EX-10.1 2 ex10-1.txt NON-QUALIFIED STOCK OPTION AGREEMENT 1 EXHIBIT 10.1 NONQUALIFIED STOCK OPTION AGREEMENT GRANTED TO: Russell A. Wiseman DATE OF GRANT: April 3, 2000 GRANTED PURSUANT TO: Nucentrix Broadband Networks, Inc. First Amended and Restated 1999 Share Incentive Plan NUMBER OF UNDERLYING 20,000 shares SHARES OF COMMON STOCK: EXERCISE PRICE: $12.50 per share VESTING SCHEDULE: See Section 4 below 1. This Nonqualified Stock Option Agreement (the "Agreement") is made and entered into as of April 3, 2000, between Nucentrix Broadband Networks, Inc., a Delaware corporation (the "Company"), and Russell A. Wiseman ("Employee"). It is the intent of the Company and Employee that the Option (as defined in Paragraph 2 below) will not qualify as an "incentive stock option" under Section 422 of the Internal Revenue Code of 1986, as amended from time to time (the "Code"). 2. Employee is granted an option (the "Option") by the Compensation Committee of the Company's Board of Directors (the "Committee") to purchase 20,000 shares of common stock of the Company, par value $.001 ("Common Stock") pursuant to the Company's First Amended and Restated 1999 Share Incentive Plan (the "Plan"). Capitalized terms not defined herein shall have the meanings ascribed thereto in the Plan. The Option granted hereunder is a matter of separate inducement and is not in lieu of salary or other compensation for Employee's services. 3. The Option's exercise price is $12.50 per share. 4. Subject to Paragraphs 5, 6, 7 and 8 below, 20% of the Option will automatically vest and become exercisable on each of the first five anniversaries of the date of Employee's commencement of employment with the Company (the "Start Date"). Notwithstanding anything herein to the contrary, if the Employee is employed by the Company on the date which is 30 days immediately prior to the Expiration Date (such date referred to herein as the "Final Vesting Date"), the 2 unvested portion, if any, of the Option will immediately vest and become exercisable on such date. 5. Subject to Paragraphs 6 and 7 below, the unexercised portion of the Option, unless sooner terminated, shall expire seven years after the Start Date (the "Expiration Date") and, notwithstanding anything contained herein to the contrary, no portion of the Option may be exercised after the Expiration Date. 6. If prior to the Expiration Date, Employee's employment with the Company or any subsidiary corporation terminates, the Option will terminate on the applicable date as described below, provided, however, that none of the events described below shall extend the period of exercisability beyond the Expiration Date: (a) If the employment of Employee is terminated by reason of Employee's death while in the employ of the Company or any subsidiary corporation, the Option shall immediately become fully exercisable and remain exercisable for twelve (12) months after Employee's death and shall be exercisable by the executor or administrator of the estate of the deceased Employee or the person or persons to whom the deceased Employee's rights under the Option shall pass by will or the laws of descent or distribution; (b) If the employment of Employee is terminated by the Company or any subsidiary corporation for reason of Employee's "Permanent Disability" (as defined below), the Option shall immediately become fully exercisable on the date of such termination and shall remain exercisable for six (6) months after such date; provided, however, that if Employee dies during the six month period following such date and Employee has not exercised the Option, the Option shall remain exercisable for an additional twelve (12) months after Employee's death and shall be exercisable by the executor or administrator of the estate of the deceased Employee or the person or persons to whom the deceased Employee's rights under the Option shall pass by will or the laws of descent or distribution; (c) If the employment of Employee is terminated by the Company or any subsidiary corporation for "Cause" (as defined below), the Option shall, to the extent not previously exercised, immediately become null and void on the date of such termination; (d) If the employment of Employee is terminated by the Company or any subsidiary corporation other than (X) for "Cause," (Y) for reason of Employee's death or "Permanent Disability," the Option, to the extent vested and not previously exercised, shall immediately become fully exercisable on the date of such termination and shall remain exercisable for thirty (30) days after such date and the unvested portion of the Option shall be canceled; (e) If the employment of Employee is terminated by the Employee prior to the Final Vesting Date, the unvested portion of the Option shall immediately become null and void on the date of such termination and the vested portion of the Option 2 3 shall, to the extent not previously exercised, remain exercisable for thirty (30) days after the date of such termination; or (f) If the employment of Employee is terminated by the Employee on or after the Final Vesting Date, the Option shall, to the extent not previously exercised, remain exercisable for thirty (30) days after the date of such termination. For purposes of this Agreement, the terms "Permanent Disability" and "Cause" shall have the meanings ascribed to such terms in the Employee's employment agreement with the Company, as amended from time to time (the "Employment Agreement"), or any successor agreement, or if Employee does not have an employment agreement with the Company, such terms shall have the meanings ascribed to them on Annex A attached hereto. 7. Upon the occurrence of a "Change in Control" (as defined in the Plan), the Option shall immediately become fully exercisable and shall terminate thirty (30) days after the occurrence of the Change in Control. Upon such termination, Employee shall receive, with respect to the unexercised portion of the Option, an amount in cash, in one or more kinds of property (including the property, if any, payable in the transaction) or in a combination thereof, as the Committee, in its discretion, shall determine, equal to the product of (X) the amount, if any, by which the Fair Market Value of a share of Common Stock immediately prior to the occurrence of such Change in Control exceeds the exercise price per share specified in Paragraph 3 hereof and (Y) the number of shares with respect to which the Option remained exercisable on the date of such termination; provided, however, that the apportionment and kind of property, if any, to be received by the Employee shall not differ in any material respect from the property to be received by the holders of Common Stock. 8. Notwithstanding anything to the contrary contained herein, if Employee's employment with the Company for any reason does not begin on or before April 3, 2000, the Option hereby granted shall be canceled and forfeited effective as of May 1, 2000. Furthermore, notwithstanding anything to the contrary contained herein, the grant of the Option shall be expressly conditioned upon, and subject to, the approval of that certain First Amendment ("First Amendment") to the Plan by a majority the outstanding shares of Common Stock of the Company that are present in person or by proxy at the Company's 2000 annual meeting of the stockholders (or any adjournment thereof) and entitled to vote on such matter, as set forth in the Company's Proxy Statement dated April 11, 2000. Upon the failure of the Company's stockholders to so approve the First Amendment on or before May 31, 2000, this Agreement and the grant of the Option hereunder shall be null and void ab initio and of no further force or effect. 9. Employee may exercise the Option regardless of whether any other option that Employee has been granted by the Company remains unexercised. In no event may 3 4 Employee exercise the Option for a fraction of a share or for less than 100 shares unless such number is the remaining balance for which the Option is then exercisable. 10. The Option's exercise price shall be paid by Employee on the date the Option is exercised, in full in cash or, in the sole discretion of the Committee, in shares of Common Stock or any other method that the Committee shall prescribe, including, without limitation, by the withholding of shares or the delivery of an executed promissory note to the Company on such terms and conditions as the Committee shall determine in its sole discretion. 11. The Company or any subsidiary corporation may withhold from sums due or to become due to Employee from the Company or any subsidiary corporation an amount necessary to satisfy its obligation to withhold taxes incurred by reason of the issuance or disposition of shares pursuant to the Option, or may require Employee to reimburse the Company or any subsidiary corporation in such amount. The exercise of the Option shall not be effective until the withholding tax liability associated with the exercise of the Option has been satisfied. 12. Employee shall not have any of the rights of a stockholder with respect to the shares of Common Stock underlying the Option while the Option is unexercised. 13. Any exercise of this Option shall be in writing addressed to the Corporate Secretary of the Company at the principal place of business of the Company, specifying the Option being exercised and the number of shares to be purchased, accompanied by payment therefor. 14. This Option shall not be transferable otherwise than by will or the laws of descent and distribution, and shall be exercisable, during Employee's lifetime, only by Employee. Notwithstanding the foregoing, but subject to the approval of the form of the transfer by the Committee which approval shall not be unreasonably withheld, this Option may be transferred by Employee solely to Employee's spouse, siblings, parents, children and grandchildren or trusts for the benefit of such persons, subject to any restriction included in this Agreement. 