exv10w3






Exhibit 10.3




NEXTG NETWORKS, INC.




2001 STOCK PLAN




STOCK OPTION AGREEMENT — EARLY EXERCISE




     Unless otherwise defined herein, the terms defined in the 2001 Stock Option Plan shall have
the same defined meanings in this Stock Option Agreement.




	I.	 	NOTICE OF STOCK OPTION GRANT
	 
	 	 	Name
	 
	 	 	Street Address
	 
	 	 	City, State Zip
	 
	 	 	The undersigned Optionee has been granted an Option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option Agreement, as follows:





	 	 	 	 	 	 	 
	 

	 	Date of Grant
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Vesting Commencement Date
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Exercise Price per Share
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Total Number of Shares Granted
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Total Exercise Price
	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Type of Option:
	 	                     Incentive Stock Option
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	                    Nonstatutory Stock Option
	 	 
	 
	 	 	 	 	 	 
	 

	 	Term/Expiration Date:	 	 	 	 
	 

	 	 	 	 

	 	 







	 	 	Vesting Schedule:





     This Option shall be exercisable in whole or in part, according to the following vesting
schedule:



     Twenty-five percent (25%) of the Shares subject to the Option shall vest twelve months after
the Vesting Commencement Date (the “Anniversary Date”), and 1/48 of the Shares subject to
the Option shall vest on the last day of each full calendar month after the Anniversary Date,
subject to Optionee continuing to be a Service Provider on such dates.



 









 





     Termination Period:



     This Option shall be exercisable for 90 days after Optionee ceases to be a Service Provider.
Upon Optionee’s death or Disability, this Option shall be exercisable for six months after Optionee
ceases to be Service Provider. In no event may Optionee exercise this Option after the
Term/Expiration Date as provided above.



II. AGREEMENT




     1. Grant of Option. The Administrator of the Company hereby grants to the Optionee
named in the Notice of Grant (the “Optionee”), an option (the “Option”) to purchase
the number of Shares set forth in the Notice of Grant, at the exercise price per Share set forth in
the Notice of Grant (the “Exercise Price”), and subject to the terms and conditions of the
Plan, which is incorporated herein by reference. Subject to Section 14(c) of the Plan, in the
event of a conflict between the terms and conditions of the Plan and this Option Agreement, the
terms and conditions of the Plan shall prevail.



          If designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this Option
is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code.
Nevertheless, to the extent that it exceeds the $100,000 rule of Code Section 422(d), this Option
shall be treated as a Nonstatutory Stock Option (“NSO”).




     2. Exercise of Option. This Option shall be exercisable during its term in accordance
with the provisions of Section 9 of the Plan as follows:



          (a) Right to Exercise.




               (i) Subject to Section 2(a)(ii) and Section 2(a)(iii) below, this Option shall be exercisable
cumulatively according to the vesting schedule set forth in the Notice of Grant. Alternatively, at
the election of the Optionee, this Option may be exercised in whole or in part at any time as to
Shares that have not yet vested. Vested Shares shall not be subject to the Company’s repurchase
right (as set forth in the Restricted Stock Purchase Agreement, attached hereto as Exhibit
C-1).



               (ii) As a condition to exercising this Option for unvested Shares, the Optionee shall execute
the Restricted Stock Purchase Agreement.



               (iii) This Option may not be exercised for a fraction of a Share.



          (b) Method of Exercise. This Option shall be exercisable by delivery of an exercise
notice in the form attached as Exhibit A (the “Exercise Notice”) which shall state
the election to exercise the Option, the number of Shares with respect to which the Option is being
exercised, and such other representations and agreements as may be required by the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all exercised
Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by the aggregate Exercise Price.




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          No Shares shall be issued pursuant to the exercise of an Option unless such issuance and such
exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to the Optionee on the date on which the Option is exercised
with respect to such Shares.




     3. Optionee’s Representations. In the event the Shares have not been registered under
the Securities Act of 1933, as amended, at the time this Option is exercised, the Optionee shall,
if required by the Company, concurrently with the exercise of all or any portion of this Option,
deliver to the Company his or her Investment Representation Statement in the form attached hereto
as Exhibit B.



     4. Lock-Up Period. Optionee hereby agrees that Optionee shall not offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any Common Stock (or other securities) of the Company or enter into any
swap, hedging, or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any Common Stock (or other securities) of the Company held by
Optionee (other than those included in the registration) for a period specified by the
representative of the underwriters of Common Stock (or other securities) of the Company not to
exceed 180 days after the effective date of any registration statement of the Company filed under
the Securities Act.



          Optionee agrees to execute and deliver such other agreements as may be reasonably requested by
the Company or the underwriter which are consistent with the foregoing or which are necessary to
give further effect thereto. In addition, if requested by the Company or the representative of the
underwriters of Common Stock (or other securities) of the Company, Optionee shall provide, within
10 days of such request, such information as may be required by the Company or such representative
in connection with the completion of any public offering of the Company’s securities pursuant to a
registration statement filed under the Securities Act. The obligations described in this Section
shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration relating solely to a
Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in the future.
The Company may impose stop-transfer instructions with respect to the shares of Common Stock (or
other securities) subject to the foregoing restriction until the end of such 180-day period.
Optionee agrees that any transferee of the Option or shares acquired pursuant to the Option shall
be bound by this Section 4.




