EXHIBIT 10.6
POWERWAVE TECHNOLOGIES, INC.
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is entered into
as of this ______ day of __________ , 19___, between ______________________
(hereinafter referred to as "Purchaser"), and POWERWAVE TECHNOLOGIES, INC., a
Delaware corporation (hereinafter referred to as the "Company"), pursuant to the
Company's 1996 Incentive Plan (the "Plan").
R E C I T A L S :
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A. Purchaser is an employee, director, consultant or other person who
provides services to the Company or a parent or subsidiary of the Company, as
those terms are defined in Sections 424(e) and 424(f) of the Internal Revenue
Code of 1986, as amended (a "Service Provider"), and in connection therewith has
rendered services for and on behalf of the Company.
B. The Company desires to issue shares of common stock to Purchaser
for the consideration set forth herein to provide an incentive for Purchaser to
remain a Service Provider of the Company and to exert added effort towards its
growth and success.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the parties agree as
follows:
1. ISSUANCE OF SHARES. The Company hereby offers to issue to Purchaser
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an aggregate of _____________ (_____ ) shares of the Common Stock, without par
value, of the Company (the "Shares") on the terms and conditions herein set
forth. Unless this offer is earlier revoked in writing by the Company, Purchaser
shall have ten (10) days from the date of the delivery of this Agreement to
Purchaser to accept the offer of the Company by executing and delivering to the
Company two copies of this Agreement, without condition or reservation of any
kind whatsoever, together with the consideration to be delivered by Purchaser
pursuant to Section 2 below.
2. CONSIDERATION. The purchase price for the Shares shall be $_____
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per share, or $________ in the aggregate, which shall be paid by the delivery of
Purchaser's check payable to the Company.
3. VESTING OF SHARES. The Shares acquired hereunder shall vest and
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become "Vested Shares" as follows:
On or After: The Shares Shall Be Vested As To:
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(i) the first anniversary of this Agreement: ___% of the Shares
(ii) the second anniversary of this Agreement: an additional ___% of the Shares
(iii) the third anniversary of this Agreement: an additional ___% of the Shares
(iv) the fourth anniversary of this Agreement: an additional ___% of the Shares
Shares which have not yet become vested are herein called "Unvested Shares." No
additional shares shall vest after the date of termination of Purchaser's
"Continuous Service" (as defined below). Notwithstanding the foregoing, the
Shares shall become immediately and fully vested immediately prior to the
consummation of a Change in Control that is not approved by a majority of the
Continuing Directors. As used herein, the term "Continuous Service" means (i)
employment by either the Company or any parent or subsidiary corporation of the
Company, which is uninterrupted except for vacations, illness (except for
permanent disability, as defined in Section 22(e)(3) of the Code) or leaves of
absence which are approved in writing by the Company or any of such other
employer corporations, if applicable, (ii) service as a member of the Board of
Directors of the Company, or (iii) so long as Purchaser is engaged as a
consultant or service provider to the Company.
4. RECONVEYANCE UPON TERMINATION OF SERVICE.
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(a) RECONVEYANCE OPTION. If at any time prior to five (5) years from
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the date of issuance of the Shares (the "Grant Date"), Purchaser should cease to
be a Service Provider of the Company or a parent or its subsidiaries, for any
reason (hereinafter referred to as the "Termination Date"), the Company shall
have the option to acquire (hereinafter referred to as the "Reconveyance
Option") from Purchaser all or part of the unvested Shares.
(b) CONSIDERATION FOR RECONVEYANCE OPTION. The Company shall pay
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Purchaser as consideration for the unvested Shares to be acquired upon exercise
of the Reconveyance Option the original purchase price paid by Purchaser.
(c) PROCEDURE FOR EXERCISE OF RECONVEYANCE OPTION. The Company shall
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have the right to exercise the Reconveyance Option by acquiring all or any part
of the Shares subject to the Reconveyance Option by delivery to Purchaser and/or
any other person obligated to transfer the Shares written notice of election to
purchase the Shares or any portion thereof within sixty (60) days following the
Termination Date. Such written notice shall indicate the number of Shares to be
purchased by the Company. In the event that the Company does not elect to
exercise the Reconveyance Option as to all or part of the Shares under the
provisions of this Section 4 by written notice to Purchaser within the period
specified above, the Reconveyance Option shall expire as to all Shares which the
Company has not elected to acquire.
