exv10w70






Exhibit 10.70









WARNING

Granting options to directors and officers under this plan may violate

NASD or stock exchange rules if the plan does not meet the broad based

plan exemption from shareholder approval







PC-TEL, INC.




2001 NONSTATUTORY STOCK OPTION PLAN




(NON-STOCKHOLDER APPROVED)




(as amended and restated November 7, 2008)





	 	1.	 	Purposes of the Plan. The purposes of this Nonstatutory 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 will be Nonstatutory Stock Options.






	 	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 of the Plan.



          (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 foreign country or jurisdiction where Options are, or will be, granted under the Plan.



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



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



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



          (f) “Common Stock” means the Common Stock of the Company.



          (g) “Company” means PC-Tel, Inc., a Delaware corporation.



 









 





          (h) “Consultant” means any person, including an advisor, engaged by the Company or a
Parent or Subsidiary to render services to such entity.



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



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



          (k) “Employee” means any person, including Officers, 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. Neither service as a
Director nor payment of a director’s fee by the Company shall be sufficient to constitute
“employment” by the Company.



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



          (m) “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, 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, the Fair Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the day of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems reliable;



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



          (n) “Notice of Grant” means a written or electronic notice evidencing certain terms
and conditions of an individual Option grant. The Notice of Grant is part of the Option Agreement.




          (o) “Officer” means a person who is an officer of the Company within the meaning of
Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.




          (p) “Option” means a nonstatutory stock option granted pursuant to the Plan, that is
not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code
and the regulations promulgated thereunder.




          (q) “Option Agreement” means an 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.




-2-









 





          (r) “Option Exchange Program” means a program whereby outstanding options are
surrendered in exchange for options with a lower exercise price.




          (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 Nonstatutory Stock Option Plan.




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




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




          (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 which may be optioned and sold under the Plan is seven
hundred and fifty thousand (750,000) 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, or is
surrendered pursuant to an Option Exchange Program, the unpurchased Shares which were subject
thereto shall become available for future grant or sale under the Plan (unless the Plan has
terminated).




     4. Administration of the Plan.



          (a) Administration. The Plan shall be administered by (i) the Board or (ii) a
Committee, which committee shall be constituted to satisfy Applicable Laws.




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




               (i) to determine the Fair Market Value of the Common Stock;



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



               (iii) to determine whether and to what extent Options are granted hereunder;



               (iv) to determine the number of shares of Common Stock to be covered by each Option granted
hereunder;



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



-3-









 





               (vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of
any award 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 shares of Common Stock relating thereto, based in each case
on such factors as the Administrator, in its sole discretion, shall determine;



               (vii) to reduce the exercise price of any Option to the then current Fair Market Value if the
Fair Market Value of the Common Stock covered by such Option shall have declined since the date the
Option was granted;



               (viii) to institute an Option Exchange Program;



               (ix) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan;



               (x) 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 qualifying for preferred
tax treatment under foreign tax laws;



               (xi) to modify or amend each Option (subject to Section 14(b) of the Plan), including the
discretionary authority to extend the post-termination exercisability period of Options longer than
is otherwise provided for in the Plan;



               (xii) to authorize any person to execute on behalf of the Company any instrument required to
effect the grant of an Option previously granted by the Administrator;



               (xiii) to determine the terms and restrictions applicable to Options;



               (xiv) 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 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 an Optionee 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



               (xv) to make all other determinations deemed necessary or advisable for administering the
Plan.



          (c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations
and interpretations shall be final and binding on all Optionees and any other holders of Options.




     5. Eligibility. Options may be granted to Service Providers; provided, however, that
notwithstanding anything to the contrary contained in the Plan, Options may not be granted to
Officers and Directors.



     6. Limitation. Neither the Plan nor any Option shall confer upon an Optionee any
right with respect to continuing the Optionee’s relationship as a Service Provider with the
Company, nor



-4-









 







shall they interfere in any way with the Optionee’s right or the Company’s right to terminate
such relationship at any time, with or without cause.



     7. Term of Plan. The Plan shall become effective upon its adoption by the Board. It
shall continue in effect for ten (10) years, unless sooner terminated under Section 14 of the Plan.



     8. Term of Option. The term of each Option shall be stated in the Option Agreement.



     9. Option Exercise Price and Consideration.



          (a) Exercise Price. The per share exercise price for the Shares to be issued pursuant
to exercise of an Option shall be determined by the Administrator, but shall be no less than one
hundred percent (100%) of the Fair Market Value per Share on the date of grant.




          (b) Waiting Period and Exercise Dates. At the time an Option is granted, the
Administrator shall fix the period within which the Option may be exercised and shall determine any
conditions which must be satisfied before the Option may be exercised.