     5. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:



          (a) cash;




          (b) check;




          (c) consideration received by the Company under a formal cashless exercise program adopted by
the Company in connection with the Plan; or




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          (d) surrender of other Shares which, (i) in the case of Shares acquired from the Company,
either directly or indirectly, have been owned by the Optionee for more than six months on the date
of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate
Exercise Price of the exercised Shares.




     6. Restrictions on Exercise. This Option may not be exercised until such time as the
Plan has been approved by the shareholders of the Company, or if the issuance of such Shares upon
such exercise or the method of payment of consideration for such shares would constitute a
violation of any Applicable Law.



     7. Non-Transferability of Option. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution or as set forth in the Plan and
may be exercised during the lifetime of Optionee only by Optionee. The terms of the Plan and this
Option Agreement shall be binding upon the executors, administrators, heirs, successors, and
assigns of the Optionee.



     8. Term of Option. This Option may be exercised only within the term set out in the
Notice of Grant, and may be exercised during such term only in accordance with the Plan and the
terms of this Option.



     9. Tax Obligations.



          (a) Withholding Taxes. Optionee agrees to make appropriate arrangements with the
Company (or the Parent or Subsidiary employing or retaining Optionee) for the satisfaction of all
federal, state, local, and foreign income and employment tax withholding requirements applicable to
the Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor the
exercise and refuse to deliver the Shares if such withholding amounts are not delivered at the time
of exercise.




          (b) Notice of Disqualifying Disposition of ISO Shares. If the Option granted to
Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares
acquired pursuant to the ISO on or before the later of (i) the date two years after the Date of
Grant, and (ii) the date one year after the date of exercise, then the Optionee shall immediately
notify the Company in writing of such disposition. Optionee agrees that Optionee may be subject to
income tax withholding by the Company on the compensation income recognized by the Optionee.




     10. Entire Agreement; Governing Law. The Plan is incorporated herein by reference.
The Plan and this Option Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings and agreements of
the Company and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee’s interest except by means of a writing signed by the Company and
Optionee. This Agreement is governed by the internal substantive laws but not the choice of law
rules of California.



     11. No Guarantee of Continued Service. OPTIONEE AGREES THAT THE VESTING OF SHARES
PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE
WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS



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OPTION OR ACQUIRING
SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR
IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY
PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT
TO TERMINATE OPTIONEE’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.




          Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had
an opportunity to obtain the advice of counsel before executing this Option and fully understands
all provisions of the Option. Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Administrator upon any questions arising under the Plan or
this Option. Optionee further agrees to notify the Company upon any change in the residence
address indicated below.




	 	 	 
	OPTIONEE

	 	NEXTG NETWORKS, INC.
	 
	 	 
	 

	 	 
	Signature

	 	By
	 
	 	 
	 

	 	 
	Print Name

	 	Title
	 
	 	 
	 


	 	 
	 
	 	 
	 

Residence Address

	 	 






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EXHIBIT A




2001 STOCK OPTION PLAN




EXERCISE NOTICE




NEXTG NETWORKS, INC.

2216 O’Toole Ave.

San Jose, California 95131




Attention: Chief Financial Officer




     1. Exercise of Option. Effective as of today,                     ,                    , the undersigned
(“Optionee”) hereby elects to exercise Optionee’s option (the “Option”) to purchase
                                         shares of the Common Stock (the “Shares”) of NextG Networks, Inc. (the
“Company”) under and pursuant to the 2001 Stock Option Plan (the “Plan”) and the
Stock Option Agreement dated                                         ,                      (the “Option Agreement”).



     2. Delivery of Payment. With this Exercise Notice, the Optionee delivers to the
Company the full purchase price of the Shares, as set forth in the Option Agreement, and any and
all withholding taxes due in connection with the exercise of the Option.



     3. Representations of Optionee. Optionee acknowledges that Optionee has received,
read, and understood the Plan and the Option Agreement and agrees to abide by and be bound by their
terms and conditions.



     4. Rights as Shareholder. Until the issuance of the Shares (as evidenced by the
appropriate entry on the Company’s books or of a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other rights as a shareholder shall exist with respect to
the Optioned Stock, notwithstanding the exercise of the Option. The Shares shall be issued to the
Optionee as soon as practicable after the Option is exercised in accordance with the Option
Agreement. No adjustment shall be made for a dividend or other right for which the record date is
prior to the date of issuance except as provided in Section 12 of the Plan.



     5. Company’s Right of First Refusal. Before any Shares held by Optionee or any
transferee (either being sometimes referred to herein as the “Holder”) may be sold, gifted,
encumbered, pledged, transferred by operation of law, or otherwise transferred (each, a
“Transfer”), the Company or its assignee(s) shall have a right of first refusal to purchase
the Shares on the terms and conditions set forth in this Section (the “Right of First
Refusal”).



