exv10w2






Exhibit 10.2




NEXTG NETWORKS, INC.




2001 STOCK OPTION PLAN




     1. Purposes of the Plan. The purposes of this Stock Option Plan are to attract and
retain the best available personnel for positions of substantial responsibility, to provide
additional incentive to Employees, Directors, and Consultants, and to promote the success of the
Company’s business. Options granted under the Plan may be Incentive Stock Options or Nonstatutory
Stock Options, as determined by the Administrator at the time of grant.



     2. Definitions. As used herein, the following definitions shall apply:



          (a) “Administrator” means the Board or any of its Committees as shall be administering
the Plan in accordance with Section 4 hereof.



          (b) “Applicable Laws” means the requirements relating to the administration of stock
option plans under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any
stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable
laws of any other country or jurisdiction where Options are granted under the Plan.



          (c) “Board” means the Company’s Board of Directors.



          (d) “Change in Control” means the occurrence of any of the following events:



               (i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of the Company’s securities representing fifty percent (50%) or more of the total
voting power represented by the Company’s then outstanding voting securities; or



               (ii) The consummation of the sale or disposition by the Company of all or substantially all of
the Company’s assets; or



               (iii) The consummation of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the Company’s voting securities
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or its parent) at least fifty
percent (50%) of the total voting power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such merger or consolidation.



          (e) “Code” means the Internal Revenue Code of 1986, as amended.



          (f) “Committee” means a committee of Directors appointed by the Board in accordance
with Section 4 hereof.



          (g) “Common Stock” means the Company’s Common Stock.



 









 





          (h) “Company” means NextG Networks, Inc., a Delaware corporation.



          (i) “Consultant” means any natural person who is engaged by the Company or any Parent
or Subsidiary to render consulting or advisory services to such entity and who satisfies the
requirements of subsection (c)(1) of Rule 701 under the Securities Act of 1933, as amended.



          (j) “Director” means a member of the Board.



          (k) “Disability” means total and permanent disability as defined in Section 22(e)(3)
of the Code.



          (l) “Employee” means any person, including officers and Directors, employed by the
Company or any Parent or Subsidiary of the Company. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between
locations of the Company or between the Company, its Parent, any Subsidiary, or any successor. For
purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless
re-employment upon expiration of such leave is guaranteed by statute or contract. If re-employment
upon expiration of a leave of absence approved by the Company is not so guaranteed, then three (3)
months after the 91st day of such leave, any Incentive Stock Option held by the Optionee shall
cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor payment of a director’s fee by the
Company shall be sufficient to constitute “employment” by the Company.



          (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



          (n) “Fair Market Value” means, as of any date, the value of Common Stock determined as
follows:



               (i) If the Common Stock is listed on any established stock exchange or a national market
system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of
The Nasdaq Stock Market, then its Fair Market Value shall be the closing sales price for such stock
(or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of
determination, as reported in The Wall Street Journal or such other source as the Administrator
deems reliable;



               (ii) If the Common Stock is regularly quoted by a recognized securities dealer, but selling
prices are not reported, then its Fair Market Value shall be the mean between the high bid and low
asked prices for the Common Stock on the day of determination; or



               (iii) In the absence of an established market for the Common Stock, then the Fair Market Value
thereof shall be determined in good faith by the Administrator.



          (o) “Incentive Stock Option” means an Option intended to qualify as an incentive stock
option within the meaning of Section 422 of the Code.



          (p) “Nonstatutory Stock Option” means an Option not intended to qualify as an
Incentive Stock Option.



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          (q) “Option” means a stock option granted pursuant to the Plan.



          (r) “Option Agreement” means a written or electronic agreement between the Company and
an Optionee evidencing the terms and conditions of an individual Option grant. The Option
Agreement is subject to the terms and conditions of the Plan.



          (s) “Optioned Stock” means the Common Stock subject to an Option.



          (t) “Optionee” means the holder of an outstanding Option granted under the Plan.



          (u) “Parent” means a “parent corporation,” whether now or hereafter existing, as
defined in Section 424(e) of the Code.



          (v) “Plan” means this 2001 Stock Option Plan.



          (w) “Service Provider” means an Employee, Director, or Consultant.



          (x) “Share” means a share of the Common Stock, as adjusted in accordance with
Section 12 below.



          (y) “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing,
as defined in Section 424(f) of the Code.



     3. Stock Subject to the Plan. Subject to the provisions of Section 12 of the Plan,
the maximum aggregate number of Shares that may be subject to option and sold under the Plan is
1,900,000 Shares. The Shares may be authorized but unissued, or reacquired Common Stock.



