WWW.EXFILE.COM, INC. -- 13438 -- DSL.NET, INC. -- EXHIBIT 10.2 TO FORM 10-Q




 

Exhibit
10.2




Form
of Non-Qualified Stock Option Agreement for Officers










DSL.NET,
INC.

 

NON-QUALIFIED
STOCK OPTION AGREEMENT

 

1. Grant
of Option.

 

DSL.NET,
INC., a Delaware corporation (the “Company”), hereby grants to [NAME OF OFFICER]
(the “Employee”), an option, pursuant to the Company’s Amended and Restated 2001
Stock Option and Incentive Plan (the “Plan”), to purchase an aggregate of
_________ shares (the “Shares”) of Common Stock, par value $.0005 per share
(“Common Stock”), of the Company at a price of $______ per share, purchasable as
set forth in and subject to the terms and conditions of this option agreement
and the Plan. The original date of grant of this option is ____________, and is
hereinafter referred to as the “Original Grant Date,” and the date ending one
hundred and twenty (120) months thereafter is herein referred to as the “Tenth
Anniversary Date.”

 

2. Exercise
of Option and Provisions for Termination.

 

(a) Except as
otherwise provided herein and subject to the right of cumulation provided
herein, this option may be exercised, prior to the Tenth Anniversary Date, as to
not more than the following number of shares of Common Stock covered by this
option during the respective periods set forth as follows: (i) none of the
shares of Common Stock covered by this option prior to __________, (ii)
16.66666% of the
shares of Common Stock covered by this option from and after ___________, and
(iii) an additional 2.77777% of the shares of Common Stock covered by this
option on each monthly anniversary of the Original Grant Date thereafter, until
fully vested, provided, however, that in the event there is no corresponding
monthly anniversary date in any given month, such additional amount shall vest
on the last day of such month (i.e., February 29 would correspond to January
31). 

 

Notwithstanding
anything herein to the contrary, in the event of a Change-in-Control (as defined
in Section 11(b) of the Plan), any portion of the option granted to the Employee
hereunder which would otherwise vest or become exercisable solely with the
passage of time and the Employee’s continued employment the Company, shall
immediately vest and become fully exercisable. 

 

Notwithstanding
anything herein to the contrary, in the event that the Employee’s employment
with the Company is terminated by the Company for any reason other than Cause
(as defined below), then the portion of the option granted hereunder which would
otherwise vest or become exercisable pursuant to this Section 2(a) within twelve
(12) months following the date of such termination shall immediately vest and
become fully exercisable. The term “Cause” shall mean the Employee’s (i)
habitual intoxication, (ii) illegal drug use or addiction, (iii) conviction of a
felony (or plea of guilty or nolo
contendere with
respect thereto) which in any material respect impairs the reputation of, or in
any material respect harms, the Company, (iv) material failure to perform his
agreements, duties or obligations as an employee of the Company, other than from
illness or injury, which failure is not cured by him within 30 days (or such
longer period as may be reasonably necessary to cure such failure) following
notice to him from the Company 

 




















 

setting
forth in reasonable detail the nature of such failure, or (v) commission of any
act, or failure to act, in bad faith which in any material respect impairs the
reputation of, or in any material respect harms, the Company.

 

The right
of exercise provided herein shall be cumulative so that if the option is not
exercised to the maximum extent permissible during any period it shall be
exercisable, in whole or in part, with respect to all shares not so purchased at
any time during any subsequent period prior to the expiration or termination of
this option.

 

This
option may not be exercised at any time after the Tenth Anniversary
Date.

 

(b) Subject
to the conditions hereof, this option shall be exercisable by the Employee
giving written notice of exercise to the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in accordance with Section 3 hereof. Such exercise shall
be effective upon receipt by the Treasurer of the Company of the written notice
together with the required payment. The Employee shall be entitled to purchase
less than the number of shares covered hereby, provided that no partial exercise
of this option shall be for less than 10 whole shares.