          (a) Notice of Proposed Transfer. The Holder of the Shares shall deliver to the
Company a written notice (the “Sale Notice”) stating: (i) the Holder’s bona fide intention
to



 









 






Transfer such Shares; (ii) the name of each proposed purchaser or other transferee
(“Proposed Transferee”); (iii) the number of Shares to be Transferred to each Proposed
Transferee; and (iv) the bona fide cash price or other consideration for which the Holder proposes
to Transfer the Shares (the “Offered Price”), and the Holder shall offer the Shares at the
Offered Price to the Company or its assignee(s).




          (b) Exercise of Right of First Refusal. At any time within 30 days after receipt of
the Sale Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder,
elect to purchase all, but not less than all, of the Shares proposed to be Transferred to any one
or more of the Proposed Transferees, at the purchase price determined in accordance with Section
5(c) below.




          (c) Purchase Price. The purchase price (“Purchase Price”) for the Shares
purchased by the Company or its assignee(s) under this Section shall be the Offered Price. If the
Offered Price includes consideration other than cash, then the cash equivalent value of the
non-cash consideration shall be determined in good faith by the Company’s Board of Directors.




          (d) Payment. Payment of the Purchase Price shall be made, at the option of the
Company or its assignee(s), in cash (by check), by cancellation of all or a portion of any
outstanding indebtedness of the Holder to the Company (or, in the case of repurchase by an
assignee, to the assignee), or by any combination thereof within 30 days after receipt of the Sale
Notice or in the manner and at the times set forth in the Sale Notice.




          (e) Holder’s Right to Transfer. If all of the Shares proposed in the Sale Notice to
be transferred to a given Proposed Transferee are not purchased by the Company and/or its
assignee(s) as provided in this Section 5, then the Holder may Transfer such Shares to that
Proposed Transferee at the Offered Price or at a higher price, provided that such Transfer is
consummated within 120 days after the date of the Sale Notice, that any such Transfer is effected
in accordance with any applicable securities laws, and that the Proposed Transferee agrees in
writing that the provisions of this Section 5 shall continue to apply to the Shares in the hands of
such Proposed Transferee. If the Shares described in the Sale Notice are not Transferred to the
Proposed Transferee within such period, then a new Sale Notice shall be given to the Company, and
the Company and/or its assignees shall again be offered the Right of First Refusal before any
Shares held by the Holder may be Transferred.




          (f) Exception for Certain Family Transfers. Notwithstanding anything to the contrary
contained in this Section 5, the Transfer of any or all of the Shares during the Optionee’s
lifetime or on the Optionee’s death by will or intestacy to the Optionee’s immediate family or a
trust for the benefit of the Optionee’s immediate family shall be exempt from the provisions of
this Section 5. “Immediate Family” as used herein shall mean spouse, lineal descendant or
antecedent, father, mother, brother, or sister. In such case, the transferee or other recipient
shall receive and hold the Shares so Transferred subject to the provisions of this Section 5, and
there shall be no further Transfer of such Shares except in accordance with the terms of this
Section 5.




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          (g) Termination of Right of First Refusal. The Right of First Refusal shall terminate
as to any Shares upon the earlier of (i) first sale of the Company’s Common Stock to the general
public, or (ii) a Change in Control in which the successor corporation has equity securities that
are publicly traded.




     6. Tax Consultation. Optionee understands that Optionee may suffer adverse tax
consequences as a result of Optionee’s purchase or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee deems advisable in connection with
the purchase or disposition of the Shares and that Optionee is not relying on the Company for any
tax advice.



     7. Restrictive Legends and Stop-Transfer Orders.



          (a) Legends. Optionee understands and agrees that the Company shall cause the legends
set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s)
evidencing ownership of the Shares together with any other legends that may be required by the
Company or by state or federal securities laws:





THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED,
OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE, OR
TRANSFER, PLEDGE, OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND A RIGHT OF FIRST REFUSAL HELD BY THE ISSUER OR ITS ASSIGNEE(S) AS SET
FORTH IN THE EXERCISE NOTICE BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE
SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH
TRANSFER RESTRICTIONS AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREES OF THESE
SHARES.



          (b) Stop-Transfer Notices. Optionee agrees that, in order to ensure compliance with
the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions
to its transfer agent, if any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.




          (c) Refusal to Transfer. The Company shall not be required (i) to transfer on its
books any Shares that have been Transferred in violation of any of the provisions of this Exercise
Notice or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to
any purchaser or other transferee to whom such Shares shall have been so Transferred.




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     8. Successors and Assigns. The Company may assign any of its rights under this
Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the
benefit of the successors and assigns of the Company. Subject to the restrictions on transfer
herein set forth, this Exercise Notice shall be binding upon Optionee and his or her heirs,
executors, administrators, successors, and assigns.



     9. Interpretation. Any dispute regarding the interpretation of this Exercise Notice
shall be submitted by Optionee or by the Company forthwith to the Administrator which shall review
such dispute at its next regular meeting. The resolution of such a dispute by the Administrator
shall be final and binding on all parties.