          (c) Form of Consideration. The Administrator shall determine the acceptable form of
consideration for exercising an Option, including the method of payment. Such consideration may
consist entirely of:




               (i) cash;



               (ii) check;



               (iii) promissory note;



               (iv) surrender of other Shares (including as part of a pyramid exercise) which (A) shall be
valued at their Fair Market Value on the date of exercise, and (B) must be owned free and clear of
any liens, claims, encumbrances or security interests, if accepting such Shares, in the sole
discretion of the Administrator, shall not result in any adverse accounting consequences to the
Company;



               (v) consideration received by the Company under a cashless exercise program implemented by the
Company in connection with the Plan;



               (vi) by a net exercise arrangement pursuant to which the Company will reduce the number of
Shares issued upon exercise by the minimum whole number of Shares with a Fair Market Value
sufficient to pay the aggregate exercise price of the exercised Shares; provided however, that if
the Fair Market Value of the withheld shares exceeds the aggregate exercise price of the exercised
Shares, the excess shall be paid to Optionee; provided, further, that Shares will no longer be
outstanding under an Option and will not be exercisable thereafter to the extent that they are (A)
used to pay the exercise price pursuant to the “net exercise,” (B) delivered to Optionee as a
result of such exercise, or (C) withheld to satisfy tax withholding obligations;



               (vii) a reduction in the amount of any Company liability to the Optionee, including any
liability attributable to the Optionee’s participation in any Company-sponsored deferred
compensation program or arrangement;



-5-









 





               (viii) such other consideration and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws; or



               (ix) any combination of the foregoing methods of payment.



     10. Exercise of Option.



          (a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder
shall be exercisable according to the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Option Agreement. Unless the Administrator
provides otherwise, vesting of Options granted hereunder 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
books of the Company 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 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 prior to the date the Shares are issued, except as
provided in Section 12 of the Plan.



               Exercising an Option in any manner shall decrease 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.



          (b) Termination of Relationship as a Service Provider. If an Optionee ceases to be a
Service Provider, other than upon the Optionee’s death or Disability, the Optionee may exercise his
or her Option, but only within such period of time as is specified in the Option Agreement, and
only 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 such Option as set forth in the Option Agreement). In the absence of
a specified time in the Option Agreement, the Option shall remain exercisable for three (3) months
following the Optionee’s termination. If, on the date of termination, the Optionee is not vested
as to his or her entire Option, 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, 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, the Optionee may exercise his or her Option within such period
of time as is 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). In the absence of a specified time in the Option Agreement, the Option
shall remain exercisable for twelve (12) months following the Optionee’s termination. If, on the
date of termination, the Optionee is not vested as to his or her entire Option, the Shares covered
by the




-6-









 







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, 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, the Option may
be exercised within such period of time as is specified in the Option Agreement (but in no event
later than the expiration of the term of such Option as set forth in the Notice of Grant), by the
Optionee’s estate or by a person who acquires the right to exercise the Option by bequest or
inheritance, but only to the extent that the Option is vested on the date of death. In the absence
of a specified time in the Option Agreement, the Option shall remain exercisable for twelve (12)
months following the Optionee’s termination. If, at the time of death, the Optionee is not vested
as to his or her entire Option, the Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. The Option may be exercised by the executor or administrator of
the Optionee’s estate or, if none, by the person(s) entitled to exercise the Option under the
Optionee’s will or the laws of descent or distribution. If the Option is not so exercised within
the time specified herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.




          (e) Buyout Provisions. The Administrator may at any time offer to buy out for a
payment in cash or Shares, an Option previously granted based on such terms and conditions as the
Administrator shall establish and communicate to the Optionee at the time that such offer is made.




     11. Non-Transferability of Options. Unless determined otherwise by the Administrator,
an Option may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution and may be exercised, during
the lifetime of the Optionee, only by the Optionee. If the Administrator makes an Option
transferable, such Option shall contain such additional terms and conditions as the Administrator
deems appropriate.



     12. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale.



          (a) Changes in Capitalization. Subject to any required action by the shareholders of
the Company, the number of shares of Common Stock covered by each outstanding Option, and the
number of shares of Common Stock 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, as well as the price per share of Common Stock covered by each such
outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock 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;
provided, however, that 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 or price of shares of Common Stock 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 ten (10) days prior
to




-7-









 







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 prior to the consummation of such proposed action.




          (c) Merger or Asset Sale. In the event of a merger of the Company with or into
another corporation, or the sale of substantially all of the assets of the Company, each
outstanding Option shall be assumed or an equivalent option or right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Option, the Optionee shall fully vest
in and have the right to exercise the Option as to all of the Optioned Stock, including Shares as
to which it would not otherwise be vested or exercisable. If an Option becomes fully vested and
exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that the Option shall be fully
vested and exercisable for a period of fifteen (15) days from the date of such notice, and the
Option shall terminate upon the expiration of such period. For the purposes of this paragraph, the
Option shall be considered assumed if, following the merger or sale of assets, the option or right
confers the right to purchase or receive, for each Share of Optioned Stock, immediately prior to
the merger or sale of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets 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 sale of assets is not solely common
stock of the successor corporation or its Parent, 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 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 sale of assets.




     13. Date of Grant. The date of grant of an Option shall be, for all purposes, the
date on which the Administrator makes the determination granting such Option, or such other later
date as is determined by the Administrator. Notice of the determination shall be provided to each
Optionee 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) 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 prior to
the date of such termination.




     15. Conditions Upon Issuance of Shares.



-8-









 





          (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
Company 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, will at all
times reserve and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.




-9-