EXHIBIT 99.3
Name of Optionee: ______________
OPTION GRANT
OF
TECHWAVE INC.
This is an option grant dated the date set forth on Schedule A hereto
(hereinafter, together with this Agreement, called the "Agreement") by
TechWave Inc., a Washington corporation (the "Company"), to _______________
(the "Optionee").
1. GRANT OF OPTION. The Company hereby grants to the Optionee, as a
matter of separate agreement and not in lieu of salary or of any other
compensation for services, the right and option (the "Option") to purchase
all or any part of an aggregate number of full shares of Common Stock set
forth in Schedule A on the terms and conditions set forth (i) herein and (ii)
on Schedule A. The date of grant of the Option is the date set forth in
Schedule A. Optionee may use the Notice of Exercise of Stock Option in the
form attached when you exercise the option.
2. NON-TRANSFER. The Option shall not be transferable by the Optionee
otherwise than by will or by the laws of descent and distribution, and the
Option is exercisable, during his lifetime, only by him. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this Option or
any right or privilege conferred hereby, contrary to the provisions hereof,
or upon the sale or levy or any attachment or similar process, the Option
thereupon shall terminate and become null and void. During an Optionee's
lifetime, the Option granted is personal to him and is exercisable solely by
Optionee.
3. EXERCISE OF OPTIONS. This Option shall be exercised in accordance
with the following terms and conditions:
3.1 PROCEDURE. This Option shall be exercised by delivery to the
Company of written notice of the number of shares with respect to which the
option is exercised.
3.2 PAYMENT. Payment of the option price shall be made in full
within 5 business days of the notice of exercise of the option and shall be
in cash or bank-certified or cashier's checks, or personal check if permitted
by the Board of Directors. To the extent permitted by applicable laws and
regulations (including, but not limited to, federal tax and securities laws
and regulations), an option may be exercised by delivery of shares of Common
Stock of the Company held by the Optionee having a fair market value equal to
the exercise price, such fair market value to be determined in good faith by
the Board of Directors. Such payment in stock may occur in the context of a
single exercise of the option or successive and simultaneous exercises,
sometimes referred to as "pyramiding," which provides that, rather than
physically exchanging certificates for a series of exercises, bookkeeping
entries will be made pursuant to which the Optionee is permitted to retain
his
existing stock certificate and a new stock certificate is issued for the
net shares.
If the Company's Common Stock is registered under the 1934 Act, and if
permitted by the Board of Directors, and to the extent permitted by
applicable laws and regulations, (including, but not limited to, federal tax
and securities laws and regulations) an option also may be exercised by
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 to pay the exercise price.
3.3 FEDERAL WITHHOLDING TAX REQUIREMENTS. Upon exercise of this
option, the Optionee shall, upon notification of the amount due and prior to
or concurrently with the delivery of the certificates representing the
shares, pay to the Company amounts necessary to satisfy applicable federal,
state and local withholding tax requirements or shall otherwise make
arrangements satisfactory to the Company for such requirements. Such
arrangements may include payment of the appropriate withholding tax in shares
of stock of the Company having a fair market value equal to such withholding
tax, either through delivery of shares held by the Optionee or by reduction
in the number of shares to be delivered to the Optionee upon exercise of such
option.
4. RIGHTS AS SHAREHOLDER. Optionee shall not have any rights as a
shareholder with respect to any shares subject to this Option until the date
that a stock certificate for such shares as to which Optionee has exercised
this Option has been issued to Optionee. Company shall issue such
certificate as expeditiously as possible.
5. TERMINATION OF EMPLOYMENT, DISABILITY AND DEATH.
5.1 GENERAL. If the employment of the Optionee by the Company shall
terminate by retirement or for any reason other than death or disability as
hereinafter provided, the option may be exercised by the Optionee at any time
prior to the expiration of three (3) months after the date of such
termination of employment (unless by its terms the Option sooner expires),
but only if, and to the extent the optionee was entitled to exercise the
option as provided herein.
5.2 DISABILITY. If the employment of the Optionee by the Company is
terminated because of the Optionee's disability (as herein defined), the
option may be exercised by the Optionee at any time prior to the expiration
of one (1) year after the date of such termination (unless by its terms the
Option sooner expires), but only if, and to the extent the Optionee was
entitled to exercise the option at the date of such termination. For
purposes of this Section 5, the Optionee will be considered to be disabled if
the Optionee is unable to engage in any substantial gainful activity by
reason of any medically determinable mental or physical impairment which can
be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.
5.3 DEATH. In the event of the death of the Optionee while in the
employ of the Company the option shall be exercisable on or prior to the
expiration of the option, but only if and to the extent the Optionee was
entitled to exercise the option at date of such death and only by the
Optionee's personal representative if then subject to administration as part
of the Optionee's estate, or by the person or persons to whom such Optionee's
rights under the option shall have passed by the Optionee's will or by the
applicable laws of descent and distribution.
6. REPURCHASE OF STOCK.
6.1 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The number and
class of shares covered by this Option and the exercise price per share
thereof (but not the total price), shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock of the
Company resulting from a split-up or consolidation of shares or any like
capital adjustment, or the payment of any stock dividend, or any other
increase or decrease in the number of shares of Common Stock of the Company
without the receipt of consideration by the Company.
6.2 TERMINATION OF EMPLOYMENT. In the event of termination of
employment of the Optionee on or before ____________ for any reason, the
options hereunder will not vest and be canceled resulting in the Optionee
receiving no options hereunder. In the event of a termination of employment
after _______________, Optionee will be allowed to keep all vested options.