     10. Governing Law; Severability. This Exercise Notice is governed by the internal
substantive laws, but not the choice of law rules, of California.



     11. Entire Agreement. The Plan and Option Agreement are incorporated herein by
reference. This Exercise Notice, the Plan, the Restricted Stock Purchase Agreement, the Option
Agreement, and the Investment Representation Statement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the subject matter hereof,
and may not be modified adversely to the Optionee’s interest except by means of a writing signed by
the Company and Optionee.



	 	 	 
	Submitted by:

	 	Accepted by:
	 
	 	 
	OPTIONEE

	 	NEXTG NETWORKS, INC.
	 
	 	 
	 

	 	 
	Signature

	 	By
	 
	 	 
	 

	 	 
	Print Name

	 	Its
	 
	 	 
	Address:

	 	Address:
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	Date Received






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EXHIBIT B




INVESTMENT REPRESENTATION STATEMENT




	 	 	 	 	 
	OPTIONEE

	 	:	 	 
	 
	COMPANY

	 	:
	 	NEXTG NETWORKS, INC.
	 
	SECURITY

	 	:
	 	COMMON STOCK
	 
	AMOUNT

	 	:	 	 
	 
	DATE

	 	:	 	 





In connection with the purchase of the securities specified above (the “Securities”), the
undersigned Optionee represents to the Company the following:




          (a) Optionee is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and knowledgeable decision
to acquire the Securities. Optionee is acquiring these Securities for investment for Optionee’s
own account only and not with a view to, or for resale in connection with, any “distribution”
thereof within the meaning of the Securities Act of 1933, as amended (the “Securities
Act”).




          (b) Optionee acknowledges and understands that the Securities constitute “restricted
securities” under the Securities Act and have not been registered under the Securities Act in
reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the
bona fide nature of Optionee’s investment intent as expressed herein. In this connection, Optionee
understands that, in the view of the Securities and Exchange Commission, the statutory basis for
such exemption may be unavailable if Optionee’s representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the market price of the
Securities, or for a period of one year or any other fixed period in the future. Optionee further
understands that the Securities must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available. Optionee further
acknowledges and understands that the Company is under no obligation to register the Securities.
Optionee understands that the certificate evidencing the Securities will be imprinted with any
legend required under applicable state securities laws.




          (c) Optionee is familiar with the provisions of Rule 701 and Rule 144, each promulgated under
the Securities Act, which, in substance, permit limited public resale of “restricted securities”
acquired, directly or indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer qualifies under Rule 701
at the time of the grant of the Option to the Optionee, the exercise will be exempt from
registration under the Securities Act. In the event the Company becomes subject to the reporting
requirements





 









 




of Section 13 or 15(d) of the Securities Exchange Act of 1934, 90 days thereafter (or such longer
period as any market stand-off agreement may require) the Securities exempt under Rule 701 may be
resold, subject to the satisfaction of certain of the conditions specified by Rule 144, including:
(i) the resale being made through a broker in an unsolicited “broker’s transaction” or in
transactions directly with a market maker (as said term is defined under the Securities Exchange
Act of 1934); and, in the case of an affiliate, (ii) the availability of certain public information
about the Company, (iii) the amount of Securities being sold during any three month period not
exceeding the limitations specified in Rule 144(e), and (iv) the timely filing of a Form 144, if
applicable.


               In the event that the Company does not qualify under Rule 701 at the time of grant of the
Option, then the Securities may be resold in certain limited circumstances subject to the
provisions of Rule 144, which requires the resale to occur not less than one year after the later
of the date the Securities were sold by the Company or the date the Securities were sold by an
affiliate of the Company, within the meaning of Rule 144; and, in the case of acquisition of the
Securities by an affiliate, or by a non-affiliate who subsequently holds the Securities less than
two years, the satisfaction of the conditions set forth in subsections (i), (ii), (iii), and (iv)
of the paragraph immediately above.


          (d) Optionee further understands that in the event all of the applicable requirements of
Rule 701 or 144 are not satisfied, registration under the Securities Act, compliance with
Regulation A, or some other registration exemption will be required; and that, notwithstanding the
fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement securities other than in
a registered offering and otherwise than pursuant to Rules 144 or 701 will have a substantial
burden of proof in establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in such transactions do
so at their own risk. Optionee understands that no assurances can be given that any such other
registration exemption will be available in such event.



	 	 	 
	 	 	Signature of Optionee:
	 	 	 
	 	 	 
	 	 	 
	 	 	Date:
	 	 	 





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EXHIBIT C-1




NEXTG NETWORKS, INC.




2001 STOCK PLAN




RESTRICTED STOCK PURCHASE AGREEMENT




     THIS RESTRICTED STOCK PURCHASE AGREEMENT, dated                     ,                      is made by and between
                                         (the “Purchaser”) and NextG Networks, Inc. (the
“Company”) or its assignees of rights hereunder.



     Unless otherwise defined herein, the terms defined in the 2001 Stock Option Plan shall have
the same defined meanings in this Agreement.



