EXHIBIT 10.8
SPEEDCOM WIRELESS INTERNATIONAL CORPORATION
NON-QUALIFIED STOCK OPTION PLAN
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THIS INSTRUMENT is made effective this 1st day of July, 1998, by
SPEEDCOM WIRELESS INTERNATIONAL CORPORATION, a Florida corporation (the
"Corporation").
1. Purpose of Plan. This Non-Qualified Stock Option Plan (the "Plan"),
is intended to encourage ownership of shares of the Corporation, by key
employees of the Corporation and its subsidiaries and to provide additional
incentive for them to promote the success of the business.
2. Shares Subject to Plan. There will be reserved for use upon the
exercise of options to be granted from time to time under the Plan ("Options"),
an aggregate of 950,000 Common Shares, of the par value of $.001 per share (the
"Common Shares"), of the Corporation, which shares may be in whole or in part,
as the Board of Directors of the Corporation (the "Board of Directors"), shall
from time to time determine, authorized but unissued Common Shares or issued
Common Shares which shall have been reacquired by the Corporation. For purposes
of the Plan, the "Plan Year" shall be the 12-month period commencing July 1 and
ending on June 30 of the following year. If an Option shall expire or terminate
for any reason without having been exercised in full, the unpurchased shares
covered thereby shall (unless the Plan shall have been terminated) be added to
the shares otherwise available for Options which may be granted in accordance
with the terms of the Plan.
3. Administration of Plan. The Board of Directors shall appoint a Plan
Committee (the "Committee"), which shall consist of not less than 3 members of
the Board of Directors. Subject to the provisions of the Plan, the Committee
shall have plenary authority in its discretion to determine the employees of the
Corporation and its subsidiaries to whom Options shall be granted, the number of
shares to be covered by each of the Options, and the time or times at which
Options shall be granted; to interpret the Plan; and to prescribe, amend, and
rescind rules and regulations relating to it. The Board of Directors may from
time to time appoint members of the Committee in substitution for or in addition
to members previously appointed and may fill vacancies, however caused, in the
Committee. The Committee shall select one of its members as its chairman and
shall hold its meetings at such times and places as it shall deem advisable. A
majority of its members shall constitute a quorum. All action of the Committee
shall be taken by a majority of its members. Any action may be taken by a
written instrument signed by a majority of the members and action so taken shall
be fully as effective as if it had been taken by a vote of a majority of the
members at a meeting duly called and held. The Committee may appoint a
secretary, shall keep minutes of its meetings, and shall make such rules and
regulations for the conduct of its business as it shall deem advisable.
4. Granting of Options. An Option shall be granted in each Plan Year to
each employee employed for at least 90 days by the Corporation or one or more of
its subsidiaries who shall be selected by the Committee, in its complete
discretion, from the class of employees made up of those who are directors or
officers of the Corporation or of one or more of its subsidiaries and those who
are heads of departments or key employees of the Corporation or of one or more
of its subsidiaries, whether or not in any case the grantee shall have received
one or more Options hereunder in any previous Plan Year or Years.
(a) Time of Grant; Incentive Stock Option Agreement. Nothing contained
in the Plan or in any resolution adopted or to be adopted by the Board of
Directors or the stockholders of the Corporation nor any action taken by the
Committee shall constitute the granting of any Option. The granting of an Option
shall take place only when a written option agreement substantially in the form
of the Incentive Stock Option Agreement which is attached hereto and marked
Exhibit A shall have been duly executed and delivered by or on behalf of the
Corporation and by the employee to whom such Option shall be granted. Options
may be granted in a Plan Year effective in future Plan Years with appropriate
adjustment in the vesting, exercise and limitations provisions contained herein.
The terms and conditions of the Plan shall control and prevail over any
inconsistent terms and conditions of the Agreement.
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(b) Factors Considered. In making any determination as to employees to
whom Options shall be granted and as to the number of shares to be covered by
such Options, the Committee shall take into account the duties of the respective
employees, their present and potential contributions to the success of the
Corporation, and such other factors as the Committee shall deem relevant in
connection with accomplishing the purpose of the Plan.
(c) Shares Covered by Options Granted. The number of shares of the
Common Stock covered by the Option that shall be granted to any individual
employee in any Plan Year shall not exceed the remaining reserved and ungranted
Common Shares.
