World Wide WIreless Communications, Inc
NONSTATUTORY STOCK OPTION AGREEMENT
THIS NONSTATUTORY STOCK OPTION AGREEMENT ("Agreement") is made and entered
into as of the date set forth below, by and between WORLD WIDE WIRELESS
COMMUNICATIONS, Inc., a Nevada corporation (the "Company"), and the following
Director of the Company ("Optionee"):
In consideration of the covenants herein set forth, the parties hereto
agree as follows:
1. Option Information.
(a) Date of Option: October 10, 2000
(b) Optionee: XXXXXXXX XXX GUIDFAR
(c) Number of Shares: 100,000
(d) Exercise Price: $0.59/share (fifty-nine cents per share)
2. Acknowledgements.
(a) Optionee is a director of the Company.
(b) The Board of Directors (the "Board" which term shall include an
authorized committee of the Board of Directors) has authorized the granting
to Optionee of a nonstatutory stock option ("Option") to purchase shares of
common stock of the Company ("Stock") upon the terms and conditions
hereinafter stated and pursuant to an exemption from registration under the
Securities Act of 1933, as amended (the "Securities Act") provided by Rule
701 thereunder.
3. Shares; Price. The Company hereby grant to Optionee the right to
purchase, upon and subject to the terms and conditions herein stated, the number
of shares of Stock set forth in Section 1(c) above (the "Shares") for cash (or
other consideration as is authorized under the Plan and acceptable to the Board,
in their sole and absolute discretion) at the price per Share set forth in
Section 1(d) above (the "Exercise Price"), such price being the fair market
value per share of the Shares covered by this Option as of the date hereof
(unless Optionee is the owner of Stock possessing ten percent or more of the
total voting power or value of all outstanding Stock of the Company, in which
case the Exercise Price shall be no less than 110% of the fair market value of
such Stock).
4. Term of Option: Continuation of Service. This Option shall expire, and
all rights hereunder to purchase the Shares shall terminate, 5 years from the
date hereof. Nothing contained herein shall be construed to interfere in any way
with the right of the Company or its shareholders to remove or not elect
Optionee as a Director of the Company, or to increase or decrease the
compensation of Directors from the rate in effect at the date hereof.
5. Vesting of Option. Subject to the provisions of Sections 7 and 8
hereof, this Option shall become exercisable during the term that Optionee
serves as a Director of the Company or upon, or within thirty (30) days of his
resignation as a Director.
6. Exercise. This Option shall be exercised by delivery to the Company of
(a) written notice of exercise staling the number of Shares being purchased (in
whole shares only) and such other information set forth on the form of Notice of
Exercise attached hereto as Appendix A, (b) a check or cash in the amount of the
Exercise Price of the Shares covered by the notice (or such other consideration
as has been approved by the Board of Directors consistent with the Plan) and (c)
a written investment representation as provided for in Section 13 hereof. This
Option shall not be assignable or transferable, except by will or by the laws of
descent and distribution, and shall be exercisable only by Optionee during his
or her lifetime.
7. Termination of Service. If Optionee shall cease to serve as a Director
of the Company for any reason, no further installments shall vest pursuant to
Section 5, and the maximum number of Shares that Optionee may purchase pursuant
hereto shall be limited to the number of Shares that were vested as of the date
Optionee ceases to be a Director (to the nearest whole Share). Thereupon,
Optionee shall have the right to exercise this Option, at any time during the
remaining term hereof, to the extent, but only to the extent that this Option
was exercisable as of the date Optionee ceases to be a Director; provided,
however, if Optionee is removed as a Director pursuant to the [state]
corporation law, the foregoing right to exercise shall automatically terminate
on the date Optionee ceases to be a Director as to all Shares covered by this
Option not exercised prior to termination. Unless earlier terminated, all rights
under this Option shall terminate in any event on the expiration date of this
Option as defined in Section 4 hereof.
8. Death of Optionee. If the Optionee shall die while a Director of the
Company, Optionee's personal representative or the person entitled to Optionee's
rights hereunder may at any time within six (6) months after the date of
Optionee's death, a during the remaining term of this Option, whichever is the
lesser, exercise this Option and purchase Shares to the extent, but only to the
extent that Optionee could have exercised this Option as of the date of
Optionee's death; provided, in any case, that this Option may be so exercised
only to the extent that this Option has not previously been exercised by
Optionee.
