1
EXHIBIT 99.2
NUSPEED, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT (the "Agreement"), made on the date set forth below, by
and between NUSPEED, INC., a Delaware corporation (the "Company"), and the
undersigned ("Optionee"), pursuant to the Company's 2000 Stock Incentive Plan
(the "Plan").
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and Optionee hereby agree as follows:
1. GRANT OF OPTION
The Company hereby grants to Optionee, on the date set forth below, the
right and option (hereinafter called the "Option") to purchase all or any part
of an aggregate of the number of shares (the "Shares") of Common Stock, par
value $0.01 per share (the "Common Stock"), set forth below at the price per
share set forth below on the terms and conditions set forth in this Agreement
and in the Plan. This Option is intended to be an incentive stock option within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"). The Option shall terminate at the close of business five (5) years from
the date hereof; or such shorter period as is prescribed herein.
2. DURATION AND EXERCISABILITY
(a) The Option shall terminate at the close of business five(5) years
from the date hereof, or such shorter period as is prescribed herein. Subject to
the terms and conditions set forth herein, this Option shall be exercisable by
Optionee as follows:
1/3 OF THE TOTAL SHARES ONE YEAR FROM THE DATE OF GRANT OF THIS OPTION
AND 1/24 OF THE REMAINING SHARES ON THE FINAL DAY OF EACH OF THE
TWENTY-FOUR MONTHS THEREAFTER.
(b) During the lifetime of Optionee, the Option shall be exercisable
only by Optionee and shall not be assignable or transferable by Optionee, other
than by will or the laws of descent and distribution.
(c) Optionee understands that to the extent that the aggregate fair
market value (determined at the time the Option was granted) of the shares of
Common Stock with respect to which all incentive stock options within the
meaning of Section 422 of the Code are exercisable for the first time by
Optionee during any calendar year exceed $100,000, in accordance with Section
422(d) of the Code such options shall be treated as options that do not qualify
as incentive stock options.
(d) Notwithstanding Section 2(a), if the Company is to be consolidated
with or acquired by another person or entity in a merger, sale of all or
substantially all of the Company's assets or stock or otherwise (an
"Acquisition"), the Committee or the board of directors of any entity assuming
the obligations of the Company hereunder (the "Successor Board") shall, with
respect to outstanding Options or shares acquired upon exercise of any Option,
take one or more of the following actions: (i) make appropriate provision for
the continuation of such options by
2
substituting on an equitable basis for the shares then subject to such Options
the consideration payable with respect to the outstanding shares of Common Stock
in connection with the Acquisition; (ii) accelerate the date of exercise of such
Options or of any installment of any such Options; (iii) upon written notice to
the Participants, provide that all Options must be exercised, to the extent then
exercisable, within a specified number of days of the date of such notice, at
the end of which period the Options shall terminate; (iv) terminate all Options
in exchange for a cash payment equal to the excess of the fair market value of
the shares subject to such Options (to the extent then exercisable) over the
exercise price thereof; or (v) in the event of a stock sale, require that the
Participant sell to the purchaser to whom such stock sale is to be made, all
shares previously issued to such Participant upon exercise of any Option, at a
price equal to the portion of the net consideration from such sale which is
attributable to such shares.
3. EFFECT OF TERMINATION OF EMPLOYMENT
(a) In the event that Optionee shall cease to be employed by the Company
or its subsidiaries, if any, for any reason other than termination for cause or
Optionee's death or disability (as such term is defined in Section 3(c) hereof),
Optionee shall have the right to exercise the Option at any time within 90 days
after such termination of employment to the extent of the full number of shares
Optionee was entitled to purchase under the Option on the date of termination;
provided, however, that this Option shall not be exercisable after the
expiration of the term of the Option.
(b) In the event that Optionee shall cease to be employed by the Company
or its subsidiaries, if any, upon termination for cause, the Option shall be
terminated as of the date of the act giving rise to such termination.
Termination for cause shall mean termination of the Optionee's employment with
the Company for the following acts: dishonesty, fraud, conviction or confession
of a felony or of a crime involving moral turpitude, destruction or theft of the
Company's property, physical attack on a fellow employee, willful malfeasance or
gross negligence, gross or willful misconduct materially injurious to the
Company (as reasonably determined by the Company), participation in fraud
against the Company, entering into competition against the Company, and/or a
material breach or threatened material breach of any agreements with the
Company, including, but not limited to, [Sales-Optionee Agreement,
Management-Optionee Agreement and Data Security Agreement], as the same may be
amended from time to time.
(c) If Optionee shall die while this Option is still exercisable
according to its terms, or if employment is terminated because Optionee has
become disabled (within the meaning of Code Section 22(e)(3)) while in the
employ of the Company or a subsidiary, if any, and Optionee shall not have fully
exercised the Option, such Option may be exercised at any time within 12 months
after Optionee's death or date of termination of employment for disability by
Optionee, personal representatives or administrators, or guardians of Optionee,
as applicable, or by any person or persons to whom the Option is transferred by
will or the applicable laws of descent and distribution, to the extent of the
full number of shares Optionee was entitled to purchase under the Option on the
date of death, termination of employment, if earlier, or date of termination for
such disability and subject to the condition that no Option shall be exercisable
after the expiration of the term of the Option.
2
3
4. MANNER OF EXERCISE
(a) The Option may be exercised only by Optionee or other proper party
by delivering within the Option period written notice to the Company at its
principal office. The notice shall state the number of shares as to which the
Option is being exercised and be accompanied by payment in full of the Option
price for all shares designated in the notice.
(b) Optionee may pay the Option price in cash, by check (bank check,
certified check or personal check), by money order.
5. MISCELLANEOUS
(a) This Option is issued pursuant to the Company's 2000 Stock Incentive
Plan and is subject to its terms. The terms of the Plan are available for
inspection during business hours at the principal offices of the Company.
(b) This Agreement shall not confer on Optionee any right with respect
to continuance of employment by the Company or any of its subsidiaries, nor will
it interfere in any way with the right of the Company to terminate such
employment at any time. Optionee shall have none of the rights of a shareholder
with respect to shares subject to this Option until such shares shall have been
issued to Optionee upon exercise of this Option.
(c) The exercise of all or any parts of this Option shall only be
effective at such time that the sale of Common Stock pursuant to such exercise
will not violate any state or federal securities or other laws.
(d) If there shall be any change in the shares of Common Stock of the
Company through merger, consolidation, reorganization, recapitalization,
dividend in the form of stock (of whatever amount), stock split or other change
in the corporate structure of the Company, and all or any portion of the Option
shall then be unexercised and not yet expired, appropriate adjustments in the
outstanding Option shall be made by the Company, in order to prevent dilution or
enlargement of Option rights. Such adjustments shall include, where appropriate,
changes in the number of shares of Common Stock and the price per share subject
to the outstanding Option.
(e) The Company shall at all times during the term of the Option reserve
and keep available such number of shares as will be sufficient to satisfy the
requirements of this Agreement.
(f) If Optionee shall dispose of any of the shares of Common Stock of
the Company acquired by Optionee pursuant to the exercise of the Option within
two years from the date the Option was granted or within one year after the
transfer of any such shares to Optionee upon exercise of the Option, in order to
provide the Company with the opportunity to claim the benefit of any income tax
deduction which may be available to it under the circumstances, Optionee shall
promptly notify the Company of the dates of acquisition and disposition of such
shares, the number of shares so disposed of and the consideration, if any,
received for such shares. In order to comply with all applicable federal or
state income tax laws or regulations, the Company may take such action as it
deems appropriate to insure (i) notice to the Company of any disposition of
3
4
the Common Stock of the Company within the time periods described above and (ii)
that, if necessary, all applicable federal or state payroll, withholding, income
or other taxes are withheld or collected from Optionee.
(g) In order to provide the Company with the opportunity to claim the
benefit of any income tax deduction which may be available to it upon the
exercise of the Option when the Option does not qualify as an incentive stock
option within the meaning of Section 422 of the Code and in order to comply with
all applicable federal or state income tax laws or regulations, the Company may
take such action as it deems appropriate to insure that, if necessary, all
applicable federal or state payroll, withholding, income or other taxes are
withheld or collected from Optionee. Optionee may elect to satisfy his federal
and state income tax withholding obligations upon exercise of this option by (i)
having the Company withhold a portion of the shares of Common Stock otherwise to
be delivered upon exercise of such option having a fair market value equal to
the amount of federal and state income tax required to be withheld upon such
exercise, in accordance with such rules as the Company may from time to time
establish, or (ii) delivering to the Company shares of its Common Stock other
than the shares issuable upon exercise of such option with a fair market value
equal to such taxes, in accordance with such rules.
No. of Shares Subject to Option:
------------------
Exercise Price per Share: $
-------------------------
Date of Grant:
-------------------------------------
NUSPEED, INC.
By
--------------------------------------
Its
-------------------------------------
-----------------------------------------
[Name of Optionee]
-----------------------------------------
[Signature of Optionee]
4