The Company reserves the right to purchase Optionee's options at $1.50 per
option (minus 50-cent option price) if Optionee terminates employment with
the Company for any reason on or prior to March 11, 1999.
6.3 TERMINATION OF REPURCHASE OPTION. This repurchase option shall
terminate upon the earlier of the following to occur: (i) the Company
completes a public offering of its stock pursuant to an effective
registration statement under the Securities Act of 1933 or (ii) the Company
becomes subject to the periodic reporting requirements under Section 12(g),
13 or 15(d) of the Securities & Exchange Act of 1934.
7. SECURITIES REGULATION.
7.1 COMPLIANCE; CONDITION TO EXERCISE. Shares of Common Stock shall
not be issued with respect to this Option unless the exercise of this Option
and the issuance and delivery of such shares pursuant thereto shall comply
with all relevant provisions of law, including, without limitation, any
applicable state securities laws, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall further be subject to the approval
of counsel for the Company with respect to such compliance.
7.2 REPRESENTATIONS BY OPTIONEE. As a condition to the exercise of
this option, the Company may require the Optionee 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 option of counsel for the Company, such representation is
required by any relevant provision of the laws referred to in Section 6(a).
At the option of the Company, a stop transfer order against any shares may be
placed on the official stock books and records of the Company, and two
legends may be stamped on the stock certificate, one of which indicating that
the shares may not be pledged, sold or otherwise transferred unless an
opinion of counsel is provided (concurred in by counsel for the Company)
stating that such transfer is not in violation of any applicable law or
regulation, and the second of which indicating that the shares may not be
pledged, sold, or otherwise transferred except in compliance with, if
applicable, the Company's Shareholders' Agreement.
The Board of Directors may also require such other action or agreement by the
optionees as may from time to time be necessary to comply with the federal
and state securities laws.
8. OPTION ADJUSTMENTS.
8.1 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The number and
class of shares covered by this Option and the exercise price per share
thereof (but not the total price), shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock of the
Company resulting from a split-up or consolidation of shares or any like
capital adjustment, or the payment of any stock dividend, or any other
increase or decrease in the number of shares of Common Stock of the Company
without the receipt of consideration by the Company.
8.2 EFFECT OF CERTAIN TRANSACTIONS. If during Optionee's employment
with Company a merger, consolidation, acquisition of property or stock,
separation, reorganizations or liquidation of the Company occurs, as a result
of which the shareholders of the Company receive cash, stock or other
property in exchange for their shares of Common Stock, any option granted
hereunder shall terminate, shall vest immediately and Optionee shall have the
right to immediately prior to any such merger, consolidation, acquisition or
property or stock, separation, reorganizations or liquidation to exercise
these options in whole, or in part, whether or not the vesting requirements
set forth in the option agreement have been satisfied. In such event,
Company will offer the Optionee a loan in the full amount of the aggregate
exercise price on such terms and conditions as mutually acceptable to
Optionee and Company. In addition, in the event of an initial public
offering the Company's stock all of the options granted hereunder (to the
extent not already vested) shall vest immediately upon the closing of such
initial pubic offering.
8.3 FRACTIONAL SHARES. In the event of any adjustment in the number
of shares covered by any option, any fractional shares resulting from such
adjustment shall be disregarded and each such option shall cover only the
number of full shares resulting from such adjustment.
9. RESERVATION OF STOCK. The Company covenants that during the term this
Option is exercisable, the Company will reserve from its authorized and
unissued Common Stock the number of shares of Common Stock subject to this
Option (as may be adjusted under the terms of the Option). The Company
further covenants that all shares of Common Stock that may be issued upon the
exercise of this Option and payment of the purchase price as set forth herein
will be validly authorized, fully paid and nonassessable.
10. EMPLOYMENT RIGHTS. Nothing in this Option or right granted pursuant
hereto shall confer upon the Optionee any right to be continued in the
employment of the Company, a parent or any subsidiary of the Company or to
remain a director, or to interfere in any way with the right of the Company,
a parent or any subsidiary, in its sole discretion, to terminate the
Optionee's employment at any time or to remove the Optionee as a director at
any time.
11. REPLACEMENT OF OPTION. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft or destruction of this Option,
and, if requested, upon delivery of an indemnity agreement reasonably
satisfactory to the Company, the Company at its expense shall execute and
deliver, in lieu of this Option, a new replacement Option.
12. AMENDMENT. Any amendment of this Option may only occur in writing
with the consent of the Company and the Optionee.
13. NOTICES. Any notice or demand which either party may give to the
other hereunder shall be in writing and shall be effective when delivered
personally or sent by registered mail, postage prepaid, addressed, if to
Optionee, as set forth on Schedule A and if to Company, as follows:
TechWave Inc.
000 Xxxxx Xxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Either party may, by notice in writing, direct that future notices or
demands be sent to a different address.
14. GOVERNING LAW. This Option shall be governed by the laws of the
state of Washington.
DATED this ___ day of _______, ____
TECHWAVE INC.
By:
Its:
OPTION GRANT
OF
TECHWAVE INC.
SCHEDULE A
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1. Name and Address of Optionee:
2. Date of grant of this Option: _____________
3. This Option is: ( ) an Incentive Stock Option, or
( ) a Nonqualified Stock Option.
4. Number of shares of Common Stock covered by this Option: _______ shares.
5. Purchase price per share: $_________.
6. This Option expires on: __________.
7. This option shall become exercisable in increments with respect to the
following numbers of shares as set forth below:
Date on and after Portion of total
Which Option Option which
is exercisable is exercisable
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ACCEPTANCE AND ACKNOWLEDGMENT
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I accept the stock option dated ________ __, ____, granted by TechWave
Inc., and understand its terms and conditions.
Dated:
