EXHIBIT 10.7
CS WIRELESS SYSTEMS, INC.
No. 001
AMENDED AND RESTATED NON-QUALIFIED STOCK 0PTION
THIS AGREEMENT, made as of the grant date indicated in Section 3 below, and
between CS Wireless Systems, Inc. (the "Company"), and the undersigned
individual (the "Optionee"), pursuant to the 1996 CS Wireless Systems, Inc.
Incentive Stock Plan (the "Plan"). (Terms not defined herein shall have the same
meaning as in the Plan.)
WHEREAS, the Optionee is an eligible employee of the Company and the Company
through the Plan's Committee has approved the grant of Non-Qualified Stock
Options ("Options") under the Plan to the Optionee.
Now, THEREFORE, in consideration of the terms and conditions of this
Agreement and pursuant to the Plan, the parties agree as follows:
1. Grant of Options. The Company hereby grants to the Optionee the right
and option to purchase from the Company, at the exercise price set
forth on Section 3 below, all or any part of the aggregate number of
common shares of the Company, as such Common Shares are presently
constituted (the "Common Shares"), set forth on said Section 3.
2. Terms and Conditions. It is understood and agreed that the Option
evidenced hereby is subject to the provisions of the Plan (which are
incorporated herein by reference) and the following terms and
conditions:
A. Expiration Date: The Option evidenced hereby shall expire on the
date specified on Section 3 below. Except for unvested options
pursuant to the vesting schedule below, which shall expire
immediately on a termination of employment, the Option shall not
expire at an earlier date upon termination of Optionee's
employment, unless such termination is for cause, as defined in
the Plan.
B. Exercise of Option. The Option evidenced hereby shall be
exercisable from time to time by submitting the appropriate
Notice of Exercise form referred to below ten days prior to the
date of exercise specifying the number of shares for which the
Option is being exercised, addressed as follows:
CS Wireless Systems, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
-2-
(1) Cash Only Exercise -- submitting a "Notice of Cash Exercise"
accompanied by the full cash purchase price of the exercised shares;
or
(2) Cashless Exercise -- provided the Company has adopted such a
procedure at that time, submitting an "Irrevocable Letter of
Instruction" and "Cashless Exercise and Sale Form" authorizing the
delivery for sale of the exercised Common Shares, or
(3) Combination -- tendering a combination of (1) and (2) above.
Withholding Taxes. Without regard to the method of exercise and payment,
the Optionee shall pay to the Company, upon notice of the amount due, any
withholding taxes payable with respect to such exercise.
Vesting Schedule. The Options will become vested and exercisable as
follows: Options to purchase 107,527 Common Shares will vest and become
exercisable immediately. Options to purchase the remaining 107,527 Common
Shares will vest and become exercisable in twenty (20) equal monthly
installments on the last day of each month commencing on May 1, 1996.
Notwithstanding the foregoing threshold requirements, the unvested portion
of this Option shall become fully exercisable upon the happening of an
"Acceleration Event", as defined in Exhibit A.
C. Compliance with Laws and Regulations. The Option evidenced
hereby is subject to restrictions imposed at any time on the exercise or
delivery of shares in violation of the Bylaws of the Company or of
any law or governmentaI regulation that the Company may find to be
valid and applicable
D. Interpretation. Optionee hereby acknowledges that this Agreement is
governed by the Plan, a copy of which Optionee hereby acknowledges having
received, and by such administrative rules and regulations relative to the
Plan and not inconsistent therewith as may be adopted and amended from
time by the Committee (the "Rules"). Optionee agrees to be bound by the
terms and provisions of the Plan and the Rules.
-3-
E. Transfer Restrictions. In addition to the restrictions on
transferability imposed by the Plan and the Incentive Plan,
this Option may not be transferable other than by will or the
laws of descent and distribution.
3. Option Data.
Optionee's Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Number of Common Shares
Subject to this Option: 215,054
Grant Date: February 23, 1996
Exercise Price Per Share: $9.40
Expiration Date. February 22, 2006
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its authorized officer, as of the Grant Date identified in
Section 3.
Agreed to: CS Wireless Systems, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/
-------------------------- ---------------------------
Optionee: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name:
Title:
Date: 5/21/96
----------------------
EXHIBIT A
For purposes of this Agreement, an Acceleration Event shall be deemed to
have occurred if after the date of the closing of the initial public offering by
the Company (i) a report on Schedule 13D shall be filed with the Securities and
Exchange Commission pursuant to Section 13(d) of the Securities Exchange Act of
1934, as amended (the "Act"), disclosing that any person other than the Company
or any employee benefit plan sponsored by the Company, is the beneficial owner
(as the term is defined in Rule 13d-3 under the Act) directly or indirectly, of
thirty-five percent or more of the total voting power represented by the
Company's then outstanding Voting Securities (calculated as provided in
paragraph (d) of Rule 13d-3 under the Act in the case of rights to acquire
Voting Securities); or (ii) any person, other than the Company or any employee
benefit plan sponsored by the Company, shall purchase shares pursuant to a
tender offer or exchange offer to acquire any voting Securities of the Company
(or securities convertible into such Voting Securities) for cash, securities or
any other consideration, provided that after consummation of the offer, the
person in question is the beneficial owner directly or indirectly, of
thirty-five percent or more of the total voting power represented by the
Company's then outstanding Voting Securities (all as calculated under clause
(i)); or (iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation (other than a merger of the Company in which
holders of Common Shares of the Company inunediately prior to the merger have
the same proportionate ownership of Common Shares of the surviving corporation
immediately after the merger as immediately before), or pursuant to which Common
Shares of the Company would be converted into cash, securities or other
property, or (B) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all the assets of
the Company; or (iv) there shall have been a change in the composition of the
Board of Directors of the Company at any time during any consecutive twenty four
month period such that "continuing directors" cease for any reason to constitute
at least a 51% majority of the Board. For purposes of this clause, "continuing
directors" means those members of the Board who either were directors at the
beginning of such consecutive twenty-four month period or were elected by or on
the nomination or recommendation of at least a 51% majority of the then-existing
Board. So long as there has not been an Acceleration Event within the meaning of
clause (iv), the Board of Directors may adopt by a 51% majority vote of the
"continuing directors" a resolution to the effect that an event described in
clauses (i) or (ii) shall not constitute an Acceleration Event.