EX-10.2


     

    Exhibit
      10.2

    INCENTIVE
      STOCK OPTION AGREEMENT

    


    


    THIS
      INCENTIVE STOCK OPTION AGREEMENT is made as of ___________________ between
      TERABEAM, INC., a corporation organized under the laws of the State of Delaware
      (hereinafter called the “Corporation”),
      and
      ______________________ (hereinafter referred to as the “Employee”).

    


    WHEREAS,
      the Employee is in the employ of the Corporation or one of its affiliates and
      the Corporation considers it desirable and in its best interests to encourage
      the Employee as an eligible employee under its 2004 Stock Plan (the
“Plan”)
      to
      remain in such employ and to motivate the Employee to exert the Employee’s best
      efforts on behalf of the Corporation and its affiliates;

    


    NOW,
      THEREFORE, it is agreed as follows:

    


    1.     Grant
      of Option.
      The
      Corporation hereby grants to the Employee as of the date of this Agreement
      (“Date
      of Grant”)
      the
      right, privilege and option to purchase not more than _____________ shares
      (the “Grant
      Number”)
      of the
      Common Stock of the Corporation, par value $.01 per share, as constituted on
      the
      date of this Agreement pursuant to the terms, provisions and conditions of
      the
      Plan which is incorporated herein and made a part hereof by reference as if
      fully set forth herein at length and subject to the terms, provisions and
      conditions set forth below.

    


    2.     Option
      Price.
      The
      option price per share of Common Stock as constituted on the date of this
      Agreement, as determined in accordance with the Plan, shall be $____ per
      share.

    


    3.     Time
      of
      Exercise; Acceleration.
      This
      option will vest as to thirty-four percent (34%) of the Grant Number on the
      first annual anniversary of the Date of Grant and then as to eight and
      one-quarter percent (8.25%) of the Grant Number on the first day of each
      January, April, July, and October after the first annual anniversary of the
      Date
      of Grant until the option has vested in full (the day on which any options
      are
      scheduled to vest under this Agreement is referred to in this Agreement as
      a
“Vesting
      Date”);
      provided, however, that upon the event of (i) the completion of a merger or
      consolidation of the Corporation with any other entity (other than a merger
      or
      consolidation which would result in the shareholders of the Corporation
      immediately prior thereto continuing to own (either by remaining outstanding
      or
      by being converted into voting securities of the surviving entity or its parent)
      more than 50% of the combined voting power of the voting securities of the
      Corporation or such surviving entity (or its parent) outstanding immediately
      after such merger or consolidation), (ii) the sale of substantially all of
      the Corporation’s assets to another entity, or (iii) the sale of more than
      50% of the outstanding capital stock of the Corporation to an unrelated person
      or group of persons acting collectively in one or a series of transactions,
      fifty percent (50%) of the unvested options that would have vested on each
      Vesting Date (rounded down to the nearest whole number if necessary) will be
      immediately vested. Notwithstanding the foregoing sentence, (a) the number
      of
      options that will vest on each Vesting Date, if other than a whole number,
      will
      be rounded


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    down
      to
      the nearest whole number and (b) any fractional options resulting from the
      preceding clause will vest on the ninth Vesting Date.

    


    Only
      vested stock options may be exercised. This option may be exercised in whole
      or
      in part as to shares which have vested for not in excess of the difference
      between (i) the total number of shares then vested and (ii) the total
      number of shares as to which the option has been previously exercised. No
      partial exercise of this option within any year may be for less than 100 shares
      (or the remaining shares purchasable under this option if less than 100
      shares).

    


    4.     Method
      of Exercise.
      This
      option shall be exercisable from time to time as provided above by written
      notice in the form of Exhibit “A”, signed by the person entitled to exercise the
      option, setting forth in terms of shares of Stock as constituted on the date
      of
      this Agreement, the number of shares as to which this option is being exercised.
      Such notice shall be delivered to the Corporation at its principal place of
      business or as otherwise directed by the Corporation and be accompanied by
      the
      purchase price. Alternatively, the person entitled to exercise the option may
      exercise the option and pay the purchase price by any other method that may
      be
      authorized by the Corporation from time to time. The Corporation shall make
      prompt delivery of the shares of Stock as to which the option is exercised
      against payment of the purchase price; provided, however, that if any law or
      regulation requires the Corporation to take any action with respect to the
      Stock
      before the issuance thereof, then the date of delivery of the Stock shall be
      extended for the period necessary to take such action. 