9. No Rights as Shareholder. Optionee shall have no rights as a
shareholder with respect to the Shares covered by any installment of this Option
until the effective date of issuance of the Shares following exercise of this
Option, and no adjustment will be made for dividends or other rights for which
the record date is prior to the date such stock certificate or certificates are
issued except as provided in Section 7 hereof.
10. Recapitalization. Subject to any required action by the shareholders of
the Company, the number of Shares covered by this Option, and the Exercise Price
thereof, shall be proportionately adjusted for any increase or decrease in the
number of issued shares resulting from a subdivision or consolidation of shares
or the payment of a stock dividend, or any other increase or decrease in the
number of such shares effected without receipt of
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consideration by the Company; provided however that the conversion of any
convertible securities of the Company shall not be deemed having been "effected
without receipt of consideration by the Company".
In the event of a proposed dissolution or liquidation of the Company, a
merger or consolidation in which the Company is not the surviving entity, or a
sale of all or substantially all of the assets or capital stock of the Company
(collectively, a "Reorganization"), this Option shall terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Board; provided, however, if Optionee shall be a Director at the time such
Reorganization is approved by the stockholders, Optionee shall have the right to
exercise this Option as to all or any part of the Shares, without regard to the
installment provisions of Section 5, for a period beginning 30 days prior to the
consummation of such Reorganization and ending as of the Reorganization or the
expiration of this Option, whichever is earlier, subject to the consummation of
the Reorganization. In any event, the Company shall notify Optionee, at least 30
days prior to the consummation of such Reorganization, of his exercise rights,
if any, and that the Option shall terminate upon the consummation of the
Reorganization.
Subject to any required action by the shareholders of the Company, if the
Company shall be the surviving entity in any merger or consolidation, this
Option thereafter shall pertain to and apply to the securities to which a holder
of Shares equal to the Shares subject to this Option would have been entitled by
reason of such merger or consolidation, and the installment provisions of
Section 5 shall continue to apply.
In the event of a change in the shares of the Company as presently
constituted, which is limited to a / change of all of its authorized Stock
without par value into the same number of shares of Stock with a par value, the
shares resulting from any such change shall be deemed to be the Shares within
the meaning of this Option.
To the extent that the foregoing adjustments relate to shares or securities
of the Company, such adjustments shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as hereinbefore
expressly provided, Optionee shall have no rights by reason of any subdivision
or consolidation of shares of Stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class, and the number and price of Shares subject to this Option shall not
be affected by, and no adjustments shall be made by reason of, any dissolution,
liquidation, merger, consolidation or sale of assets or capital stock, or any
issue by the Company of shares of stock of any class or securities convertible
into shares of stock of any class.
The grant of this Option shall not affect in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
in its capital or business structure or to merge, consolidate, dissolve or
liquidate or to sell or transfer all or any part of its business or assets.
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11. Taxation upon Exercise of Option. Optionee understands that, upon
exercise of this Option, Optionee will recognize income, for Federal and state
income tax purposes, in an amount equal to the amount by which the fair market
value of the Shares, determined as of the date of exercise, exceeds the Exercise
Price. The acceptance of the Shares by Optionee shall constitute an agreement by
Optionee to report such income in accordance with then applicable law and to
cooperate with Company in establishing the amount of such income and
corresponding deduction to the Company for its income tax purposes. Withholding
for federal or state income and employment tax purposes will be made, it and as
required by law, from Optionee's then current compensation, or, if such current
compensation is insufficient to satisfy withholding tax liability, the Company
may require Optionee to make a cash payment to cover such liability as a
condition of the exercise of this Option.
12. Modification, Extension and Renewal of Options. The Board or Committee,
as described in the Plan, may modify, extend or renew this Option or accept the
surrender thereof (to the extent not theretofore exercised) and authorize the
granting of a new option in substitution therefore (to the extent not
theretofore exercised), subject at all times to the Plan, the Code.
Notwithstanding the foregoing provisions of this Section 1.2, no modification
shall, without the consent of the Optionee, alter to the Optionee's detriment or
impair any rights of Optionee hereunder.
13. Investment Intent; Restrictions on Transfer.
(a) Optionee represents and agrees that if Optionee exercises this
Option in whole or in part Optionee will in each case acquire the Shares
upon such exercise for the purpose of investment and not with a view to, or
for resale in connection with, any distribution thereof; and that upon such
exercise of this Option in whole or in part, Optionee (or any person or
persons entitled to exercise this Option under the provisions of Sections 7
and 8 hereof) shall furnish to the Company a written statement to such
effect, satisfactory to the Company in form and substance. If the Shares
represented by this Option are registered under the Securities Act, either
before or after the exercise of this Option in whole or in part, the
Optionee shall be relieved of the foregoing investment representation and
agreement and shall not be required to furnish the Company with the
foregoing written statement
(b) Optionee further represents that Optionee has had access to the
financial statements or books and records of the Company, has had the
opportunity to ask questions of the Company concerning its business,
operations and financial condition, and to obtain additional information
reasonably necessary to verify the accuracy of such information
(c) Unless and until the Shares represented by this Option are
registered under the Securities Act, all certificates representing the
Shares and any certificates subsequently issued in substitution therefor
and any certificate for any securities issued pursuant to any stock split,
share reclassification, stock dividend or other similar capital event stall
bear legends in substantially the following form:
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THESE SECURITIES HAVE NOT BEEN REGISTERED OR OTHERWISE
QUALIFIED UNDER THE SECURITIES ACT OF 1933 (THE `SECURITIES
AC]?') OR UNDER THE APPLICABLE OR SECURITIES LAWS OF ANY
STATE. NEITHER THESE SECURITIES NOR ANY INTEREST THEREIN MAY
BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR ANY
APPLICABLE SECURITIES LAWS OF ANY STATE, UNLESS PURSUANT TO
EXEMPTIONS THEREFROM. THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE BEEN ISSUED PURSUANT TO THAT CERTAIN
NONSTATUTORY STOCK OPTION AGREEMENT DATED OCTOBER 10, 2000
BETWEEN THE COMPANY AND THE ISSUE WHICH RESTRICTS THE
TRANSFER OF THESE SHARES WHICH ARE SUBJECT TO REPURCHASE BY
THE COMPANY UNDER CERTAIN CONDITIONS.
and/or such other legend or legends as the Company and its counsel deem
necessary or appropriate. Appropriate stop transfer instructions with respect to
the Shares have been placed with the Company's transfer agent.
14. Stand-off Agreement. Optionee agrees that, in connection with any
registration of the Company's securities under the Securities Act, and upon the
request of the Company or any underwriter managing an underwritten offering of
the Company's securities, Optionee shall not sell, short any sale of, loan,
grant an option for, or otherwise dispose of any of the Shares (other than
Shares included in the offering) without the prior written consent of the
Company or such managing underwriter, as applicable, for a period of up to one
year following the effective date of registration of such offering.
15. Restriction Upon Transfer. The Shares may not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise hypothecated by the
Optionee except as hereinafter provided.
(a) Repurchase Right on Termination Other Than by Removal. For the
purposes of this Section, a "Repurchase Event" shall mean an occurrence of
one of (i) termination of Optionee's service as a director; (ii) death of
Optionee; (iii) bankruptcy of Optionee, which shall be deemed to have
occurred as of the date on which a voluntary or involuntary petition in
bankruptcy is filed with a court of competent jurisdiction; (iv)
dissolution of the marriage of Optionee, to the extent that any of the
Shares are allocated as the sole and separate property of Optionee's spouse
pursuant thereto (in which case, this Section shall only apply to the
Shares so affected); or (v) any attempted transfer by the Optionee of
Shares, or any interest therein, in violation of this Agreement. Upon the
occurrence of a Repurchase Event and upon mutual agreement of the Company
and Optionee, the Company may repurchase all or
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any portion of the Shares of Optionee at a price equal to the fair value of
the Shares as of the date of the Repurchase Event
(b) Repurchase Right on Removal. In the event Optionee is removed as a
director pursuant to Section 302 or 304 of the California Corporations
Code, or Optionee voluntarily resigns as a director prior to the date upon
which the last installment of Shares becomes exercisable pursuant to
Section 5, then the Company shall have the right (but not an obligation) to
repurchase Shares of Optionee at a price equal to the Exercise Price. Such
right of the Company to repurchase Shares shall apply to 100% of the Shares
for one (1) year from the date of this Agreement; and shall thereafter
lapse ratably in equal annual increments on each anniversary of (he date of
this Agreement over the term of this Option specified in Section 4. In
addition, the Company shall have the right in the sole discretion of the
Board and without obligation, to repurchase upon removal or resignation all
or any portion of the Shares of Optionee, at a price equal to the fair
value of the Shares as of the date of such removal or resignation, which
right is not subject to the foregoing lapsing of rights. In the event the
Company elects to repurchase the Shares, the stock certificates
representing the same shall forthwith be returned to the Company for
cancellation.
(c) Exercise of Repurchase Right. Any Repurchase Right under
Paragraphs 15(a) or 15(b) shall be exercised by giving notice of exercise
as provided herein to Optionee or the estate of Optionee, as applicable.
Such right shall be exercised, and the repurchase price thereunder shall be
paid, by the Company within a ninety (90) day period beginning on the date
of notice to the Company of the occurrence of such Repurchase Event (except
in the case of termination or cessation of services as director, where such
option period shall begin upon the occurrence of the Repurchase Event).
Such repurchase price shall be payable only in the form of cash (including
a check drafted on immediately available funds) or cancellation of purchase
money indebtedness of the Optionee for the .Shares. If the Company can not
purchase all such Shares because it is unable to meet the financial tests
set forth in the [state] corporation law, the Company shall have the right
to purchase as many Shares as it is permitted to purchase under such
sections. Any Shares not purchased by the Company hereunder shall no longer
be subject to the provisions of this Section 15.
(d) Right of First Refusal. In the event Optionee desires to transfer
any Shares during his or her lifetime, Optionee shall first offer to sell
such Shares to the Company. Optionee shall deliver to the Company written
notice of the intended sale, such notice to specify the number of Shares to
be sold, the proposed purchase price and terms of payment and grant the
Company an option for a period of thirty days following receipt of such
notice to purchase the offered Shares upon the same terms and conditions.
To exercise such option, the Company shall give notice of that fact to
Optionee within the thirty (30) day notice period and agree to pay the
purchase price in the manner provided in the notice. If the Company does
not purchase all of the Shares so offered during foregoing option period,
Optionee shall be under no obligation to sell any of the offered Shares to
the Company, but may dispose of such Shares in any lawful manner during a
period of one hundred and eighty (180) days following the end
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of such notice period, except that Optionee shall not sell any such Shares
to any other person at a lower price or upon more favorable terms than
those offered to the Company.
(e) Acceptance of Restrictions. Acceptance of the Shares shall
constitute the Optionee's agreement to such restrictions and the legending
of his certificates with respect thereto. Notwithstanding such
restrictions, however, so long as the Optionee is the holder of the Shares,
or any portion thereof, he shall be entitled to receive all dividends
declared on and to vote the Shares and to all other rights of a shareholder
with respect thereto.
(f) Permitted Transfers. Notwithstanding any provisions in this
Section 1.5 to the contrary, the Optionee may transfer Shares subject to
this Agreement to his or her parents, spouse, children, or grandchildren,
or a trust for the benefit of the Optionee or any such transferee(s);
provided, that such permitted transferee(s) shall hold the Shares subject
to all the provisions of this Agreement (all references to the Optionee
herein shall in such cases refer mutatis mutandis to the permitted
transferee, except in the case of clause (iv) of Section 15(a), wherein the
permitted transfer shall be deemed to be rescinded); and provided further,
that notwithstanding any other provisions in this Agreement a permitted
transferee may not in turn, make permitted transfers without the written
consent of the Optionee and the Company.
(g) Release of Restrictions on Shares. All other restrictions under
this Section 15 shall terminate five (5) years following the date of this
Agreement, or when the Company's securities are publicly traded, whichever
occurs earlier.
16. Notices. Any notice required to be given pursuant to this Option or the
Plan shall be in writing and shall be deemed to be delivered upon receipt or, in
the case of notices by the Company, five (5) days after deposit in the U.S.
mail, postage prepaid, addressed to Optionee at the address last provided by
Optionee for use in Company records related to Optionee.
17. Agreement Subject to Plan: Applicable Law. This Option is made pursuant
to the Plan and shall be interpreted to comply therewith. A copy of such Plan is
available to Optionee, at no charge, at the principal office of the Company. Any
provision of this Option inconsistent with the Plan shall be considered void and
replaced with the applicable provision of the Plan. This Option has been
granted, executed and delivered in the State of California, and the
interpretation and enforcement shall be governed by the laws thereof and subject
to the exclusive jurisdiction of the courts therein.
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