5. Option Prices. The purchase price of the Common Shares which shall
be covered by each Option shall be 100% the fair market value of the Common
Shares at the time of granting the Option. Such fair market value shall be
deemed to be the mean of the high and low prices of the Common Shares on
national securities exchanges on the day on which the Option shall be granted;
provided, however, if the Common Shares are not then regularly traded or if the
Committee deems such price to be not a true measure of fair market value, the
value shall be determined in good faith by the Committee in consultation with
the Corporation's independent public accountants and shall be determinative for
all purposes.
6. Terms of Options. Each option must be exercised within 5 years from
the date of the grant thereof. The term may be subject to termination prior to
the expiration of the period mentioned above, as provided otherwise herein.
7. Vesting and Exercise of Options. An Option may be exercised, at
any time or from time to time, as to any part or all of the shares which shall
be covered thereby; provided, however, that:
(a) Vesting Over 48 Months. An Option shall not be exercisable prior to
the date the employee becomes vested. An employee shall vest in that portion of
the Option and may exercise that portion of the Option as follows: (i) 25% after
12 months following date of grant; (ii) 50% after 24 months following date of
grant; (iii) 75% after 36 months following date of grant; and (iv) 100% after 48
months following date of grant.
(b) Minimum Exercise 100 Shares. An Option may not be exercised as to
less than 100 shares at any one time (or the remaining shares then purchasable
under the Option, if less than 100 shares);
(c) Continuous Employment Requirement. Except as provided otherwise in
the event of termination of employment or death of an employee, an Option may
not be exercised at any time unless the holder thereof shall have been in the
continuous employ of the Corporation and/or of one or more of its subsidiaries,
from the date of the granting of the Option to the date of its exercise;
(d) Securities Law Compliance. An Option may not be exercised unless at
the date of exercise an appropriate exemption from the registration requirements
of the federal and state securities laws is available of an appropriate
registration statement has been filed and remains in effect under the applicable
federal and state securities laws, relating to the shares covered by the Option,
and the Corporation is under no obligation to obtain any such registration or
exemption.
The purchase price of the shares as to which an Option shall be exercised shall
be paid in full in cash at the time of exercise. The Corporation shall not be
required to issue any shares unless and until it is satisfied that such issuance
shall be in accordance with all applicable federal and state securities laws,
and the Corporation may require an employee to make such representations and
warranties and impose such transfer restrictions as the Corporation may deem
desirable to comply with such laws. The holder of an Option shall not have any
of the rights of a shareholder with respect to the shares covered by his Option,
except to the extent that one or more certificates for such shares shall be
delivered to him upon the due exercise of the Option.
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8. Nontransferability. An Option shall not be transferable otherwise
than by will or the laws of descent and distribution, and an Option may be
exercised, during the lifetime of the employee, only by such employee.
9. Employee's Agreement to Serve. Each employee receiving an Option
hereby covenants, as one of the terms of the Incentive Stock Option Agreement
herein referred to, that he will remain in the employ of the Corporation or one
or more of its subsidiaries for a period of at least 12 months from the date on
which the Option shall be granted to him, and devote his full business time,
energy, and skill to the service of the Corporation or one or more of its
subsidiaries, subject to vacations, sick leaves, and military absences. Such
employment, subject to the provisions of any contract between the Corporation or
any such subsidiary and such employee, shall be at the pleasure of the employing
corporation and at such compensation as such employing corporation or
corporations shall reasonably determine. Any termination of such employee's
employment during the period which he has agreed pursuant to the foregoing
provisions of this paragraph to remain in employment that is either (a) for
cause, or (b) voluntary on the part of the employee and without the consent of
his employing corporation or corporations, shall be deemed a violation by the
employee of this instrument and his Stock Option Agreement. In the event of such
violation, any Option or Options held by him, to the extent not previously
exercised, shall immediately terminate. Nowithstanding any contrary provision
contained herein, if an employee violates any employment, confidentiality,
non-compete, non-solicitation of customers or employees, or other agreement with
the Corporation, either during (and whenever discovered) or following
termination of employment, any Option or Options held by him, to the extent not
previously exercised, shall immediately terminate.