    


    5.     Further
      Limitations on Exercise.

    


    A.     Termination
      of Employment.

    


    (i)     If
      Employee’s employment with or service to the Corporation terminates other than
      by reason of death or Disability, (a) no further vesting of this option will
      occur subsequent to the date of termination, and (b) this option will terminate
      on the date three months after the date of termination or on the option’s
      specified expiration date, if earlier. Nothing in this Agreement will be deemed
      to give the Employee the right to continued employment with the
      Corporation.

    


    (ii)     If
      Employee’s employment or other service to the Corporation is terminated due to
      the Employee’s death or Disability, this option may be exercised, up to that
      portion of the option which the Employee could have exercised on the date of
      death or Disability, by the Employee, or in the case of death, the Employee’s
      estate, personal representative or any beneficiary who has acquired the option
      by will or by the laws of descent and distribution, at any time prior to the
      earlier of the specified expiration date of this option or one year after the
      Employee’s death or Disability.

    


    B.     Condition
      to Exercise.
      As a
      condition of the Corporation's obligation to issue Stock upon exercise of this
      option, the Employee or other person entitled to exercise this option, if
      requested by the Corporation, shall concurrently with the exercise of this
      option execute an Agreement Not to Compete with the Corporation (in such form
      as
      adopted by the


    
      
         

      

      
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    Corporation
      from time to time), which obligates the Employee to refrain from certain
      activities (if the person exercising the option has not already executed such
      an
      agreement).

    


    C.     Payment.
      The
      option price shall be paid as follows: (i) by check, and/or (ii) to the
      extent the Stock is publicly traded, by delivery to the Corporation by the
      Employee of Stock already owned by such Employee, properly endorsed and having
      a
      fair market value equal to the purchase price (if permitted by the Corporation)
      and/or (iii) in any other manner permitted by the Corporation from time to
      time.
      For purposes of this Section 5(C), the market value of such stock to be
      delivered to the Corporation in payment of the option price shall be determined
      in accordance with the Plan.

    


    D.     Non-Transferability.
      This
      option is not transferable by the Employee, except by will or by laws of descent
      and distribution, and is exercisable during the Employee's lifetime only by
      the
      Employee.

    


    E.     Adjustment.
      If a
      dividend is declared upon the Stock payable in Stock, then the shares of Stock
      then subject to this option (and the number of shares reserved for issuance)
      shall be increased proportionately without any change in the aggregate purchase
      price. If the outstanding Stock is changed into or exchanged for a different
      number or class of shares of stock of the Corporation or of another corporation,
      whether through reorganization, recapitalization, stock split-up, combination
      of
      shares, merger or consolidation, then (i) there shall be substituted for each
      such share of Stock then subject to this option (and for each share reserved
      for
      issuance) the number and class of shares of Stock into which each outstanding
      share of Stock is so changed or exchanged, all without any change in the
      aggregate purchase price for the shares then subject to this option and (ii)
      the
      vesting schedule set forth in Section 3 above shall also be adjusted
      proportionately to reflect the impact of such reorganization, recapitalization,
      stock split-up, combination of shares, merger or consolidation.

    


    F.     Withholding
      Taxes.
      Whenever under this Agreement Stock is to be issued, the Corporation shall
      have
      the right to require the recipient to remit to the Corporation an amount
      sufficient to satisfy federal, state and local withholding tax requirements
      prior to delivery of any certificate or certificates representing the
      Stock.

    


    6.     Stock
      Ownership.
      An
      optionee shall be entitled to the privilege of stock ownership only as to such
      shares of Stock as are issued upon exercise of this option.

    


    7.     Requirements
      of Law.
      The
      granting of this option and issuance of shares of Stock upon the exercise of
      this option, and the Corporation’s obligations relating thereto, shall be
      subject to compliance with all of the applicable requirements of law with
      respect to the granting of this option and issuance and sale of such shares
      (including, without limitation, having an effective registration statement
      relating to such shares in force with the Securities and Exchange Commission).
      The Corporation shall not be required to take any action pursuant to this
      Agreement that would violate any applicable federal, state, local, or foreign
      law or require the Corporation to qualify to do business in, obtain any
      certifications or approvals from, or make any filings with any state, local,
      or
      foreign jurisdiction.