(d) NOTIFICATION AND SETTLEMENT. In the event that the Company has
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elected to exercise the Reconveyance Option as to part or all of the Shares
within the period described above, Purchaser or such other person shall deliver
to the Company certificate(s) representing the Shares to be acquired by the
Company within thirty (30) days following the date of the notice from the
Company. The Company shall deliver to Purchaser against delivery of the Shares,
checks of the Company payable to Purchaser and/or any other person obligated to
transfer the
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Shares in the aggregate amount of the purchase price to be paid as set forth in
paragraph (b) above.
(e) DEPOSIT OF UNVESTED SHARES. Purchaser shall deposit with the
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Company certificates representing the unvested Shares, together with a duly
executed stock assignment separate from certificate in blank, which shall be
held by the Secretary of the Company. Purchaser shall be entitled to vote and
to receive dividends and distributions on all such deposited Shares.
(f) TERMINATION. The provisions of this Section 4 shall automatically
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terminate and the Shares shall not be subject to the Reconveyance Option upon
the consummation of a Change in Control that is not approved by a majority of
the Continuing Directors. In the event of a Change in Control not so approved,
the provisions of this Section 4 shall likewise terminate upon the consummation
of such transaction unless provision is made in writing in connection with such
transaction for the continuance or assumption of this Agreement or the
substitution for this Agreement of a new agreement of comparable value covering
shares of a successor corporation, with appropriate adjustments as to the number
and kind of shares and the purchase price, in which event this Agreement or the
new agreement substituted therefor shall continue in the manner and under the
terms so provided. If such provision is not made in such transaction, then the
Administrator shall cause written notice of the proposed transaction to be given
to Purchaser not less than fifteen (15) days prior to the anticipated effective
date of the proposed transaction, and the Shares, if not already fully vested,
shall concurrent with and conditioned upon the effective date of the proposed
transaction, be accelerated and become fully vested at such time.
5. RIGHT OF FIRST REFUSAL.
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(a) The Shares acquired pursuant to this Agreement which are subject
to the Reconveyance Option may be sold by the Purchaser only in compliance with
the provisions of this Section 5, and subject in all cases to compliance with
the provisions of Section 6 hereof. Prior to any intended sale, Purchaser shall
first give written notice (the "Offer Notice") to the Company specifying (i) his
or her bona fide intention to sell or otherwise transfer such Shares, (ii) the
name and address of the proposed purchaser(s), (iii) the number of Shares the
Purchaser proposes to sell (the "Offered Shares"), (iv) the price for which he
or she proposes to sell the Offered Shares, and (v) all other material terms and
conditions of the proposed sale.
(b) Within 30 days after receipt of the Offer Notice, the Company or
its nominee(s) may elect to purchase all or any portion of the Offered Shares at
the price and on the terms and conditions set forth in the Offer Notice by
delivery of written notice (the "Acceptance Notice") to the Purchaser specifying
the number of Offered Shares that the Company or its nominee(s) elect to
purchase. Within 15 days after delivery of the Acceptance Notice to the
Purchaser, the Company and/or its nominee(s) shall deliver to the Purchaser a
check in the amount of the purchase price of the Offered Shares to be purchased
pursuant to this Section 5, against delivery by the Purchaser of a certificate
or certificates representing the Offered Shares to be purchased, duly endorsed
for transfer to the Company or such nominee(s), as the case may be. However,
(i) should the purchase price specified in the Offered Notice be payable in
property other than cash or evidences of indebtedness, the Company or its
nominee(s) shall have
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the right to pay the purchase price in the form of cash equal in amount to the
value of such property, and (ii) if there is no purchase price for the intended
disposition, the Company or its nominee(s) shall have the right to purchase any
or all of the Offered Shares for a purchase price in the form of cash equal in
amount to the value of such Offered Shares. If the Purchaser and the Company or
its nominee(s) cannot agree on such cash value within ten (10) days after the
Company's receipt of the Offer Notice, the valuation shall be made by an
appraiser of recognized standing selected by the Purchaser and the Company or
its nominee(s) or, if they cannot agree on an appraiser within ten (10) days
after the Company's receipt of such notice, each shall select an appraiser of
recognized standing and the two appraisers shall designate a third appraiser of
recognized standing, whose appraisal shall be determinative of such value.
