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EXHIBIT 10.44
HIGH SPEED ACCESS CORP.
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT ("Agreement") is made
and entered into effective as of the ___ day of October, 2000, by and between
HIGH SPEED ACCESS CORP, a Delaware corporation (the "Corporation"), and XXXXXX
X. X'XXXXX ("Optionee").
RECITALS:
A. The Corporation has adopted the High Speed Access Corp. 1999 Stock
Option Plan ("Plan") and has granted Optionee an option to purchase 750,000
shares of the Corporation's common stock, $.01 par value per share, pursuant to
a Stock Option Agreement dated as of October 1, 1999 by and between the
Corporation and Optionee (the "Prior Agreement").
B. Concurrently with the execution hereof, the Corporation and Optionee
have entered into an Employment Agreement (the "Employment Agreement").
C. The Corporation and the Optionee desire to amend the Prior Agreement
and restate the terms and provisions thereof in its entirety.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. GRANT OF OPTION; OPTION PRICE. Effective as of October 1, 1999 (the
"Grant Date") the Corporation has granted to Optionee the right and option to
purchase ("Option") all or any part of an aggregate of 750,000 Shares (the
"Option Shares") on the terms and conditions set forth herein and in the Plan,
at a purchase price per Option Share of $17.63 ("Option Price"). To the extent
the Option meets the requirements of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), the Option Shares shall be considered incentive
stock options as defined in Section 422 of the Code.
2. TERM OF OPTION AND VESTING. The Option shall continue for a term
commencing on the Grant Date and ending at 5:00 p.m. Eastern Time on September
30, 2009 ("Termination Date"), unless sooner terminated as provided in Section
5. Subject to the other terms and conditions set forth in this Agreement,
including without limitation Section 6 hereof, the Option shall vest and
Optionee shall have the right to exercise the Option as follows:
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2.1 FIRST YEAR. Up to twenty-five percent (25%) of the total Option
Shares may be exercised at any time after September 2, 2000.
2.2 SECOND YEAR. Up to an additional twenty-five percent (25%) of the
total Option Shares may be exercised at any time after September 2, 2001.
2.3 THIRD YEAR. Up to an additional twenty-five percent (25%) of the
total Option Shares may be exercised at any time after September 2, 2002.
2.4 FOURTH YEAR. Up to an additional twenty-five percent (25%) of the
total Option Shares may be exercised at any time September 2, 2003.
If an installment covers a fractional share, such installment shall be
rounded off to the next highest share, except for the final installment, which
will be for the balance of the total Option Shares.
3. CONDITIONS TO EXERCISE OF OPTIONS.
3.1 EXERCISE OF OPTION. Optionee may exercise the Option by
delivering to the Corporation: [i] seven (7) days' prior written notice
("Exercise Notice") specifying the number of Shares as to which the Option is
being exercised and, if determined by counsel for the Corporation to be
necessary, representing that such Shares are being acquired for investment
purposes only and not for purpose of resale or distribution; and [ii] payment by
the Optionee, or a broker-dealer (as provided in Section 3.2 hereof), of the
Option Price for the number of Shares with respect to which the Option is being
exercised, in the manner provided in Section 3.2.
3.2 PAYMENT OF OPTION PRICE. The Corporation shall accept as
payment for the Option Price cash, a certified or cashiers check, whole shares
of Common Stock owned by the Optionee evidenced by negotiable certificates, such
other consideration as shall constitute lawful consideration for the issuance of
Common Stock and be approved by the Compensation Committee of the Corporation's
Board of Directors (the "Committee") established to administer the Plan
(including without limitation, assurance satisfactory to the Committee from a
broker registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of the delivery of the proceeds of an imminent sale of Common
Stock to be issued pursuant to the exercise of such Option, such sale to be made
at the direction of the Optionee), or a combination of such methods of payment,
which payment must be delivered to the Corporation with the Exercise Notice.