 

(c) Subject
to the provisions of Section 11 of the Plan, if the Employee ceases to be
employed by the Company or one of its subsidiaries for any reason, including
retirement but other than death, this option shall immediately terminate;
provided,
however, that
any portion of this option which was otherwise exercisable on the date of
termination of the Employee’s employment may be exercised within the three-month
period following the date on which the Employee ceased to be so employed, or, if
the Employee’s employment with the Company was terminated by the Company for a
reason other than Cause, the one-year period following such termination, but in
no event after the Tenth Anniversary Date. Any such exercise may be made only to
the extent of the number of shares subject to this option which are purchasable
upon the date of such termination of employment. If the Employee dies during
such three-month or one-year period, this option shall be exercisable by the
Employee’s personal representatives, heirs or legatees to the same extent and
during the same period that the Employee could have exercised this option on the
date of his or her death.

 

(d) If the
Employee dies while an employee of the Company or any subsidiary of the Company,
this option shall be exercisable, by the Employee’s personal representatives,
heirs or legatees, to the same extent that the Employee could have exercised
this option on the date of his or her death. This option or any unexercised
portion hereof shall terminate unless so exercised prior to the earlier of the
expiration of six months from the date of such death or the Tenth Anniversary
Date.

 

3. Payment
of Purchase Price.

 

(a) Payment
of the purchase price for shares purchased upon exercise of this option shall be
made by one or any combination of the following forms of payment:

 

(ii) by
delivery to the Company of cash or check payable to the order of the Company in
an amount equal to the purchase price of such shares; 

 

(ii) if the
Employee elects and the Company permits, subject to Section 3(b) below, by
delivery of shares of Common Stock of the Company having a fair market value
equal in amount to the purchase price of such shares; or

 



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(iii)
 if the
Employee elects and the Company permits, and the Common Stock is then traded on
a national securities exchange or on the Nasdaq National Market (or successor
trading system), by delivery of an irrevocable and unconditional undertaking,
satisfactory in form and substance to the Company, by a creditworthy broker to
deliver promptly to the Company sufficient funds to pay the exercise price, or
delivery by the Employee to the Company of a copy of irrevocable and
unconditional instructions, satisfactory in form and substance to the Company,
to a creditworthy broker to deliver promptly to the Company cash or a check
sufficient to pay the exercise price.

 

(b) If
Section 3(a)(ii) is applicable, and if the Employee delivers Common Stock held
by the Employee (“Old Stock”) to the Company in full or partial payment of the
exercise price and the Old Stock so delivered is subject to restrictions or
limitations imposed by agreement between the Employee and the Company, an
equivalent number of shares of Common Stock issued upon exercise of this option
shall be subject to all restrictions and limitations applicable to the Old Stock
to the extent that the Employee paid for the option shares by delivery of Old
Stock, in addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Employee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless such Common
Stock has been owned by the Employee free of any substantial risk of forfeiture
for at least six months.

 

(c) For the
purposes of Section 3(a)(ii) hereof, the fair market value of any share of the
Company’s Common Stock to be delivered to the Company in exercise of this option
shall be determined as of the last business day for which such prices or quotes
are available prior to the date of exercise and shall mean (i) the last reported
sale price (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common Stock is
then traded on a national securities exchange; (ii) the last reported sale price
(on that date) of the Common Stock on the Nasdaq National Market (or successor
trading system), if the Common Stock is not then traded on a national securities
exchange; or (iii) if the stock is not then traded on a national securities
exchange or listed on the Nasdaq National Market (or successor trading system),
the fair market value as determined in good faith by the Board of Directors of
the Company, in accordance with the terms of the Plan.

 

(d) If the
Employee elects to exercise options by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common Stock
of the Company to be delivered shall be duly executed in blank by the Employee
or shall be accompanied by a stock power duly executed in blank suitable for
purposes of transferring such shares to the Company. Fractional shares of Common
Stock of the Company will not be accepted in payment of the purchase price of
shares acquired upon exercise of this option.