RECITALS




     A. Pursuant to the exercise of the option granted to the Purchaser under the Plan and pursuant
to the Option Agreement dated                                         ,                      by and between the Company and the Purchaser
with respect to such grant (the “Option”), which Plan and Option Agreement are hereby
incorporated by reference, the Purchaser has elected to purchase                      of those shares of
Common Stock which have not become vested under the vesting schedule set forth in the Option
Agreement (“Unvested Shares”). The Unvested Shares and the shares subject to the Option
Agreement which have become vested are sometimes collectively referred to herein as the
“Shares.”



     B. As required by the Option Agreement, as a condition to the Purchaser’s election to exercise
the option, the Purchaser must execute this Agreement, which sets forth the rights and obligations
of the parties with respect to Shares acquired upon exercise of the Option.



     1. Repurchase Option.



          (a) If the Purchaser’s status as a Service Provider is terminated for any reason, including
for death and Disability, then the Company or its assignee of rights hereunder shall have the right
and option to purchase from the Purchaser or from the Purchaser’s personal representative, as the
case may be, all of the Purchaser’s Unvested Shares as of the date of such termination at the price
paid by the Purchaser for such Shares (the “Repurchase Option”).




          (b) Upon the occurrence of such termination, the Company may exercise its Repurchase Option by
delivering (personally or by registered mail) to the Purchaser (or the Purchaser’s transferee or
legal representative, as the case may be), within 90 days of the termination, a notice in writing
indicating the Company’s intention to exercise the Repurchase Option and setting forth a date for
closing not later than 30 days from the mailing of such notice. The closing shall take place at
the Company’s principal executive office or such other place as the Company shall reasonably
designate. At the closing, the holder of the certificates for the Unvested Shares being



 









 






transferred shall deliver the stock certificate or certificates evidencing the Unvested
Shares, and the Company shall deliver the purchase price therefor.




          (c) If the Company does not elect to exercise the Repurchase Option conferred above by giving
the requisite notice within 90 days after the termination, then the Repurchase Option shall
terminate.




          (d) The Repurchase Option shall terminate in accordance with the vesting schedule contained in
Optionee’s Option Agreement.




     2. Transferability of the Shares; Escrow.



          (a) The Purchaser hereby authorizes and directs the Company’s Secretary, or such other person
designated by the Company, to transfer the Unvested Shares as to which the Repurchase Option has
been exercised from the Purchaser to the Company.




          (b) To insure the availability for delivery of the Purchaser’s Unvested Shares upon repurchase
by the Company pursuant to the Repurchase Option under Section 1, the Purchaser hereby appoints the
Secretary, or any other person designated by the Company as escrow agent, as its attorney-in-fact
to sell, assign, and transfer unto the Company, such Unvested Shares, if any, repurchased by the
Company pursuant to the Repurchase Option and shall, upon execution of this Agreement, deliver and
deposit with the Company’s Secretary, or such other person designated by the Company, the share
certificates representing the Unvested Shares, together with the stock assignment duly endorsed in
blank, attached hereto as Exhibit C-2. The Unvested Shares and stock assignment shall be
held by the secretary in escrow, pursuant to the Joint Escrow Instructions of the Company and
Purchaser attached as Exhibit C-3 hereto, until the Company exercises its Repurchase
Option, until such Unvested Shares are vested, or until such time as this Agreement no longer is in
effect. Upon vesting of the Unvested Shares, the escrow agent shall promptly deliver to the
Purchaser the certificate or certificates representing such Shares in the escrow agent’s possession
belonging to the Purchaser, and the escrow agent shall be discharged of all further obligations
hereunder; provided, however, that the escrow agent shall nevertheless retain such certificate or
certificates as escrow agent if so required pursuant to other restrictions imposed pursuant to this
Agreement.




          (c) The Company, or its designee, shall not be liable for any act it may do or omit to do with
respect to holding the Shares in escrow and while acting in good faith and in the exercise of its
judgment.




          (d) Transfer or sale of the Shares is subject to restrictions on transfer imposed by any
applicable state and federal securities laws. Any transferee shall hold such Shares subject to all
the provisions hereof and the Exercise Notice executed by the Purchaser with respect to any
Unvested Shares purchased by Purchaser and shall acknowledge the same by signing a copy of this
Agreement.




     3. Ownership, Voting Rights, Duties. This Agreement shall not affect in any way the
Purchaser’s ownership, voting rights, or other rights or duties, except as specifically provided
herein.



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     4. Legends. The share certificate evidencing the Shares issued hereunder shall be
endorsed with the following legend (in addition to any legend required under applicable federal and
state securities laws):




THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS UPON
TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY
AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.



     5. Adjustment for Stock Split. All references to the number of Shares and the
purchase price of the Shares in this Agreement shall be appropriately adjusted to reflect any stock
split, stock dividend, or other change in the Shares which may be made by the Company pursuant to
Section 12 of the Plan after the date of this Agreement.



     6. Notices. Notices required hereunder shall be given in person or by registered mail
to the address of Purchaser shown on the records of the Company, and to the Company at their
respective principal executive offices.



     7. Survival of Terms. This Agreement shall apply to and bind the Purchaser and the
Company and their respective permitted assignees and transferees, heirs, legatees, executors,
administrators, and legal successors.



     8. Section 83(b) Election. The Purchaser hereby acknowledges that he or she has been
informed that, with respect to the exercise of an Option for Unvested Shares, an election (the
“Election”) may be filed by the Purchaser with the Internal Revenue Service, within thirty
30 days of the purchase of the exercised Shares, electing pursuant to Section 83(b) of the Code to
be taxed currently on any difference between the purchase price of the exercised Shares and their
Fair Market Value on the date of purchase. In the case of a Nonstatutory Stock Option, this will
result in a recognition of taxable income to the Purchaser on the date of exercise, measured by the
excess, if any, of the Fair Market Value of the exercised Shares, at the time the Option is
exercised over the purchase price for the exercised Shares. Absent such an Election, taxable
income will be measured and recognized by the Purchaser at the time or times on which the Company’s
Repurchase Option lapses. In the case of an Incentive Stock Option, such an Election will result
in a recognition of income to the Purchaser for alternative minimum tax purposes on the date of
exercise, measured by the excess, if any, of the Fair Market Value of the exercised Shares, at the
time the option is exercised, over the purchase price for the exercised Shares. Absent such an
Election, alternative minimum taxable income will be measured and recognized by Purchaser at the
time or times on which the Company’s Repurchase Option lapses. The Purchaser is strongly
encouraged to seek the advice of his or her own tax consultants in connection with the purchase of
the Shares and the advisability of filing of the Election under Section 83(b) of the Code. A form
of Election under Section 83(b) is attached hereto as Exhibit C-4 for reference.



          THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER’S SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF THE PURCHASER




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REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE PURCHASER’S BEHALF.




     9. Representations. The Purchaser has reviewed with his own tax advisors the federal,
state, local, and foreign tax consequences of this investment and the transactions contemplated by
this Agreement. The Purchaser is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Purchaser understands that the Purchaser
alone (and not the Company) shall be responsible for the Purchaser’s own tax liability that may
arise as a result of this investment or the transactions contemplated by this Agreement.



     10. Governing Law. This Agreement shall be governed by the internal substantive laws,
but not the choice of law rules, of California.



     The Purchaser represents that the Purchaser has read this Agreement and is familiar with its
terms and provisions. The Purchaser hereby agrees to accept as binding, conclusive, and final all
decisions or interpretations of the Board upon any questions arising under this Agreement.



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     IN WITNESS WHEREOF, this Restricted Stock Purchase Agreement is deemed made as of the date
first set forth above.



	 	 	 	 	 	 	 
	OPTIONEE	 	NEXTG NETWORKS, INC.
	 	 	 	 	 	 	 
	 	 	 
	Signature	 	By
	 	 	 	 	 	 	 
	 	 	 
	Print Name	 	Title
	 	 	 	 	 	 	 
	 	 	 
	 	 	 
	Residence Address	 	 
	 	 	 	 	 	 	 
	Dated:	 	 	,	 	 	 






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EXHIBIT C-2


ASSIGNMENT SEPARATE FROM CERTIFICATE


     FOR VALUE RECEIVED I,                                         , hereby sell, assign and transfer unto         
                              
               
shares of the Common Stock of NextG Networks, Inc. (the
“Company”) standing in my name of the books of the Company represented by Certificate
No.                      herewith and do hereby irrevocably constitute and appoint                                          to transfer
the such stock on the books of the Company with full power of substitution in the premises.


     This Stock Assignment may be used only in accordance with the Restricted Stock Purchase
Agreement between the Company and the undersigned dated                                         ,                     .


	 	 	 	 	 	 	 
	Dated: 	 	,	 	 	Signature: 	 



INSTRUCTIONS: Please do not fill in any blanks other than the signature line. The purpose of this
assignment is to enable the Company to exercise its repurchase option, as set forth in the
Restricted Stock Purchase Agreement, without requiring additional signatures from the Purchaser.



 








 




EXHIBIT C-3


JOINT ESCROW INSTRUCTIONS


                    ,                     


Corporate Secretary

NextG Networks, Inc.

1759 South Main Street, Suite 128

Milpitas, California 95035


Dear                                         :


     As Escrow Agent for both NextG Networks, Inc. (the “Company”), and the undersigned
purchaser of stock of the Company (the “Purchaser”), you are hereby authorized and directed
to hold the documents delivered to you pursuant to the terms of that certain Restricted Stock
Purchase Agreement (the “Agreement”) between the Company and the undersigned, in accordance
with the following instructions:


     1. In the event the Company and/or any assignee of the Company (referred to collectively for
convenience herein as the “Company”) exercises the Company’s repurchase option set forth in
the Agreement, the Company shall give to Purchaser and you a written notice specifying the number
of shares of stock to be purchased, the purchase price, and the time for a closing hereunder at the
principal office of the Company. The Purchaser and the Company hereby irrevocably authorize and
direct you to close the transaction contemplated by such notice in accordance with the terms of
said notice.