3.3 DELIVERY OF STOCK ON EXERCISE. On or before the expiration
of the seven (7) day Exercise Notice period, and provided that all conditions
precedent contained in this Agreement are satisfied, the Corporation shall,
without transfer or issuance tax or other incidental expenses to Optionee,
deliver to Optionee, at the offices of the Corporation, or at such other place
as may be mutually
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acceptable, or, at the election of the Corporation, by certified mail addressed
to Optionee at Optionee's address as shown in the records of the Corporation, a
certificate or certificates for the number of Shares set forth in the Exercise
Notice and for which the Corporation has received payment in the manner
prescribed herein. The Corporation may postpone such delivery until it receives
satisfactory proof that the issuance or transfer of such Shares will not violate
any of the provisions of the Securities Act of 1933, as amended (the "Securities
Act"), or the Exchange Act or any rules or regulations of the Securities and
Exchange Commission promulgated thereunder, or the requirements of applicable
state law relating to authorization, issuance or sale of securities, or until
there has been compliance with the provisions of such acts or rules or the
requirements of the regulations. Options are exercisable only in whole Shares.
If Optionee fails to accept delivery of all or any part of the number of Shares
specified in the Exercise Notice upon tender of delivery thereof, Optionee's
right to exercise this Option with respect to such undelivered shares may be
terminated by the Corporation.
3.4 OPTION NOT TRANSFERABLE EXCEPT IN EVENT OF DEATH. During
Optionee's lifetime, the Option shall be exercisable only by Optionee, and
neither the Option nor any right hereunder shall be transferable except by will
or by the laws of descent and distribution, provided, however, if permitted
under the terms of the Plan, as in effect from time to time, transfers of the
Option, or portions thereof, shall also be permitted under this Agreement. The
Option may not be subject to execution or other similar process. If Optionee
attempts to alienate, assign, pledge, hypothecate or otherwise dispose of the
Option or any of Optionee's rights hereunder, except as provided herein, or in
the event of any levy, attachment, execution or similar process upon the rights
or interests hereby conferred, the Corporation may, in its sole and absolute
discretion, terminate the Option by notice to Optionee and it shall thereupon
become null and void.
4. ACCELERATION OF EXERCISE DATES UPON DEATH OR DISABILITY. The Option
granted by this Agreement shall vest and become fully exercisable on or after
the date of termination of Optionee's employment with the Corporation due to
death or Disability.
5. TERMINATION.
5.1 TERMINATION OF EMPLOYMENT FOR REASONS OTHER THAN
DISABILITY, DISCHARGE FOR CAUSE, OR DEATH. Upon the termination of Optionee's
employment with the Corporation for a reason other than Optionee's Disability,
discharge for Cause (as defined in the Employment Agreement) or death, the
Option granted hereunder shall be exercisable, to the extent exercisable at the
date of Optionee's termination of employment, at any time prior to the earlier
of [a] three (3) months following receipt by Optionee or the Corporation of a
notice of termination of employment, or [b] the Termination Date.
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5.2 TERMINATION OF EMPLOYMENT BECAUSE OF DISABILITY. If
Optionee's employment with the Corporation terminates because of Optionee's
Disability, the Option granted hereunder shall be exercisable at any time within
a period ending on the earlier of [a] one year after Optionee's Disability or
[b] the Termination Date.
5.3 TERMINATION OF EMPLOYMENT BECAUSE OF DISCHARGE FOR CAUSE.
This Agreement shall terminate and the Option granted hereunder shall be null
and void immediately upon the termination of Optionee's employment with the
Corporation through discharge for Cause, as defined in the Employment Agreement.
5.4 DEATH OF OPTIONEE. If Optionee dies [i] while employed by
the Corporation, or [ii] within three (3) months after ceasing to be an employee
of the Corporation, then the Option granted hereunder shall be exercisable by
Optionee's personal representative or the person or persons to whom Optionee's
rights under the Option shall pass by will or by application of the laws of
descent and distribution, at any time within a period ending on the earlier of
[a] one (1) year after Optionee's date of death or [b] the Termination Date.