 

4. Delivery
of Shares.

 

The
Company shall, upon payment of the purchase price for the number of shares
purchased and paid for, make (or cause to be made) prompt delivery of such
shares to the Employee, provided that if any law or regulation requires the
Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to complete such action. No shares shall be issued and
delivered upon exercise of any option unless and until, in the opinion of
counsel for the Company, any applicable registration requirements of the
Securities Act of 1933, any applicable listing requirements of any national
securities exchange or market on which stock of the same class is then listed,
and any other requirements of law or of any regulatory bodies having
jurisdiction over such issuance and delivery, shall have been fully complied
with.

 



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5. Non-transferability
of Option.

 

Except as
provided in Section 2(c) and Section 2(d) hereof, this option is personal and no
rights granted hereunder shall be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) nor shall any such rights
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option or of
such rights contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon this option or such rights, this option and
such rights shall become null and void.

 

6. No
Special Employment Rights.

 

Nothing
contained in the Plan or this Agreement shall be construed or deemed by any
person under any circumstances to bind the Company or any of its subsidiaries to
continue the employment of the Employee for the period within which this option
may be exercised. However, during the period of the Employee’s employment, the
Employee shall render diligently and faithfully the services which are assigned
to the Employee from time to time by the Board of Directors or by the executive
officers of the Company and its subsidiaries and shall at no time take any
action which directly or indirectly would be inconsistent with the best
interests of the Company or of its subsidiaries.

 

7. Rights
as a Stockholder.

 

The
Employee shall have no rights as a stockholder with respect to any shares which
may be purchased by exercise of this option unless and until a certificate or
certificates representing such shares are duly issued and delivered to the
Employee. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.

 

8. Recapitalization.

 

In the
event that dividends are payable in shares of Common Stock or in the event there
are splits, sub-divisions or combinations of shares of Common Stock subsequent
to the date hereof, the number of shares subject to this option shall be
increased or decreased proportionately, as the case may be, and the number of
shares deliverable upon the exercise thereafter of this option shall be
increased or decreased proportionately, as the case may be, without change in
the aggregate purchase price.

 

9. Reorganization.

 

In case
the Company is merged or consolidated with another corporation or entity and the
Company is not the surviving corporation, or in case the property or stock of
the Company is acquired by any other corporation, or in case of a reorganization
or liquidation of the Company, prior to the termination or expiration of this
option, the Employee shall, with respect to this option or any unexercised
portion thereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Section 11 of the Plan and Section 2
hereof.

 



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10. Withholding
Taxes.

 

Whenever
shares are to be issued upon exercise of this option, the Company shall have the
right to require the Employee to remit to the Company an amount sufficient to
satisfy any federal, state and local withholding tax requirements prior to the
delivery of any certificate or certificates for such shares.

 

11. Miscellaneous.

 

(a) Except as
provided herein, this Agreement may not be amended or otherwise modified unless
evidenced in writing and signed by the Company and the Employee.

 

(b) All
notices under this Agreement shall be mailed or delivered by hand to the parties
at their respective addresses set forth beneath their names below or at such
other address as may be designated in writing by either of the parties to one
another.

 

(c) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Connecticut.

 

 


 


	 	 	 
	Dated: 	DSL.NET,
  INC.
	 
 	 
 	 
 
		By:  	
	
      

        	
      

      Name:
	 	Title 
	 	 
	 	Address:  545 Long Wharf Drive
	 	New Haven, Connecticut
06511 



         


 


 



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EMPLOYEE’S
ACCEPTANCE




 

The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.


 





	 	 	 
	 	PARTICIPANT
	 
 	 
 	 
 
			
	 	
      


      Signature

	 	
      

       Address:
	 	
      

        



 

 


 















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