EXHIBIT 99.5
KEY EMPLOYEE Name of Optionee: ____________________
OPTION GRANT
This is an option grant dated the date set forth on Schedule A hereto
hereinafter, together with this Agreement. called the "Agreement") to
____________________________ (the "Optionee").
1. GRANT OF OPTION. The Optionee is hereby granted, 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 TechWave Common Stock set forth in Schedule A
on the terms and conditions set forth (i) herein. and (ii) in 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 exercising
the Option.
2. NONTRANSFERABLE. The Option shall not be transferable by Optionee
otherwise than by will or by the laws of descent and distribution, and the
Option is exercisable, during Optionee's lifetime, only by Optionee. 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 Optionee and is exercisable solely
by Optionee.
3. EXERCISE OF OPTIONS. The Option shall be exercised in accordance with
the following terms and conditions:
(a) PROCEDURE. The Option shall be exercised by delivery to TechWave,
Inc., a Washington corporation (the "Company") of written notice of the number
of shares with respect to which the Option is exercised.
(b) 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), the Option may be exercised by delivery of shares of Common Stock
of the Company held by 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 Optionee is permitted to retain his or
her 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) the 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.
(c) FEDERAL WITHHOLDING TAX REQUIREMENTS. Upon exercise of the Option,
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 Optionee or by reduction in the number of shares to be delivered to
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 reasonably possible.
5. REPRESENTATIONS BY OPTIONEE. As a condition to the exercise of this
Option, the Company may require Optionee to make certain representations and
warranties necessary to comply with federal and state securities laws.
6. TERMINATION OF EMPLOYMENT, DISABILITY AND DEATH.
(a) TERMINATION BY EMPLOYEE. Should Optionee voluntarily resign or
terminate his or her employment with E-Warehouse Inc., a Canadian federal
corporation ("E-Warehouse") at any time on or before June 5, 1999, the Option
and any and all underlying shares subject to purchase under the Option, whether
vested or unvested at the time of resignation or termination, will be
immediately null, void and forfeited. Should Optionee voluntarily resign or
terminate his or her employment with XXxxxxxxxx at any time after June 5, 1999
and on or before December 5, 1999, 50 percent of the Option shares and 50
percent of any and all underlying shares subject to purchase under the Option,
whether vested or unvested at the time of resignation or termination, will be
immediately null, void and forfeited. Should Optionee voluntarily resign or
terminate his or her employment with E-Warehouse at any time after December 5,
1999 and on or before June 5, 2000, 25 percent of the Option shares and 25
percent of any and all underlying shares subject to purchase under the Option,
whether vested or unvested at the time of resignation or termination, will be
immediately null, void and forfeited.
(b) TERMINATION BY COMPANY. Should Optionee's employment with
E-Warehouse, a Parent or a Subsidiary be terminated or cease due to reduction in
force by E-Warehouse, a Parent or a Subsidiary for any reason except for cause,
any and all shares under the Option will vest
immediately upon the date of such termination and the Option may be exercised
by Optionee at any time prior to the expiration of one hundred twenty (120)
days after the date of such termination (unless by its terms the Option
sooner terminates or expires). For the purposes of this section, "cause"
shall mean dismissal for dishonesty, conviction of confession of a crime
punishable by law (except minor violations), intoxication while at work,
fraud or disclosure of confidential information.
(c) DISABILITY. If the employment of Optionee by E-Warehouse, a Parent or
a Subsidiary is terminated because of Optionee's disability (as herein defined),
any and all shares under the Option will vest immediately upon the date of such
termination and the Option may be exercised by Optionee at any time prior to the
expiration of ninety (90) days after the date of such termination (unless by its
terms the Option sooner terminates or expires). For purposes of this Section 7,
an Optionee will be considered to be disabled if 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.
(d) DEATH. In the event of the death of an Optionee while in the employ
of E-Warehouse, a Parent or a Subsidiary, any and all shares under the Option
will vest immediately upon the date of such event and the Option may be
exercised by Optionee at any time prior to the expiration of ninety (90) days
after the date of such event (unless by its terms the Option sooner terminates
or expires), only by Optionee's personal representative if then subject to
administration as part of Optionee's estate, or by the person or persons to whom
such Optionee's rights under the Option shall have passed by Optionee's will or
by the applicable laws of descent and distribution.
7. 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 Option,
as set forth on Schedule A and if to Company, as follows:
TechWave Inc.
000 Xxxxx Xxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Either party may, by notice In writing, direct that future notices or
demands be sent to a different address.
8. RIGHT TO REPURCHASE STOCK. In the event Optionee's employment by
E-Warehouse ceases or terminates, for any reason whatsoever, prior to three (3)
years after the grant date of the Option, the Company at such time shall have
the option for a period of sixty (60) days following the date of exercise of the
Option to purchase all or any part of the Common Stock acquired pursuant to the
Option then owned by such terminated Optionee at a cash price equal to $5.00 US
per share. Notwithstanding the foregoing, this right to repurchase terminates
upon the earlier of the Company's common stock being sold publicly or the filing
of a registration statement for the
Company's common stock with the Securities and Exchange Commission.
9. GOVERNING LAW. This Option shall be governed by the laws of the State of
Washington.
DATED this ___ day of _____________, 19 ___.
TECHWAVE INC.
By:
Its:
OPTION GRANT
OF
TECHWAVE INC.
SCHEDULE A
1. Name and Address of Optionee:
2. Date of grant of this Option: 6/5/98
3. This Option is: ( ) an Incentive Stock Option, or
(x) a Nonqualified Stock Option.
4. Number of shares of Common Stock covered by this Option: _____ shares.
5. Purchase price per share: $2.00.
6. This Option expires on: 6/5/08.
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 ACKNOWLEDGEMENT
I accept the stock option dated _______ __, ____, and understand its terms and
conditions. I acknowledge that this stock option supersedes any other verbal or
written agreement regarding stock options.
Dated:
NOTICE OF EXERCISE OF STOCK OPTION
TO: TECHWAVE INC. (the "Company")
I hereby exercise my stock option subject to all the terms and provisions
thereof and notify the Company of my desire to purchase shares of Common Stock
of the Company at the exercise price of $_____ per share which were offered to
me pursuant to said option.
I hereby represent that the _______ shares of Common Stock to be
delivered to me pursuant to this exercise are being acquired by me for my own
account, for investment and not with a view to resale or distribution.
Dated:
