plan nor the award of Option Shares hereunder shall be construed as giving the
Optionee the right to continued service as an employee of the Company.
4
[NAME OF OPTIONEE]
SCHEDULE 1
VERILINK CORPORATION
NON-QUALIFIED STOCK OPTION AWARD
Vesting Schedule
"Vested Option Shares" means only that percentage of the number of shares
of Stock subject to the Option as to which the Option becomes exercisable after
the Vesting Commencement Date following completion of a continuous period of
service indicated in the schedule below.
The Option will vest as to twenty-five percent (25%) of the Option Shares
on the first anniversary of the Vesting Commencement Date and then an
additional 1/48th of the Option Shares shall become Vested Option Shares
per month thereafter until the fourth anniversary of the Vesting
Commencement Date at which point all Option Shares will be Vested Option
Shares; provided, however, that the vesting of Option Shares shall
continue only if the Optionee remains at all times in the continuous
service of the Company or any Subsidiary from and after the Vesting
Commencement Date.
For purposes of this Vesting Schedule, the Vesting Commencement Date is
_______________.
1. Construction.
The right of Optionee to vest in Option Shares shall cease upon the
termination of his or her service as an employee of the Company or a Subsidiary,
whether by reason of death, Disability or otherwise and, thereafter, no further
shares shall become Vested Option Shares; and the Option shall be exercisable,
only as to Vested Option Shares determined as of the date of the termination of
service, during the remaining Option Period, as specified in the Award.
Schedule 1 - Page 1
EXHIBIT 1
NOTICE OF EXERCISE OF
STOCK OPTION TO PURCHASE
COMMON STOCK OF
VERILINK CORPORATION
Name ________________________
Address _____________________
_____________________________
Date ________________________
Verilink Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Secretary
Re: Exercise of Non-Qualified Stock Option
Gentlemen:
Subject to acceptance hereof by Verilink Corporation (the "Company")
pursuant to the provisions of the Verilink Corporation 2002 Stock Incentive Plan
(the "Plan") I hereby give notice of my election to exercise options granted to
me to purchase ______________ shares of common stock $.01 par value ("Common
Stock"), of the Company under the Non-Qualified Stock Option Award (the "Award")
dated as of ____________. The purchase shall take place as of __________, 200__
(the "Exercise Date").
On or before the Exercise Date, I will pay the applicable purchase price
as follows:
[ ] by delivery of cash or a certified check for $___________ for
the full purchase price payable to the order of Verilink
Corporation.
[ ] by delivery of cash or a certified check for $___________
representing a portion of the purchase price with the balance to
consist of shares of Common Stock that I have owned for at least six
months and that are represented by a stock certificate I will
surrender to the Company with my endorsement. If the number of
shares of Common Stock represented by such stock certificate exceeds
the number to be applied against the purchase price, I understand
that a new stock certificate will be issued to me reflecting the
excess number of shares.
[ ] by delivery of a stock certificate representing shares of Common
Stock that I have owned for at least six months which I will
surrender to the Company with my endorsement as payment of the
purchase price. If the number of shares of Common Stock represented
by such certificate exceeds the number to be applied against the
purchase price, I understand that a new certificate will be issued
to me reflecting the excess number of shares.
Exhibit 1 - Page 1
[ ] by delivery of the purchase price by _________________________,
a broker, dealer or other "creditor" as defined by Regulation T
issued by the Board of Governors of the Federal Reserve System. I
hereby authorize the Company to issue a stock certificate for the
number of shares indicated above in the name of said broker, dealer
or other creditor or its nominee pursuant to instructions received
by the Company and to deliver said stock certificate directly to
that broker, dealer or other creditor (or to such other party
specified in the instructions received by the Company from the
broker, dealer or other creditor) upon receipt of the purchase
price.
The required federal, state and local income tax withholding obligations,
if any, on the exercise of the Award shall also be paid on or before the
Exercise Date in the manner provided in the Withholding Election previously
tendered or to be tendered to the Company no later than the Exercise Date.
As soon as the stock certificate is registered in my name, please deliver
it to me at the above address.
If the Common Stock being acquired is not registered for issuance to the
Optionee pursuant to an effective registration statement on Form S-8 (or
successor form) filed under the Securities Act of 1933, as amended (the "1933
Act"), I understand and agree that I may be required to make such additional
representations, warranties, covenants, and agreements with the Company as the
Company may reasonably request.
I understand that the certificates representing the shares being purchased
by me in accordance with this notice shall bear a legend referring to the
foregoing covenants, representations and warranties and restrictions on
transfer, and I agree that a legend to that effect may be placed on any
certificate which may be issued to me as a substitute for the certificates being
acquired by me in accordance with this notice.
Very truly yours,
____________________________
AGREED TO AND ACCEPTED:
VERILINK CORPORATION
By: ___________________________________
Title: ________________________________
Number of Shares
Exercised: ____________________________
Number of Shares
Remaining: ____________________________ Date: ________________
Exhibit 1 - Page 2
EXHIBIT 2
NOTICE OF WITHHOLDING ELECTION
VERILINK CORPORATION 2002 STOCK INCENTIVE PLAN
TO: Verilink Corporation
Attn: Corporate Secretary
FROM: ___________________________________
RE: Withholding Election
This election relates to the Option identified in Paragraph 3 below. I
hereby certify that:
(1) My correct name and social security number and my current address
are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the Option.
[ ] the legal representative of the estate of the original recipient
of the Option.
[ ] a legatee of the original recipient of the Option.
[ ] the legal guardian of the original recipient of the Option.
(3) The Option pursuant to which this election relates was issued under
the Verilink Corporation 2002 Stock Incentive Plan in the name of
_____________________ for the purchase of a total of __________
shares of Common Stock. This election relates to _____________
shares of Common Stock issuable upon exercise of the Option (the
"Stock"), provided that the numbers set forth above shall be deemed
changed as appropriate to reflect the applicable Plan provisions.
(4) In connection with any exercise of the Option with respect to Stock,
I hereby elect:
[ ] to have certain of the shares otherwise issuable pursuant to
the exercise withheld by the Company for the purpose of having
the value of the shares applied to pay federal, state, and
local, if any, taxes arising from the exercise.
[ ] to tender shares held by me for a period of at least six (6)
months prior to the exercise of the Option for the purpose of
having the value of the shares applied to pay such taxes.
The shares to be withheld or tendered, as the case may be, shall
have, as of the Tax Date applicable to the exercise, a fair market
value equal to the minimum statutory tax withholding requirement
under federal, state and local law in connection with the exercise.
Exhibit 2 - Page 1