          If an Option expires or becomes unexercisable without having been exercised in full, then the
unpurchased Shares which were subject thereto shall become available for future grant or sale under
the Plan (unless the Plan has terminated). However, Shares that have actually been issued under
the Plan, upon exercise of an Option, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that, if Shares of restricted stock issued
pursuant to an Option are repurchased by the Company at their original purchase price, then such
Shares shall become available for future grant under the Plan.



     4. Administration of the Plan.



          (a) Administrator. The Plan shall be administered by the Board or a Committee
appointed by the Board, which Committee shall be constituted to comply with Applicable Laws.



          (b) Powers of the Administrator. Subject to the provisions of the Plan and, in the
case of a Committee, the specific duties delegated by the Board to such Committee, and subject to
the approval of any relevant authorities, the Administrator shall have the authority in its
discretion:



               (i) to determine the Fair Market Value;



               (ii) to select the Service Providers to whom Options may from time to time be granted
hereunder;



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               (iii) to determine the number of Shares to be covered by each such Option granted hereunder;



               (iv) to approve forms of agreement for use under the Plan;



               (v) to determine the terms and conditions of any Option granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or times when Options may
be exercised (which may be based on performance criteria), any vesting acceleration or waiver of
forfeiture restrictions, and any restriction or limitation regarding any Option or the Common Stock
relating thereto, based in each case on such factors as the Administrator, in its sole discretion,
shall determine;



               (vi) to prescribe, amend, and rescind rules and regulations relating to the Plan, including
rules and regulations relating to sub-plans established for the purpose of satisfying applicable
foreign laws;



               (vii) to allow Optionees to satisfy withholding tax obligations by electing to have the
Company withhold from the Shares to be issued upon exercise of an Option that number of Shares
having a Fair Market Value equal to the minimum amount required to be withheld. The Fair Market
Value of the Shares to be withheld shall be determined on the date that the amount of tax to be
withheld is to be determined. All elections by Optionees to have Shares withheld for this purpose
shall be made in such form and under such conditions as the Administrator may deem necessary or
advisable; and



               (viii) to construe and interpret the terms of the Plan and Options granted pursuant to the
Plan.



          (c) Effect of Administrator’s Decision. All decisions, determinations, and
interpretations of the Administrator shall be final and binding on all Optionees.



     5. Eligibility. Nonstatutory Stock Options may be granted to Service Providers.
Incentive Stock Options may be granted only to Employees.



     6. Limitations.



          (a) Incentive Stock Option Limit. Each Option shall be designated in the Option
Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares
with respect to which Incentive Stock Options are exercisable for the first time by the Optionee
during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds
$100,000, such Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into account in the order in which they were
granted. The Fair Market Value of the Shares shall be determined as of the time the Option with
respect to such Shares is granted.



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          (b) At-Will Employment. Neither the Plan nor any Option shall confer upon any
Optionee any right with respect to continuing the Optionee’s relationship as a Service Provider
with the Company, nor shall it interfere in any way with such Optionee’s right or the Company’s
right to terminate such relationship at any time, with or without cause, and with or without
notice.



     7. Term of Plan. Subject to shareholder approval in accordance with Section 18, the
Plan shall become effective upon its adoption by the Board. Unless sooner terminated under Section
14, it shall continue in effect for a term of ten (10) years from the later of (i) the effective
date of the Plan, or (ii) the date of the most recent Board approval of an increase in the number
of shares reserved for issuance under the Plan.



     8. Term of Option. The term of each Option shall be stated in the Option Agreement;
provided, however, that the term shall be no more than ten (10) years from the date of grant
thereof. In the case of an Incentive Stock Option granted to an Optionee who, at the time the
Option is granted, owns stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the Option shall be
five (5) years from the date of grant or such shorter term as may be provided in the Option
Agreement.



     9. Option Exercise Price and Consideration.



          (a) Exercise Price. The per share exercise price for the Shares to be issued upon
exercise of an Option shall be such price as is determined by the Administrator, but shall be
subject to the following:



               (i) In the case of an Incentive Stock Option:



                    (A) granted to an Employee who, at the time of grant of such Option, owns stock representing
more than ten percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the exercise price shall be no less than 110% of the Fair Market Value per
Share on the date of grant; and



                    (B) granted to any other Employee, the per Share exercise price shall be no less than 100% of
the Fair Market Value per Share on the date of grant.



               (ii) In the case of a Nonstatutory Stock Option



                    (A) granted to a Service Provider who, at the time of grant of such Option, owns stock
representing more than ten percent (10%) of the voting power of all classes of stock of the Company
or any Parent or Subsidiary, the exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant; and



                    (B) granted to any other Service Provider, the per Share exercise price shall be no less than
85% of the Fair Market Value per Share on the date of grant.