10. Termination of Employment. In the event that the employment of an
employee to whom an Option shall have been granted shall be terminated
(otherwise than by reason of death), such Option may, subject to any covenant of
continuing employment limitation herein, be exercised (to the extent that the
employee shall have been entitled to do so at the termination of his employment)
at any time after such termination, but not more than 5 years after the date on
which such Option shall have been granted. So long as the holder of an Option
shall continue to be an employee of the Corporation or one or more of its
subsidiaries, his Option shall not be affected by any change in his duties or
position. Nothing in the Plan or in any option agreement shall confer upon any
employee any right to continue in the employ of the Corporation or of any of its
subsidiaries, or interfere in any way with the right of the Corporation or any
such subsidiary to terminate his employment at any time.
11. Death of Employee. If an employee to whom an Option shall have been
granted shall die while he shall be employed by the Corporation or one or more
of its subsidiaries or after the termination of his employment, such Option may
be exercised (to the extent that the employee shall have been entitled to do so
at the date of his death) by a legatee or legatees of the employee under his
last will, or by his personal representatives or distributees, at any time
within 12 months after his death (but not more than 5 years after the date on
which such Option shall have been granted).
12. Adjustments Upon Changes in Capitalization. In the event of changes
in the outstanding Common Shares of the Corporation by reason of share
dividends, split-ups, recapitalizations, mergers, consolidations, combination or
exchange of shares, separations, reorganizations, or liquidations, the number
and class of shares available under the Plan in the aggregate and in any Plan
Year and the maximum number of shares as to which Options may be granted to any
employee shall be correspondingly adjusted by the Committee. Notwithstanding the
foregoing, no adjustment shall be made in the minimum number of shares which may
be purchased at any time.
13. Effectiveness of Plan. The Plan shall become effective on such date
as the Board of Directors shall determine, but only after: (a) the shareholders
of the Corporation shall, by the affirmative vote of a majority in interest of
the Common Shares, in addition to the affirmative vote of a majority in interest
of all the shares of the Corporation, have approved the Plan; and (b) the Board
of Directors shall have been advised by counsel that all applicable legal
requirements have been complied with. The shareholders of the Corporation shall
approve the Plan within 12 months before or after the date the Plan is adopted.
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14. Termination and Amendment of Plan. The Plan shall terminate 10
years from the date hereof, and an Option shall not be granted under the Plan
after that date. The Plan (including the form of Incentive Stock Option
Agreement which is attached hereto and marked Exhibit A) may at any time or from
time to time be terminated, modified, or amended by the shareholders of the
Corporation, by the affirmative vote of a majority in interest of the Common
Shares, in addition to the affirmative vote of a majority in interest of all the
shares of the Corporation. The Board of Directors may at any time and from time
to time modify or amend the Plan (including such form of the Incentive Stock
Option Agreement) in such respects as it shall deem advisable in order that the
Options shall continue to be "non-qualified stock options" as defined in the
Internal Revenue Code of 1986 or to conform to any change in the law, or in any
other respect which shall not change: (a) the maximum number of shares for which
Options may be granted under the Plan either in the aggregate or in any Plan
Year or to any individual employee; (b) the option prices other than to change
the manner of determining the fair market value of the Common Shares to conform
with any then applicable provisions of the Internal Revenue Code or regulations
thereunder; (c) the periods during which Options may be granted or exercised;
(d) the provisions relating to the determination of employees to whom Options
shall be granted and the numbers of shares to be covered by such Options; or (e)
the provisions relating to adjustments to be-made upon changes in
capitalization. The termination or any modification or amendment of the Plan may
affect an employee's rights under an Option previously granted to him under an
Incentive Stock Option Agreement which is then unexercised.
15. Governing Law. This instrument shall be interpreted and governed
in all respects by Florida law.
16. Entire Agreement; Modification. This instrument constitutes the
entire agreement between the parties hereto, and there are no agreements,
understandings, restrictions, warranties or representations between the parties
other than those set forth herein or herein provided for. This instrument may be
amended or modified at any time and in all respects, or any provisions may be
waived, only by an instrument in writing signed by the party sought to be held
thereto.
17. Interpretation. This instrument shall not be construed more
strongly against a party because of such party's participation in the drafting
and preparation hereof. Headings contained herein are for reference purposes
only and shall not affect in any way the meaning or interpretation hereof. All
personal pronouns used herein shall include the other genders whether used in
the masculine or feminine or neuter gender, and the singular shall include the
plural whenever and as often as may be appropriate.
THIS INSTRUMENT is executed and delivered effective as of the date
first above written.
SPEEDCOM WIRELESS INTERNATIONAL
CORPORATION
A Florida Corporation
By_______________________________________
_______________________(Print Name)
_________________________(Capacity)