15. If the Company, in its sole discretion, shall determine that it is necessary, to comply with applicable securities laws, the certificate or certificates representing the shares purchased pursuant to the exercise of the Option shall bear an appropriate legend in form and substance, as determined by the Company, giving notice of applicable restrictions on transfer under or in respect of such laws. 16. The Company agrees that at the time of exercise of the Option it will use reasonable efforts in good faith to have an effective Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the "Act"), which includes a prospectus that is current with respect to the shares subject to the Option. Employee covenants and agrees with the Company that if, at the time of exercise of the Option, there does not exist a Registration Statement on an appropriate form under the Act, which Registration Statement shall have become effective and shall include a prospectus that is current with 4 5 respect to the shares subject to the Option, (i) that he or she is purchasing the shares for his or her own account and not with a view to the resale or distribution thereof, (ii) that any subsequent offer for sale or sale of any such shares shall be made either pursuant to (x) a Registration Statement on an appropriate form under the Act, which Registration Statement shall have become effective and shall be current with respect to the shares being offered and sold, or (y) a specific exemption from the registration requirements of the Act and applicable state securities laws, but in claiming such exemption, Employee shall, prior to any offer for sale or sale of such shares, obtain a favorable written opinion from counsel for or approved by the Company as to the applicability of such exemption and (iii) that Employee agrees that the certificates evidencing such shares shall bear a legend to the effect of the foregoing. 17. This Agreement is subject to all terms, conditions, limitations and restrictions contained in the Plan, which shall be controlling in the event of any conflicting or inconsistent provisions. 18. This Agreement is not a contract of employment and the terms of Employee's employment shall not be affected hereby or by any agreement referred to herein except to the extent specifically so provided herein or therein. Nothing herein shall be construed to impose any obligation on the Company or any subsidiary corporation to continue Employee's employment, and it shall not impose any obligation on Employee's part to remain in the employ of the Company or any subsidiary corporation. 19. Employee acknowledges and agrees that neither the Company, its stockholders nor its directors and officers, has any duty or obligation to disclose to the Employee any material information regarding the business of the Company or any subsidiary corporation or affecting the value of the Common Stock before or at the time of a termination of the employment of Employee by the Company or any subsidiary corporation, including, without limitation, any information concerning plans for the Company or any subsidiary corporation to make a public offering of its securities or to be acquired by or merged with or into another firm or entity. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. NUCENTRIX BROADBAND NETWORKS, INC. By: /s/ C.D. McHenry ------------------------------------ Carroll D. McHenry Chairman and Chief Executive Officer ACCEPTED: /s/ Russell A. Wiseman --------------------------- Russell A. Wiseman 5 6 ANNEX A TO NONQUALIFIED STOCK OPTION AGREEMENT BETWEEN NUCENTRIX BROADBAND NETWORKS, INC. ("NUCENTRIX") AND RUSSELL A. WISEMAN "Cause" shall mean a finding by a majority of the directors of Nucentrix that you have: (1) acted with gross negligence or willful misconduct in connection with the performance of your duties as an officer of Nucentrix; (2) engaged in a material act of insubordination or of common law fraud against Nucentrix or its employees; (3) acted against the best interests of Nucentrix in a manner that has or could have a material adverse affect on the financial condition of Nucentrix; (4) been convicted of a crime or pleaded nolo contendere (other than minor infractions and traffic violations); (5) materially violated your duty of loyalty to Nucentrix which results or may reasonably be expected to result in material injury to Nucentrix or any subsidiary; or (6) engaged in chronic alcohol or drug abuse. "Permanent Disability" shall mean any physical or mental disability which renders you unable to perform the essential functions of your job as an employee of Nucentrix on a full-time basis with or without reasonable accommodation for 180 calendar days whether or not consecutive, within any period of 12 consecutive months. 6