               (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price
other than as required above pursuant to a merger or other corporate transaction.



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          (b) Forms of Consideration. The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be determined by the
Administrator (and, in the case of an Incentive Stock Option, shall be determined at the time of
grant). Such consideration may consist of, without limitation, (i) cash, (ii) check, (iii)
promissory note, (iv) other Shares, provided Shares acquired directly from the Company (x) have
been owned by the Optionee for more than six months on the date of surrender, and (y) have a Fair
Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised, (v) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan, or (vi) any combination of
the foregoing methods of payment. In making its determination as to the type of consideration to
accept, the Administrator shall consider whether acceptance of such consideration may be reasonably
expected to benefit the Company. Notwithstanding the foregoing, the Administrator may permit an
Optionee to exercise his or her Option by delivery of a full-recourse promissory note secured by
the purchased Shares. The terms of such promissory note shall be determined by the Administrator
in its sole discretion.



     10. Exercise of Option.



          (a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder
shall be exercisable according to the terms hereof at such times and under such conditions as
determined by the Administrator and set forth in the Option Agreement. Except in the case of
Options granted to officers, Directors and Consultants, Options shall become exercisable at a rate
of no less than 20% per year over five years from the date the Options are granted. Unless the
Administrator provides otherwise, vesting of Options granted hereunder to officers and Directors
shall be suspended during any unpaid leave of absence. An Option may not be exercised for a
fraction of a Share.



               An Option shall be deemed exercised when the Company receives (i) written or electronic notice
of exercise (in accordance with the Option Agreement) from the person entitled to exercise the
Option, and (ii) full payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of an Option shall be
issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee
and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the
Company’s books or of a duly authorized Company transfer agent), no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such
Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other
right for which the record date is before the date the Shares are issued, except as provided in
Section 12 of the Plan.



               Exercise of an Option in any manner shall result in a decrease in the number of Shares
thereafter available, both for purposes of the Plan and for sale under the Option, by the number of
Shares as to which the Option is exercised.



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          (b) Termination of Relationship as a Service Provider. If an Optionee ceases to be a
Service Provider, then such Optionee may exercise his or her Option within 30 days of termination,
or such longer period of time as specified in the Option Agreement, to the extent that the Option
is vested on the date of termination (but in no event later than the expiration of the term of the
Option as set forth in the Option Agreement). If, on the date of termination, the Optionee is not
vested as to his or her entire Option, then the Shares covered by the unvested portion of the
Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her
Option within the time specified by the Administrator, then the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.



          (c) Disability of Optionee. If an Optionee ceases to be a Service Provider as a
result of the Optionee’s Disability, then the Optionee may exercise his or her Option within six
months of termination, or such longer period of time as specified in the Option Agreement, to the
extent the Option is vested on the date of termination (but in no event later than the expiration
of the term of such Option as set forth in the Option Agreement). If, on the date of termination,
the Optionee is not vested as to his or her entire Option, then the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified herein, then the Option shall terminate, and
the Shares covered by such Option shall revert to the Plan.



          (d) Death of Optionee. If an Optionee dies while a Service Provider, then the Option
may be exercised within six months after Optionee’s death, or such longer period of time as
specified in the Option Agreement, to the extent that the Option is vested on the date of death
(but in no event later than the expiration of the term of such Option as set forth in the Option
Agreement) by the Optionee’s designated beneficiary, provided such beneficiary has been designated
before Optionee’s death in a form acceptable to the Administrator. If no such beneficiary has been
designated by the Optionee, then such Option may be exercised by the personal representative of the
Optionee’s estate or by the person(s) to whom the Option is transferred pursuant to the Optionee’s
will or in accordance with the laws of descent and distribution. If, at the time of death, the
Optionee is not vested as to his or her entire Option, then the Shares covered by the unvested
portion of the Option shall immediately revert to the Plan. If the Option is not so exercised
within the time specified herein, then the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.



     11. Limited Transferability of Options. Unless determined otherwise by the
Administrator, Options may not be sold, pledged, assigned, hypothecated, transferred, or disposed
of in any manner other than by will or the laws of descent and distribution, and, during the
lifetime of the Optionee, may be exercised only by the Optionee. If the Administrator, in its sole
discretion, makes an Option transferable, then such Option may only be transferred by (i) will,
(ii) the laws of descent and distribution, (iii) instrument to an inter vivos or testamentary trust
in which the Option is to be passed to beneficiaries upon the death of the Optionee, or (iv) gift
to a member of Optionee’s immediate family (as such term is defined in Rule 16a-1(e) of the
Exchange Act). In addition, any transferable Option shall contain additional terms and conditions
as the Administrator deems appropriate.