6. ACCELERATION UPON A CHANGE IN CONTROL. Notwithstanding any provision
of this Agreement or the Plan to the contrary, if Optionee's employment with the
Corporation is terminated as a result of Involuntary Termination or Constructive
Termination within the twelve (12) month period following a Change in Control,
then, to the extent not previously vested and exercisable, the Option Shares
shall automatically vest and become immediately exercisable by Optionee. For
purposes of this Section 6, the terms "Change in Control", "Involuntary
Termination" and "Constructive Termination" shall have the meanings given such
terms in the Employment Agreement.
7. ADJUSTMENT OF SHARES. In the event of capital adjustment after the
Date of Grant in the Common Stock of the Corporation by reason of any
reorganization, recapitalization, stock split, stock dividend, combination or
exchange of shares, merger or consolidation, or any other change (after the
effective date of the Plan) in the nature or number of shares of Common Stock of
the Corporation, a proportionate adjustment shall be made in the Option Price
and the number and kind of shares of Common Stock covered by outstanding Options
granted pursuant to this Agreement. By virtue of such a capital adjustment, the
price of any share under Option shall be adjusted so that there will be no
change in the aggregate purchase price payable upon exercise of any such Option.
Such determination by the Compensation Committee shall be conclusive.
8. SECURITIES LAWS. Optionee understands and agrees that the shares
issuable upon exercise of the Option may not be sold, transferred, pledged or
otherwise disposed of unless they are registered under the Securities Act and,
where required, under the laws of other jurisdictions or an exemption from
registration is
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available and the Corporation is in receipt of an opinion of counsel
satisfactory to the Corporation to such effect.
9. TAX WITHHOLDING. The Corporation shall have the right to require
Optionee to remit to the Corporation an amount sufficient to satisfy all
federal, state and local withholding tax requirements, or, alternatively, the
Corporation shall have the right to withhold from any payment due Optionee or
retain Common Stock otherwise payable to the Optionee pursuant to exercise of an
Option in an amount sufficient to satisfy such withholding requirements, before
the delivery to the Optionee of any certificate(s) for shares of Common Stock.
10. MISCELLANEOUS PROVISIONS.
10.1 OPTION TERMINATES UPON TERMINATION DATE. Notwithstanding
any provision contained herein to the contrary, this Option shall terminate and
become null and void and of no effect after the Termination Date.
10.2 NO RIGHTS AS A SHAREHOLDER. Optionee shall not have any
of the rights of a shareholder regarding the Option Shares, except to the extent
that certificate(s) for such Option Shares shall have been issued upon the
exercise of the Option as provided herein.
10.3 CAPTIONS. The captions and section headings used herein
are for convenience only, shall not be deemed part of this Agreement and shall
not in any way restrict or modify the context and substance of any section or
paragraph of this Agreement.
10.4 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
10.5 ENTIRE AGREEMENT. This Agreement, the Employment
Agreement and the Plan contain the entire agreement between the parties
regarding its subject matter and supersede all prior written or contemporaneous
oral agreements related thereto, including without limitation the Prior
Agreement.
10.6 AMENDMENT AND MODIFICATIONS. No amendment or other
modification to this Agreement shall be binding upon any party unless executed
in writing by all of the parties hereto.
10.7 WAIVER. No waiver by any party of any of the provisions
of this Agreement will be deemed, or will constitute, a waiver of any other
provision, whether similar, nor will any waiver constitute a continuing waiver.
No waiver will be binding unless executed in writing by the party making the
waiver.
10.8 CUMULATIVE REMEDIES. No right or remedy conferred upon or
reserved to any of the parties under the terms of this Agreement is intended to
be,
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nor shall it be deemed, exclusive of any other right or remedy provided herein
or by law or equity, but each shall be cumulative of every other right or
remedy.
10.9 CAPITALIZED TERMS. Capitalized terms in this Agreement
shall have the meaning ascribed to such terms in the Plan unless otherwise
defined herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Title: Chairman
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("Corporation")
/s/ Xxxxxx X. X'Xxxxx
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XXXXXX X. X'XXXXX
("Optionee")
