EXHIBIT 10.8
POWERWAVE TECHNOLOGIES, INC.
DIRECTOR STOCK OPTION AGREEMENT
(ANNUAL GRANT)
Powerwave Technologies, Inc., a Delaware corporation (the "Company"), has
granted to ________________________________________ (the "Optionee"), an option
to purchase a total of 5,000 shares of the Company's Common Stock (the "Optioned
Stock"), at the price determined as provided herein, and in all respects subject
to the terms, definitions and provisions of the 1996 Director Stock Option Plan
(the "Plan") adopted by the Company which is incorporated herein by reference.
The terms defined in the Plan shall have the same defined meanings herein.
1. NATURE OF THE OPTION. This Option is a nonstatutory option and is not
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intended to qualify for any special tax benefits to the Optionee.
2. EXERCISE PRICE. The exercise price is $____________________ for each
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share of Common Stock, which is 100% of the Fair Market Value of the Common
Stock as determined on the date of grant of this Option.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term
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in accordance with the provisions of Section 8 of the Plan as follows:
(a) RIGHT TO EXERCISE.
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(i) This Option shall become exercisable as to 100% of the
optional stock on the forth anniversary of the date of grant; provided, however,
that in no event shall this Option be exercisable until stockholder approval of
the Plan has been obtained in accordance with Section 16 thereof.
(ii) This Option may not be exercised for a fraction of a share.
(iii) In the event of Optionee's death, disability or other
termination of service as a Director, the exercisability of the Option is
governed by Sections 6, 7 and 8 of this Agreement.
(b) METHOD OF EXERCISE. This Option shall be exercisable by written
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notice which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised and such other
representations and agreements as to the holder's investment intent with respect
to such Shares of Common Stock as may be required by the Company pursuant to the
provisions of the Plan, in the form attached to this Agreement as Exhibit A.
Such written notice shall be signed by the Optionee and shall be delivered in
person or by certified mail to the Secretary of the Company. The written notice
shall be accompanied by payment of the exercise price.
4. METHOD OF PAYMENT. Payment of the exercise price shall be by any of
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the following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
(c) surrender of other Shares of Common Stock of the Company which
(i) either have been owned by the Optionee for more than 12 months on the date
of surrender or were not acquired, directly or indirectly, from the Company, and
(ii) have a Fair Market Value on the date of surrender equal to the exercise
price of the Shares as to which the Option is being exercised;
(d) delivery of a promissory note (the "Note") of Optionee in the
amount of the Exercise Price together with the execution and delivery by the
Optionee of the Security Agreement attached hereto as Exhibit B. The Note shall
be in the form attached hereto as Exhibit C, shall contain the terms and be
payable as set forth therein, shall bear interest at a rate no less than the
"applicable federal rate" prescribed under the Code and its regulations at the
time of purchase, and shall be secured by a pledge of the Shares purchased by
the Note pursuant to the Security Agreement; or
(e) delivery of a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds required to pay the exercise price.
5. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
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issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulations, or if such issuance
would not comply with the requirements of any stock exchange or market system
upon which the Shares may then be listed. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
6. TERMINATION OF CONTINUOUS STATUS AS A DIRECTOR. In the event
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Optionee's Continuous Status as a Director terminates (other than upon the
Optionee's death or permanent and total disability (as defined in Section
22(e)(3) of the Code)), the Optionee may exercise his or her Option, but only
within 30 days from the date of such termination, and only to the extent that
the Optionee was entitled to exercise it at the date of such termination (but in
no event later than the expiration of its five-year term). To the extent that
the Optionee was not entitled to exercise this Option at the date of such
termination, and to the extent that Optionee does not exercise this Option (to
the extent otherwise so entitled) within the time specified herein, the Option
shall terminate.