(c) If the Company and/or its nominee(s) do not elect to purchase all
of the Offered Shares, the Purchaser shall be entitled to sell the balance of
the Offered Shares to the purchaser(s) named in the Offer Notice at the price
specified in the Offer Notice or at a higher price and on the terms and
conditions set forth in the Offer Notice; provided, however, that any such sale
or disposition must not be effected in contravention of the representations made
by the Purchaser in Section 6 of this Agreement. Such sale or other transfer
must be consummated within 60 days from the date of the Offer Notice and any
proposed sale after such 60-day period may be made only by again complying with
the procedures set forth in this Section 5.
(d) The Purchaser may transfer all or any portion of the Shares to a
trust established for the sole benefit of the Purchaser and/or his or her spouse
or children without such transfer being subject to the right of first refusal
set forth in this Section 5, provided that the Shares so transferred shall
remain subject to the terms and conditions of this Agreement and no further
transfer of such Shares may be made without complying with the provisions of
this Section 5.
(e) Any transferee of the Shares pursuant to this Section 5, shall
hold the Shares subject to the terms and conditions of this Agreement and no
further transfer of the Shares may be made without complying with the provisions
of this Section 5.
(f) Until such time as the Company's right of first refusal lapses and
ceases to have effect pursuant to the provisions of Section 5(e), the stock
certificates for the Shares purchased pursuant to this Agreement shall be
endorsed with the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR ENCUMBERED, EXCEPT IN CONFORMITY WITH THE TERMS OF
A RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER OF THE SHARES (OR HIS PREDECESSOR IN INTEREST). SUCH
AGREEMENT GRANTS CERTAIN RIGHTS OF FIRST REFUSAL TO THE COMPANY (OR ITS
NOMINEE(S)) UPON THE SALE, ASSIGNMENT, TRANSFER, PLEDGE OR ENCUMBRANCE OF
THE SHARES. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY.
6. ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE. In the event that the
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outstanding Shares of Common Stock of the Company are hereafter increased or
decreased or
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changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of a recapitalization, stock split,
combination of shares, reclassification, stock dividend, or other change in the
capital structure of the Company, then Purchaser shall be entitled to new or
additional or different shares of stock or securities, in order to preserve, as
nearly as practical, but not to increase, the benefits of Purchaser under this
Agreement, in accordance with the provisions of Section 4.2 of the Plan. Such
new, additional or different shares shall be deemed "Shares" for purposes of
this Agreement and subject to all of the terms and conditions hereof.
7. SHARES FREE AND CLEAR. All Shares purchased by the Company pursuant
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to this Agreement shall be delivered by Purchaser free and clear of all claims,
liens and encumbrances of every nature (except the provisions of this Agreement
and any conditions concerning the Shares relating to compliance with applicable
federal or state securities laws), and the purchaser thereof shall acquire full
and complete title and right to all of the shares, free and clear of any claims,
liens and encumbrances of every nature (again except for the provisions of this
Agreement and such securities laws).
8. LIMITATION OF COMPANY'S LIABILITY FOR NONISSUANCE. The Company agrees
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to use its reasonable best efforts to obtain from any applicable regulatory
agency such authority or approval as may be required in order to issue and sell
the Shares to Purchaser pursuant to this Agreement. Inability of the Company to
obtain, from any such regulatory agency, authority or approval deemed by the
Company's counsel to be necessary for the lawful issuance and sale of the Shares
hereunder and under the Plan shall relieve the Company of any liability in
respect of the nonissuance or sale of such Shares as to which such requisite
authority or approval shall not have been obtained.