     2. At the closing, you are directed (a) to date the stock assignments necessary for the
transfer in question, (b) to fill in the number of shares being transferred, and (c) to deliver the
stock assignments, together with the certificate evidencing the shares of stock to be transferred,
to the Company or its assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock being purchased
pursuant to the exercise of the Company’s repurchase option.


     3. The Purchaser irrevocably authorizes the Company to deposit with you any certificates
evidencing shares of stock to be held by you hereunder and any additions and substitutions to such
shares as defined in the Agreement. The Purchaser does hereby irrevocably constitute and appoint
you as the Purchaser’s attorney-in-fact and agent for the term of this escrow to execute with
respect to such securities all documents necessary or appropriate to make such securities
negotiable and to complete any transaction herein contemplated, including but not limited to the
filing with any applicable state blue sky authority of any required applications for consent to,
or notice of transfer of, the securities. Subject to the provisions of this Section 3, the
Purchaser shall exercise all rights and privileges of a stockholder of the Company while the stock
is held by you.


 








 





     4. Upon the Purchaser’s written request, but no more than once per calendar year, unless the
Company’s repurchase option has been exercised, you will deliver to the Purchaser a certificate or
certificates representing so many shares of stock as are not then subject to the Company’s
repurchase option. Within 120 days after cessation of the Purchaser’s continuous employment by or
services to the Company, or any parent or subsidiary of the Company, you will deliver to the
Purchaser a certificate or certificates representing the aggregate number of shares held or issued
pursuant to the Agreement and not purchased by the Company or its assignees pursuant to exercise of
the Company’s repurchase option.



     5. If, at the time of termination of this escrow, you should have in your possession any
documents, securities, or other property belonging to then Purchaser, then you shall deliver all
such property to the Purchaser and shall be discharged of all further obligations hereunder.



     6. Your duties hereunder may be altered, amended, modified, or revoked only by a writing
signed by all of the parties hereto.



     7. You shall be obligated only for the performance of such duties as are specifically set
forth herein and may rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have been signed or presented by the
proper party or parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for the Purchaser while acting in good faith, and
any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.



     8. You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or corporation, excepting only orders or process of courts of
law and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case you obey or comply with any such order, judgment, or decree, you shall not be
liable to any of the parties hereto or to any other person, firm, or corporation by reason of such
compliance, notwithstanding any such order, judgment, or decree being subsequently reversed,
modified, annulled, set aside, vacated, or found to have been entered without jurisdiction.



     9. You shall not be liable in any respect on account of the identity, authorities, or rights
of the parties executing or delivering or purporting to execute or deliver the Agreement or any
documents or papers deposited or called for hereunder.



     10. You shall not be liable for the outlawing of any rights under the Statute of Limitations
with respect to these Joint Escrow Instructions or any documents deposited with you.



     11. You shall be entitled to employ such legal counsel and other experts as you may deem
necessary properly to advise you in connection with your obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation therefor.



     12. Your responsibilities as Escrow Agent hereunder shall terminate if you shall cease to be
an officer or agent of the Company or if you shall resign by written notice to each party. In the
event of any such termination, the Company shall appoint a successor Escrow Agent.



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     13. If you reasonably require other or further instruments in connection with these Joint
Escrow Instructions or obligations in respect hereto, then the necessary parties hereto shall join
in furnishing such instruments.


     14. It is understood and agreed that should any dispute arise with respect to the delivery
and/or ownership or right of possession of the securities held by you hereunder, you are authorized
and directed to retain in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree, or judgment of a court of competent jurisdiction
after the time for appeal has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.


     15. Any notice required or permitted hereunder shall be given in writing and shall be deemed
effectively given upon personal delivery or upon deposit in the United States Post Office, by
registered or certified mail with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses or at such other addresses as a party may designate
by ten days’ advance written notice to each of the other parties hereto.


     16. By signing these Joint Escrow Instructions, you become a party hereto only for the purpose
of said Joint Escrow Instructions; you do not become a party to the Agreement.


     17. This instrument shall be binding upon and inure to the benefit of the parties hereto, and
their respective successors and permitted assigns.


     18. These Joint Escrow Instructions shall be governed by the internal substantive laws, but
not the choice of law rules, of California.


	 	 	 		 	 	 
	PURCHASER		NEXTG NETWORKS, INC.
	 
	 	 	 
	Signature	 	By
	 
	 	 	 
	Print Name	 	Title
	 
	 	 	 
	 	 	 
	Residence Address	 	 
	 
	 
	ESCROW AGENT
	 
	 
	 	 	 
	Corporate Secretary	 	 
	 
	Dated:	 	 
	,	 	 	 





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EXHIBIT C-4 




[Attached]




 









 




THE FILING OF THIS SECTION 83(b) ELECTION IS THE PURCHASER’S RESPONSIBILITY.