7. DISABILITY OF OPTIONEE. In the event Optionee's Continuous Status as
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a Director terminates as a result of his total and permanent disability (as
defined in Section 22(e)(3) of the Code), Optionee may exercise his or her
Option, but only within six months from the date of termination, and only to the
extent that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the date of expiration of its five-year
term). To the extent
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that Optionee was not entitled to exercise this Option at the date of
termination, and to the extent Optionee does not exercise this Option (to the
extent otherwise so entitled) within the time specified herein, the Option shall
terminate.
8. DEATH OF OPTIONEE. In the event of the Optionee's death while a
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Director, within 90 days after ceasing to be a Director because of a total and
permanent disability (as defined above) or after attainment of age 65, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option, but only within one year
following the date of death, and only to the extent that the Optionee was
entitled to exercise it at the date of death (but in no event later than the
date of expiration of its five-year term). To the extent that Optionee was not
entitled to exercise this Option at the date of death, and to the extent
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance does not exercise this Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate.
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
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any manner otherwise than by will, by the laws of descent or distribution or
pursuant to a qualified domestic relations order, and may be exercised during
the lifetime of Optionee only by the Optionee or a permitted transferee. The
terms of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
10. TERM OF OPTION. This Option may not be exercised more than five years
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from the date of grant of this Option, and may be exercised during such term
only in accordance with the Plan and the terms of this Option.
11. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon
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exercise of this Option, the Optionee will recognize income for tax purposes in
an amount equal to the excess of the then Fair Market Value of the Shares
purchased over the exercise price paid for such Shares. If the Optionee is
subject to Section 16(b) of the Securities Exchange Act of 1934, as amended, the
measurement and timing of such income may be deferred, and the Optionee is
advised to contact a tax advisor concerning the desirability of filing an 83(b)
election in connection with the exercise of the Option. Upon a resale of such
Shares by the Optionee, any difference between the sale price and the Fair
Market Value of the Shares on the date of exercise of the Option, to the extent
not included in income as described above, will be treated as capital gain or
loss.
DATE OF GRANT: ______________________________
POWERWAVE TECHNOLOGIES, INC., a Delaware
corporation
By:_____________________________________
Its:_________________________________
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The Optionee acknowledges receipt of a copy of the Plan, a copy of which is
annexed hereto, and represents that the Optionee is familiar with the terms and
provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. The Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board upon any
questions arising under the Plan.
Date: __________________
________________________________________
Optionee
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EXHIBIT A
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POWERWAVE TECHNOLOGIES, INC.
1996 DIRECTOR STOCK OPTION PLAN
EXERCISE NOTICE
Powerwave Technologies, Inc.
0000 XxXxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Secretary
1. Exercise of Option. Effective as of today, ______________, 199__, the
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undersigned ("Purchaser") hereby elects to purchase ______ shares (the "Shares")
of the Common Stock of Powerwave Technologies, Inc. (the "Company") under and
pursuant to the 1996 Director Stock Option Plan (the "Plan") and the Director
Stock Option Agreement dated __________, 199__ (the "Option Agreement"). The
purchase price for the Shares shall be $___________, as required by the Option
Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
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full purchase price for the Shares.
3. Representations of Optionee. Optionee acknowledges that Optionee has
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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 Stockholder. Subject to the terms and conditions of this
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Agreement, Optionee shall have all of the rights of a stockholder of the Company
with respect to the Shares from and after the date that Optionee delivers full
payment of the Exercise Price until such time as Optionee disposes of the
Shares.
5. Tax Consultation. Optionee understands that Optionee may suffer
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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.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
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incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and such
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agreement is governed by Delaware law except for that body of law pertaining to
conflict of laws.
Submitted by: Accepted by:
OPTIONEE POWERWAVE TECHNOLOGIES, INC.
____________________________________ By: __________________________________
Signature
____________________________________ Title: _______________________________
Print Name
Address: Address:
------- -------
____________________________________ 0000 XxXxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
____________________________________
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EXHIBIT B
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SECURITY AGREEMENT
This Security Agreement is made as of ____________, 19__, between Powerwave
Technologies, Inc., a Delaware corporation ("Pledgee"), and ____________________
("Pledgor").
RECITALS:
Pursuant to Pledgor's election to purchase Shares under the Option
Agreement dated ___________, 199__ (the "Option"), between Pledgor and Pledgee
under Pledgee's 1996 Director Stock Option Plan, and Pledgor's election under
the terms of the Option to pay for such shares with Pledgor's promissory note
(the "Note"), Pledgor has purchased _________ shares of Pledgee's Common Stock
(the "Shares") at a price of $__________ per share, for a total purchase price
of $__________. The Note and the obligations thereunder are as set forth in
Exhibit C to the Option.
NOW, THEREFORE, it is agreed as follows:
1. Creation and Description of Security Interest. In consideration of
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the transfer of the Shares to Pledgor under the Option Agreement, Pledgor,
pursuant to the California Commercial Code, hereby pledges all of such Shares
(herein sometimes referred to as the "Collateral") represented by certificate
number ______________, duly endorsed in blank or with executed stock powers, and
herewith delivers said certificate to the Secretary of Pledgee ("Pledgeholder"),
who shall hold said certificate subject to the terms and conditions of this
Security Agreement.
The pledged stock (together with an executed blank stock assignment for use
in transferring all or a portion of the Shares to Pledgee if, as and when
required pursuant to this Security Agreement) shall be held by the Pledgeholder
as security for the repayment of the Note, and any extensions or renewals
thereof, to be executed by Pledgor pursuant to the terms of the Option, and the
Pledgeholder shall not encumber or dispose of such Shares except in accordance
with the provisions of this Security Agreement.
2. Pledgor's Representations and Covenants. To induce Pledgee to enter
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into this Security Agreement, Pledgor represents and covenants to Pledgee, its
successors and assigns, as follows:
(a) Payment of Indebtedness. Pledgor will pay the principal sum of
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the Note secured hereby, together with interest thereon, at the time and in the
manner provided in the Note.
(b) Encumbrances. The Shares are free of all other encumbrances,
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defenses and liens, and Pledgor will not further encumber the Shares without the
prior written consent of Pledgee.
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(c) Margin Regulations. In the event that Pledgee's Common Stock is
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now or later becomes margin-listed by the Federal Reserve Board and Pledgee is
classified as a "lender" within the meaning of the regulations under Part 207 of
Title 12 of the Code of Federal Regulations ("Regulation G"), Pledgor agrees to
cooperate with Pledgee in making any amendments to the Note or providing any
additional collateral as may be necessary to comply with such regulations.
3. Voting Rights. During the term of this pledge and so long as all
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payments of principal and interest are made as they become due under the terms
of the Note, Pledgor shall have the right to vote all of the Shares pledged
hereunder.
4. Stock Adjustments. In the event that during the term of the pledge
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any stock dividend, reclassification, readjustment or other changes are declared
or made in the capital structure of Pledgee, all new, substituted and additional
shares or other securities issued by reason of any such change shall be
delivered to and held by the Pledgee under the terms of this Security Agreement
in the same manner as the Shares originally pledged hereunder. In the event of
substitution of such securities, Pledgor, Pledgee and Pledgeholder shall
cooperate and execute such documents as are reasonable so as to provide for the
substitution of such Collateral and, upon such substitution, references to
"Shares" in this Security Agreement shall include the substituted shares of
capital stock of Pledgor as a result thereof.
5. Options and Rights. In the event that, during the term of this
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pledge, subscription Options or other rights or options shall be issued in
connection with the pledged Shares, such rights, Options and options shall be
the property of Pledgor and, if exercised by Pledgor, all new stock or other
securities so acquired by Pledgor as it relates to the pledged Shares then held
by Pledgeholder shall be immediately delivered to Pledgeholder, to be held under
the terms of this Security Agreement in the same manner as the Shares pledged.
6. Default. Pledgor shall be deemed to be in default of the Note and of
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this Security Agreement in the event:
(a) Payment of principal or interest on the Note shall be delinquent
for a period of 10 days or more; or
(b) Pledgor fails to perform any of the covenants set forth in the
Option or contained in this Security Agreement for a period of 10 days after
written notice thereof from Pledgee.
In the case of an event of Default, as set forth above, Pledgee shall have
the right to accelerate payment of the Note upon notice to Pledgor, and Pledgee
shall thereafter be entitled to pursue its remedies under the California
Commercial Code.
7. Release of Collateral. Subject to any applicable contrary rules under
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Regulation G, there shall be released from this pledge a portion of the pledged
Shares held by Pledgeholder hereunder upon payments of the principal of the
Note. The number of the pledged Shares which shall be released shall be that
number of full Shares which bears the same proportion to the initial number of
Shares pledged hereunder as the payment of principal bears to the initial full
principal amount of the Note.
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8. Withdrawal or Substitution of Collateral. Pledgor shall not sell,
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withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
9. Term. The within pledge of Shares shall continue until the payment of
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all indebtedness secured hereby, at which time the remaining pledged stock shall
be promptly delivered to Pledgor, subject to the provisions for prior release of
a portion of the Collateral as provided in paragraph 7 above.
10. Insolvency. Pledgor agrees that if a bankruptcy or insolvency
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proceeding is instituted by or against it, if a receiver is appointed for the
property of Pledgor or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due and
payable, and Pledgee may proceed as provided in the case of default.
11. Pledgeholder Liability. In the absence of willful or gross negligence,
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Pledgeholder shall not be liable to any party for any of Pledgeholder's acts, or
omissions to act, as Pledgeholder.
12. Invalidity of Particular Provisions. Pledgor and Pledgee agree that
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the enforceability or invalidity of any provision or provisions of this Security
Agreement shall not render any other provision or provisions herein contained
unenforceable or invalid.
13. Successors or Assigns. Pledgor and Pledgee agree that all of the terms
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of this Security Agreement shall be binding on their respective successors and
assigns, and that the term "Pledgor" and the term "Pledgee" as used herein shall
be deemed to include, for all purposes, the respective designees, successors,
assigns, heirs, executors and administrators.
14. Governing Law. This Security Agreement shall be interpreted and
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governed under the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
"PLEDGOR" By:________________________________________
___________________________________________
Print Name
Address: ___________________________________________
___________________________________________
"PLEDGEE" POWERWAVE TECHNOLOGIES, INC.,
a Delaware corporation
By:________________________________________
Title:_____________________________________
"PLEDGEHOLDER" ___________________________________________
Secretary of Powerwave Technologies, Inc.
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EXHIBIT C
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INSTALLMENT NOTE
$____________________ Irvine, California
______________________,19__
FOR VALUE RECEIVED, _________________________ promises to pay to Powerwave
Technologies, Inc., a Delaware corporation (the "Company"), or order, the
principal sum of $______________, together with interest on the unpaid principal
hereof from the date hereof at the rate of ___% per annum, compounded
semiannually.
Principal and interest shall be due and payable on _____________, 199__.
Should the undersigned fail to make full payment of any installment of principal
or interest for a period of 10 days or more after the due date thereof, the
whole unpaid balance on this Note of principal and interest shall become
immediately due at the option of the holder of this Note. Payments of principal
and interest shall be made in lawful money of the United States of America.
The undersigned may at any time prepay all or any portion of the principal
or interest owing hereunder.
This Note is subject to the terms of the Option, dated as of _____________,
199__. This Note is secured by a pledge of the Company's Common Stock under the
terms of a Security Agreement of even date herewith and is subject to all the
provisions thereof.
In the event the undersigned shall cease to be a director of the Company
for any reason, this Note shall, at the option of the Company, be accelerated,
and the whole unpaid balance on this Note of principal and accrued interest
shall be immediately due and payable.
Should any action be instituted for the collection of this Note, the
reasonable costs and attorneys' fees therein of the holder shall be paid by the
undersigned.
___________________________________
___________________________________
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