9. NOTICES. All notices, requests, consents and other communications
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hereunder shall be in writing and shall be deemed to have been duly given when
personally delivered or three (3) days after being mailed, by United States
certified or registered mail, prepaid, to the parties or their assignees at the
addresses set forth opposite their signatures below (or such other address as
shall be given in writing by either party to the other).
10. BINDING OBLIGATIONS. All covenants and agreements herein contained by
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or on behalf of any of the parties hereto shall bind and inure to the benefit of
the parties hereto and their permitted successors and assigns.
11. CAPTIONS AND SECTION HEADINGS. Captions and section headings used
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herein are for convenience only, and are not part of this Agreement and shall
not be used in construing it.
12. AMENDMENT. This Agreement may not be amended, waived, discharged, or
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terminated other than by written agreement of the parties.
13. ENTIRE AGREEMENT. This Agreement and the Plan constitute the entire
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agreement between the parties with respect to the subject matter hereof and
supersede all prior or contemporaneous written or oral agreements and
understandings of the parties, either express or implied.
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14. ASSIGNMENT. No party hereto shall have the right, without the prior
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written consent of the other party, to sell, assign, mortgage, pledge or
otherwise transfer any interest or right created hereby. This Agreement is made
solely for the benefit of the parties hereto, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue of
this Agreement.
15. SEVERABILITY. Should any provision or portion of this Agreement be
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held to be unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
16. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, all of which taken together shall constitute one agreement and any
party hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be binding upon Purchaser and the Company at such time as the
Agreement, in counterpart or otherwise, is executed by Purchaser and the
Company.
17. APPLICABLE LAW. This Agreement shall be construed under, and enforced
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in accordance with and governed by the laws of the State of California.
18. NO AGREEMENT TO EMPLOY. Nothing in this Agreement shall affect any
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right with respect to continuance of employment by the Company or any of its
subsidiaries. The right of the Company or any of its subsidiaries to terminate
at will the Purchaser's employment at any time (whether by dismissal, discharge
or otherwise), with or without cause, is specifically reserved, subject to any
other written employment agreement to which the Company and Purchaser may be a
party.
19. MARKET STANDOFF AGREEMENT. Optionee agrees in connection with any
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registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Optionee will not sell or otherwise dispose of any Purchased Shares without the
prior written consent of the Company or such underwriters, as the case may be,
for a period of time (not to exceed 180 days) from the effective date of such
registration as the Company or the underwriters may specify.
20. TAX ELECTIONS. Purchaser acknowledges that Purchaser has considered
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the advisability of all tax elections in connection with the purchase of the
Shares hereunder, including the making of an election under Section 83(b) under
the Internal Revenue Code of 1986, as amended, and that the Company has no
responsibility for the making of any such election.
21. ATTORNEYS' FEES. If any party shall bring an action in law or equity
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against another to enforce or interpret any of the terms, covenants and
provisions of this Agreement, the prevailing party in such action shall be
entitled to recover reasonable attorneys' fees and costs.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE COMPANY:
POWERWAVE TECHNOLOGIES, INC.
By:
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Name:
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Title:
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PURCHASER:
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---------------------------------
(print name)
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CONSENT AND RATIFICATION OF SPOUSE
The undersigned, the spouse of _____________________, a party to the
attached Restricted Stock Purchase Agreement (the "Agreement"), dated as of
_______________, hereby consents to the execution of said Agreement by such
party; and ratifies, approves, confirms and adopts said Agreement, and agrees to
be bound by each and every term and condition thereof as if the undersigned had
been a signatory to said Agreement, with respect to the Shares (as defined in
the Agreement) made the subject of said Agreement in which the undersigned has
an interest, including any community property interest therein.
I also acknowledge that I have been advised to obtain independent counsel
to represent my interests with respect to this Agreement but that I have
declined to do so and I hereby expressly waive my right to such independent
counsel.
Date: _______________________ ______________________________
______________________________
(Print Name)
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