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     12. Adjustments Upon Changes in Capitalization, Merger, or Change in Control.



          (a) Changes in Capitalization. Subject to any required action by the Company’s
shareholders, the number and type of Shares which have been authorized for issuance under the Plan
but as to which no Options have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option, and the number and type of Shares covered by each
outstanding Option, as well as the price per Share covered by each such outstanding Option, shall
be proportionately adjusted for any increase or decrease in the number or type of issued Shares
resulting from a stock split, reverse stock split, stock dividend, combination, or reclassification
of the Common Stock, or any other increase or decrease in the number of issued shares of Common
Stock effected without receipt of consideration by the Company. The conversion of any convertible
securities of the Company shall not be deemed to have been “effected without receipt of
consideration.” Such adjustment shall be made by the Board, whose determination in that respect
shall be final, binding, and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number,
type, or price of Shares subject to an Option.



          (b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each Optionee as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in its discretion may
provide for an Optionee to have the right to exercise his or her Option until 15 days before such
transaction as to all of the Optioned Stock covered thereby, including Shares as to which the
Option would not otherwise be exercisable. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares purchased upon exercise of an Option shall lapse
as to all such Shares, provided the proposed dissolution or liquidation takes place at the time and
in the manner contemplated. To the extent it has not been previously exercised, an Option will
terminate immediately before the consummation of such proposed action.



          (c) Merger or Change in Control. In the event of a merger of the Company with or into
another corporation, or a Change in Control, each outstanding Option shall be assumed or an
equivalent option substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. If, in such event, the Option is not assumed or substituted, then the
Option shall terminate as of the date of the closing of the merger or Change in Control. For the
purposes of this Section 12(c), the Option shall be considered assumed if, after the merger or
Change in Control, the Option confers the right to purchase or receive, for each Share of Optioned
Stock subject to the Option immediately before the merger or Change in Control, the consideration
(whether stock, cash, or other securities or property) received in the merger or Change in Control
by holders of Common Stock for each Share held on the effective date of the transaction (and, if
holders were offered a choice of consideration, the type of consideration chosen by the holders of
a majority of the outstanding Shares); provided, however, that, if such consideration received in
the merger or Change in Control is not solely common stock of the successor corporation or its
Parent, then the Administrator may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option, for each Share of Optioned Stock
subject to the Option, to be solely common stock of the successor corporation or its Parent equal
in fair market value to the per share consideration received by holders of common stock in the
merger or Change in Control.



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     13. Time of Granting Options. The date of grant of an Option shall, for all purposes,
be the date on which the Administrator makes the determination granting such Option, or such later
date as is determined by the Administrator. Notice of the determination shall be given to each
Service Provider to whom an Option is so granted within a reasonable time after the date of such
grant.



     14. Amendment and Termination of the Plan.



          (a) Amendment and Termination. The Board may at any time amend, alter, suspend, or
terminate the Plan.



          (b) Shareholder Approval. The Board shall obtain shareholder approval of any Plan
amendment to the extent necessary and desirable to comply with Applicable Laws.



          (c) Effect of Amendment or Termination. No amendment, alteration, suspension, or
termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise
between the Optionee and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company. Termination of the Plan shall not affect the Administrator’s ability to
exercise the powers granted to it hereunder with respect to Options granted under the Plan before
the date of such termination.



     15. Conditions Upon Issuance of Shares.



          (a) Legal Compliance. Shares shall not be issued pursuant to the exercise of an
Option unless the exercise of such Option and the issuance and delivery of such Shares shall comply
with Applicable Laws and shall be further subject to the approval of counsel for the Company with
respect to such compliance.



          (b) Investment Representations. As a condition to the exercise of an Option, the
Administrator may require the person exercising such Option to represent and warrant at the time of
any such exercise that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a
representation is required.



     16. Inability to Obtain Authority. The inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.



     17. Reservation of Shares. The Company, during the term of this Plan, shall at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.



     18. Shareholder Approval. The Plan shall be subject to approval by the Company’s
shareholders within 12 months after the date the Plan is adopted. Such shareholder approval shall
be obtained in the degree and manner required under Applicable Laws.



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     19. Information to Optionees. The Company shall provide to each Optionee and to each
individual who acquires Shares pursuant to the Plan, not less frequently than annually during the
period such Optionee has one or more Options outstanding, and, in the case of an individual who
acquires Shares pursuant to the Plan, during the period such individual owns such Shares, copies of
annual financial statements. The Company shall not be required to provide such statements to key
employees whose duties in connection with the Company assure their access to equivalent
information.



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