    
      
         

      

      
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    8.     Expiration
      Date.
      This
      option and all rights granted in this Agreement shall, in all events, expire
      five (5) years from the Date of Grant.

    


    9.   
 Legend.
      The
      Employee hereby agrees that the stock certificates delivered upon exercise
      of
      this option may bear a legend or legends in the form designated by the
      Corporation to ensure compliance with legal or contractual
      restrictions.

    


    10.    Definitions.
      Unless
      otherwise defined in this Agreement, the terms used in this Agreement shall
      have
      the same meanings as in the Plan. The term “Stock”
shall
      mean shares of Common Stock of the Corporation as constituted on the date of
      this Agreement and such other stock as shall be substituted therefor or issued
      thereon as provided in Section 5(E) above or as shall be substituted for or
      issued upon or in exchange for Stock issued pursuant to the
      options.

    


    11.    Disposition
      of Stock.
      The
      Employee acknowledges that the “incentive stock option” rules set forth in
      Section 422 of the Internal Revenue Code of 1986, as amended, will not be
      applicable to any Stock issued to the Employee pursuant to this Agreement if
      such Stock is disposed of either within two (2) years of the Date of Grant
      or
      within one (1) year of the issuance of such Stock to the Employee. The Employee
      shall give the Corporation prompt notice of a Disqualifying
      Disposition.

    


    12.    Notices.
      All
      notices under this Agreement shall be sufficient if in writing and delivered
      in
      hand or mailed, registered or certified mail, postage prepaid, and addressed
      to
      the Corporation at TERABEAM, INC., 2115 O’Nel Drive, San Jose, CA 95131, Attn:
      Chief Financial Officer or to the Employee at the most recent address of the
      Employee set forth in the personnel records of the Corporation. Either party
      may
      change the address to which notices shall be delivered by like notice given
      at
      least ten (10) days before the effective date of such change of
      address.

    


    13.    Binding
      Effect.
      This
      Agreement shall be binding upon and inure to the benefit of the Corporation,
      its
      successors and assigns, and the Employee, his legal representatives, heirs,
      legatees and assigns.

    


    14.    Governing
      Law.
      This
      Agreement shall be governed by and construed in accordance with the internal
      laws of the State of Delaware, U.S.A.

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
      as
      of the date and year first above written.

    


    
      	
              TERABEAM,
                INC.

            	
              Employee

            
	 	 
	 	 
	
              By:_________________________________

            	
              _____________________________________

            
	
              Name:

            	 
	
              Title:

            	 
	 	 


    

     


    
      
         

      

      
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    EXHIBIT
      A

    


    
      	 	
               

            
	 	
              (date)

            


    

    


    TERABEAM,
      INC.

    2115
      O’Nel Drive

    San
      Jose,
      CA 95131

    


    Ladies
      and Gentlemen:

    


    I
      wish to
      exercise my option to purchase ____________ shares of common stock, par value
      $.01 per share (the “Securities”)
      at a
      price of $_____ per share pursuant to the Incentive Stock Option Agreement
      dated
      as of ____________________ (the “Agreement”)
      under
      the Corporation’s 2004 Stock Plan.

    


    Check
      one of the following boxes:

    


    o     I
      enclose
      herewith my check for $_____________________ (the exercise amount).

    


    o     I
      am paying
      the exercise price by the following means which has been approved by the
      Corporation: ___________________________________________________

    ____________________________________________________________________________________________.

    


    I
      understand that prior to exercising any options I must have signed an Agreement
      Not to Compete with the Corporation (if requested by the Corporation)
      in the form adopted by the Corporation from time to time.

    


    I
      further
      agree that I will not make any sales or other transfers or dispositions of
      the
      securities covered by this letter during the time period following the closing
      of any public offering by the Corporation of its securities requested by the
      underwriter or, in the absence of such request, ninety (90) days.

    


    
      	 	
              Very
                truly yours,

            
	 	 
	 	 
	
              _______________________________________________

            	
              ____________________________________________________________

            
	
              Employee
                Social Security Number

            	
              Employee
                Signature (on line above)

            
	 	
              Employee
                Name
                (printed):____________________________

            


    

    


    
      	
              Employee’s
                Home Address:

            	 	
              Address
                to which certificates are to be sent 

              (complete
                ONLY if different than home address):

            
	 	 	 
	 	 	 
	 	 	 
	 	 	 


    

    


     

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