THE FORM FOR MAKING THIS SECTION 83(b) ELECTION IS ATTACHED TO THIS AGREEMENT AS EXHIBIT C-4 AND
THE PURCHASER (AND NOT THE COMPANY OR ANY OF ITS AGENTS) SHALL BE SOLELY RESPONSIBLE FOR
APPROPRIATELY FILING SUCH FORM, EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS AGENTS TO MAKE
THIS FILING ON PURCHASER’S BEHALF AND EVEN IF THE COMPANY OR ITS AGENTS HAVE PREVIOUSLY MADE THIS
FILING ON PURCHASER’S BEHALF.





The election should be filed by mailing a signed election form by certified mail, return
receipt requested to the IRS Service Center where you file your tax returns. See WWW.IRS.GOV




 









 








INFORMATION REGARDING SECTION 83(b) ELECTION FILING



This information is being supplied to you in connection with your recent purchase of shares of
Common Stock of NextG Networks, Inc. (the “Company”).



One executed copy of the Section 83(b) election form must be filed with the Internal Revenue
Service (“IRS”) within thirty (30) days of the purchase of the shares. The steps outlined
below should be followed to ensure the election is filed correctly and timely:





	1)	 	Complete the Section 83(b) election form (attached);
	 
	2)	 	Prepare cover letter to the IRS (sample letter attached);
	 
	3)	 	Send cover letter with originally executed Section 83(b) form and one (1) additional copy via
certified mail or Federal Express to the IRS, within thirty (30) days of the date of purchase, with
a self-addressed stamped envelope; retain receipt of mailing;
	 
	4)	 	One copy should be returned to the Company for its records and one copy should be filed along
with your federal income tax return for this year; and
	 
	5)	 	Retain IRS file stamped copy in records when returned.




For your information, the address of the IRS (if you live in California) is as follows:




	 	 	 
	 

	 	Internal Revenue Service

5045 East Butler Avenue

Fresno, CA 93888






 









 





ELECTION UNDER SECTION 83(b) OF THE

INTERNAL REVENUE CODE





The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the Internal
Revenue Code, as amended, to include in gross income for the Taxpayer’s current taxable
year the excess, if any, of the fair market value of the property described below at the
time of transfer over the amount paid for such property, as compensation for services.




	1.	 	The name, address, taxpayer identification number, and taxable year of the undersigned are as
follows:





	 	 	 	 	 	 	 	 	 
	 	 	TAXPAYER	 	SPOUSE
	NAME:
	 	 	 	 	 	 	 	 
	ADDRESS:
	 	 	 	 	 	 	 	 
	TAXPAYER I.D. NUMBER:
	 	 	 	 	 	 	 	 
	TAXABLE YEAR:

	 	 	2001	 	 	 	2001	 







	2.	 	The property with respect to which the election is made is described as follows:
                    shares of Common Stock of NextG Networks, Inc., a Delaware corporation (the
“Company”), which is Taxpayer’s employer or the company for whom the Taxpayer performs
services.
	 
	2.	 	The date on which the shares were transferred was                     ,                     .
	 
	3.	 	The shares are subject to the following restrictions: The Company may repurchase all or a
portion of the shares at the Taxpayer’s original purchase price under certain conditions. The
right of repurchase lapses with respect to a portion of the shares over time and under certain
conditions.
	 
	4.	 	The fair market value of the shares (without regard to restrictions other than restrictions
which by their terms shall never lapse) was $                      per share at the time of transfer.
	 
	6.	 	The amount paid for such shares was $                      per share.
	 
	7.	 	The Taxpayer has submitted a copy of this statement to the Company.




This election must be filed with the Internal Revenue Service (“IRS”), at the office where
the Taxpayer files annual income tax returns, within 30 days after the date of transfer of the
property, and must also be filed with the Taxpayer’s income tax returns for the calendar year. The
election cannot be revoked without the consent of the IRS.




	 	 	 
	Dated:                                         , 2001

	 	 

Taxpayer
	 
	 	 
	The undersigned spouse of taxpayer joins in this election.
	 	 
	 
	 	 
	Dated:                                        , 2001
	 	 
	 

	 	 
	 

	 	Spouse of Taxpayer






 









 




                                        , 2001


Internal Revenue Service

5045 East Butler Avenue

Fresno, California 93888


Re:     Section 83(b) Election for purchase of NextG Networks, Inc. Common Stock


Ladies and Gentlemen:


     Enclosed is a completed form of election pursuant to Section 83(b) of the Internal Revenue
Code of 1986, as amended, relating to my recent purchase of                      shares of Common Stock of
NextG Networks, Inc.

Please acknowledge receipt of the enclosed by date-stamping the additional enclosed copy of this
election and returning it in the envelope provided.



	 	 	 
	 
	 	Sincerely,
	 
	 	 
	 
	 	 




Enclosure



 








 








PURCHASER ACKNOWLEDGMENT



Purchaser acknowledges that it is his sole responsibility to file within thirty (30) days of
purchase, an election under Section 83(b), and further acknowledges that he or she must include a
copy of such election with his or her personal income tax return.




	 	 	 
	 

	 	Acknowledged and Agreed:
	 
	 	 
	Dated:                                         
	 	 
	 

	 	 
	 

	 	Signature of Purchaser
	 
	 	 
	 

	 	Residence Address: