EXHIBIT 10.8
NEXTGEN COMMUNICATIONS CORPORATION
2001 STOCK PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan (defined
below) shall have the same defined meanings in this Nextgen Communications
Corporation 2001 Stock Plan Stock Option Agreement (this "STOCK OPTION
AGREEMENT").
I. NOTICE OF STOCK OPTION GRANT
The undersigned Optionee has been granted an Option to purchase Common
Stock of Nextgen Communications Corporation (formerly U S Industrial Services,
Inc.) (the "COMPANY"), subject to the terms and conditions of the Company's 2001
Stock Plan (the "PLAN") and this Stock Option Agreement, as follows:
Optionee ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Date of Grant February 1, 2002
Vesting Commencement Date February 1, 2002
Exercise Price per Share $1.25
Total Number of Shares Granted 150,000
Total Exercise Price $187,500
Type of Option: [X] Incentive Stock Option
[ ] Nonstatutory Stock Option
Term/Expiration Date: February 1, 2012
Vesting Schedule: The Optionee shall only be able to exercise the
Option (defined below) in 150-Share increments, with one (1)150-Share increment
becoming exercisable for each communications tower that is purchased by the
Company or the Company's affiliate during the Optionee's employment with the
Company or engagement as a Service Provider. If a Change of Control of the
Company shall occur, as defined in the Plan, then all one hundred fifty thousand
(150,000) shares granted will be fully vested and exercisable. The vesting of
the Shares shall be in accordance with the Plan. If Optionee Executive is
terminated without Cause, or Executive Optionee terminates employment with the
Company with Good Reason, as defined in the Executive Employment Agreement
between the Company and the Optionee executed effective February 1, 2001, then
all one hundred fifty thousand (150,000) shares granted to the Optionee shall
will be fully vested and exercisable by Optionee.
Termination Period: The vested portion of this Option shall be
exercisable for three hundred sixty (360) days after Optionee ceases to be a
Service Provider. Upon Optionee's death or disability, the vested portion of
this Option may be exercised for such longer period as provided in the Plan. In
no event may Optionee exercise this Option after the Term/Expiration Date as
provided above.
II. AGREEMENT
1. Grant of Option.
(a) The Administrator of the Plan hereby grants to the
Optionee named in the Notice of Stock Option Grant (the "NOTICE") in Section I.
above (the "OPTIONEE"), an option (the "OPTION") to purchase the number of
Shares set forth in the Notice, at the exercise price per Share set forth in the
Notice (the "EXERCISE PRICE"), and subject to the terms and conditions of the
Plan, which is incorporated herein by reference. Subject to Section 14(c) of the
Plan, in the event of a conflict between the terms and conditions of the Plan
and this Stock Option Agreement, the terms and conditions of the Plan shall
prevail except with respect to the terms of the Vesting Schedule as provided in
Section I. above.
(b) If designated in the Notice of Stock Option Grant as an
Incentive Stock Option ("ISO"), this Option is intended to qualify as an
Incentive Stock Option as defined in Section 422 of the Code. Nevertheless, to
the extent that it exceeds the $100,000 rule of Code Section 422(d), this Option
shall be treated as a Nonstatutory Stock Option ("NSO").
2. Exercise of Option.
(a) Right to Exercise. This Option shall be exercisable during
its term in accordance with the Vesting Schedule set out in the Notice of Stock
Option Grant and with the applicable provisions of the Plan and this Stock
Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by
delivery of an exercise notice in the form attached as Exhibit A (the "EXERCISE
NOTICE") which shall state the election to exercise the Option, the number of
Shares with respect to which the Option is being exercised (the "EXERCISED
SHARES"), and such other representations and agreements as may be required by
the Company. The Exercise Notice shall be accompanied by payment of the
aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed
to be exercised upon receipt by the Company of such fully executed Exercise
Notice accompanied by the aggregate Exercise Price.
3. Optionee's Representations. In the event the Shares have not been
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
at the time this Option is exercised, the Optionee shall, if required by the
Company, concurrently with the exercise of all or
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any portion of this Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit B.
4. Lock-Up Period. Optionee hereby agrees that, if so requested by the
Company or any representative of the underwriters (the "MANAGING UNDERWRITER")
in connection with any registration of the offering of any securities of the
Company under the Securities Act, Optionee shall not sell or otherwise transfer
any Shares or other securities of the Company during the 180-day period (or such
other shorter or longer period as may be requested in writing by the Managing
Underwriter and agreed to in writing by the Company) (the "MARKET STANDOFF
PERIOD") following the effective date of a registration statement of the Company
filed under the Securities Act. Such restriction shall apply to any registration
statement of the Company to become effective under the Securities Act that
includes securities to be sold on behalf of the Company to the public in an
underwritten public offering under the Securities Act. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such Market Standoff Period.
5. Method of Payment. Payment of the aggregate Exercise Price shall be
by any of the following, or a combination thereof, at the election of the
Optionee
(a) cash or check;
(b) Shares surrendered to the Company in a Cashless Exercise;
or
(c) surrender of other Shares that, (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, and (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
6. Restrictions on Exercise. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any Applicable
Law.
7. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by Optionee. The terms of
the Plan and this Stock Option Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
8. Term of Option. This Option may be exercised only within the term
set out in the Notice, and may be exercised during such term only in accordance
with the Plan and the terms of this Stock Option Agreement.
9. Entire Agreement; Governing Law; Venue. The Plan is incorporated
herein by reference. The Plan and this Stock Option Agreement constitute the
entire agreement of the
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parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to the
Optionee's interest except by means of a writing signed by the Company and
Optionee. This Stock Option Agreement is governed by the internal substantive
laws but not the choice of law rules of the State of Delaware. Venue for any
action brought hereunder shall be proper exclusively in ▇▇▇▇▇▇ County, Texas.
10. No Guarantee of Continued Service. OPTIONEE ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER IN ACCORDANCE WITH THE OPTIONEE'S
EXECUTIVE EMPLOYMENT AGREEMENT, IF ANY, OR OTHERWISE (NOT THROUGH THE ACT OF
BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE
FURTHER ACKNOWLEDGES AND AGREES THAT THIS STOCK OPTION AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL
NOT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME IN
ACCORDANCE WITH THE OPTIONEE'S EXECUTIVE EMPLOYMENT AGREEMENT, IF ANY, OR
OTHERWISE AT ANY TIME, WITH OR WITHOUT CAUSE.
11. Optionee acknowledges receipt of a copy of the Plan and represents
that he or she is familiar with the terms and provisions thereof, and hereby
accepts this Option subject to all of the terms and provisions thereof except
where such terms and provisions are in conflict with this Stock Option Agreement
with respect to the Vesting Schedule provided in Section I. herein. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully
understands all provisions of the Option. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
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"COMPANY" "OPTIONEE"
NEXTGEN COMMUNICATIONS
CORPORATION
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
Address:
2148 ▇▇▇▇▇
Houston, TX 77030
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EXHIBIT A
2001 STOCK PLAN
EXERCISE NOTICE
Nextgen Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTN: Secretary
1. Exercise of Option. Effective as of today, _______________, 20___,
the undersigned ("Optionee") hereby elects to exercise Optionee's option to
purchase ________________ shares (the "SHARES") of the Common Stock of Nextgen
Communications Corporation (formerly U S Industrial Services, Inc.) (the
"COMPANY") under and pursuant to the Company's 2001 Stock Plan (the "PLAN") and
the Nextgen Communications Corporation 2001 Stock Plan Stock Option Agreement
dated February 1, 2002 (the "STOCK OPTION AGREEMENT").
2. Delivery of Payment. Optionee herewith delivers to the Company the
full purchase price of the Shares, as set forth in the Stock Option Agreement.
3. Representations of Optionee. Optionee acknowledges that Optionee has
received, read and understood the Plan and the Stock Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. Rights as Stockholder. Until the issuance of the Shares (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company), no right to vote or receive dividends
or any other rights as a stockholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares shall be issued to
the Optionee as soon as practicable after the Option is exercised. No adjustment
shall be made for a dividend or other right for which the record date is prior
to the date of issuance except as provided in Section 12 of the Plan.
5. Tax Consultation. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultants Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
6. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. Optionee understands and agrees that the Company
shall cause the legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing ownership of the Shares
together with any other legends that may be required by the Company or by state
or federal securities laws:
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN
THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices. Optionee agrees that, in order to
ensure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i)
to transfer on its books any Shares that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement or (ii) to treat as
owner of such Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Shares shall have been so
transferred.
7. Successors and Assigns. The Company may assign any of its rights
under this Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company. Subject to
the restrictions on transfer herein set forth, this Agreement shall be binding
upon Optionee and his or her heirs, executors, administrators, successors and
assigns.
8. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Administrator, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Administrator shall be final and binding on
all parties.
9. Governing Law; Venue. This Agreement is governed by the internal
substantive laws, but not the choice of law rules, of Delaware. Venue for any
action brought hereunder shall be proper exclusively in ▇▇▇▇▇▇ County, Texas.
10. Entire Agreement. The Plan and Stock Option Agreement are
incorporated herein by reference. This Agreement, the Plan, the Stock Option
Agreement and the Investment Representation Statement constitute the entire
agreement of the parties with respect to the subject
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matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to the Optionee's interest except by
means of a writing signed by the Company and Optionee.
Submitted by: Accepted by:
NEXTGEN COMMUNICATIONS CORPORATION
By:
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Name:
-------------------------
Title:
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
COMPANY: Nextgen Communications Corporation
SECURITY: Common Stock
AMOUNT: $
-------------------------
DATE:
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In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
1. Optionee is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Securities. Optionee
is acquiring these Securities for investment for Optionee's own account only and
not with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "SECURITIES
ACT").
2. Optionee acknowledges and understands that the Securities
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Optionee's investment intent as expressed herein. In this connection,
Optionee understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Optionee's representation was predicated solely upon a present intention to hold
these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Securities, or for a period of one year or any other fixed
period in the future. Optionee further understands that the Securities must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available. Optionee further
acknowledges and understands that the Company is under no obligation to register
the Securities. Optionee understands that the certificate evidencing the
Securities will be imprinted with a legend that prohibits the transfer of the
Securities unless they are registered or such registration is not required in
the opinion of counsel satisfactory to the Company and any other legend required
under applicable state securities laws.
3. Optionee is familiar with the provisions of Rule 144,
promulgated under the Securities Act, which, in substance, permits limited
public resale of "restricted securities" acquired, directly or indirectly from
the issuer thereof, in a non-public offering subject to the satisfaction of
certain conditions. The Securities may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than one year after the later of the date the Securities were
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sold by the Company or the date the Securities were sold by an affiliate of the
Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the
Securities less than two years, the satisfaction of certain other conditions.
4. Optionee further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the Securities and Exchange Commission has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
Optionee understands that no assurances can be given that any such other
registration exemption will be available in such event.
"OPTIONEE"
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Date:
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