EXHIBIT 99.8
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-TRANSFERABLE. 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 Ls permitted to retain
his existing stock certificate and a new stock certificate is issued for the
net shares.
In addition, if the fair market value of one share of Common Stock is
greater than the purchase price per share (as set forth on Schedule A and
subject to adjustment I any, prior to the date of calculation as set forth
below), in lieu of exercising this Option for cash or for delivery of shares
of Common Stock, the Optionee may elect to receive shares equal to the value
(as determined below) of this Option (or the portion thereof being cancelled)
and the Company shall then issue the Optionee a number of shares of Common
Stock computed using the following formula:
X = Y (A-B)
-----
A
Where X = the number of shares of Common Stock to be issued to the
Optionee
Y = the number of shares of Common Stock purchasable under the
Option or, if only a portion of the Option is being
exercised, the portion of this Option being cancelled (at
the date of such calculation)
A = the fair market value of one share of the Common Stock (at
the date of such calculation)
B = Exercise (Purchase) Price (as adjusted to the date of such
calculation)
For the purposes of the above calculation, fair market value of one
share of Common Stock shall be determined by the Board of Directors in good
faith; provided, however, that where there exists a public market for the
Common Stock at the time of such exercise, the fair market value per share
shall equal the average of the closing bid and asked prices of the Common
Stock quoted in the over-the-counter Market Summary or the last reported sale
price of Common Stock or the closing price quoted on the Nasdaq National
Market or any exchange on which the Common Stock is listed, whichever is
applicable, for the five days prior to the date of determination of fair
market value.
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, disability
or cause as hereinafter provided, the option may be exercised by the Optionee
at any time prior to the expiration of the option, 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 the option, but only if, and to the extent the Optionee was entitled to
exercise the option at six months following 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.
5.4 TERMINATION BY COMPANY FOR ANY REASON OR BY OPTIONEE FOR GOOD
REASON. If the Optionee's employment with the Company is terminated by the
Company for any reason or by Optionee for "good reason," (as defined in the
Employment Agreement between the Company and the Optionee), this Option shall
be exercisable on or prior to the expiration of the Option, but only if and
to the extent the Optionee is entitled to exercise the Option twelve months
from the date of such termination without cause.
5.5 TERMINATION BY OPTIONEE WITHOUT GOOD REASON. If the Optionee
terminates his employment with the Company without "good reason" (as defined
in the Employment Agreement), this Option shall be exercisable on or prior to
the expiration of the Option but only to the extent the Optionee was entitled
to exercise this Option at the date of such termination.
6. SECURITIES REGULATION.
(a) 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.
(b) 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.
7. OPTION ADJUSTMENTS.
7.1 ADJUSTMENTS UPON CHANCES 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.
7.2 EFFECT OF CERTAIN TRANSACTIONS. Upon a merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation
of the Company, 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, but, in the event that the
common shareholders of the Company are to receive cash, stock or other
property in exchange for their shares of Common Stock with a value equal to
or in excess of $6.25 per share, then in such event the Optionee shall have
the right immediately prior to any such merger, consolidation, acquisition of
property or stock, separation, reorganization or liquidation to exercise this
option in whole or in part whether or not the vesting requirements set forth
in the option agreement have been satisfied. Immediately preceding such an
event, the Company shall make a loan (the "Loan" to the Optionee in an amount
equal to the aggregate purchase price of the then unexercised portion of this
Option. The Loan shag be repayable by the Optionee with equal monthly
payments over a period of 18 months with interest at the then current prime
interest rate.
7.3 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.
8. 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 310,000 shares of Common Stock (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.
9. 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.
10. AMENDMENT. Any amendment of this Option may only occur in writing
with the consent of the Company and the Optionee.
11. 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.
12. 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
TECHWAVE INC.
SCHEDULE A
1. Name and Address of Optionee:
2. Date of grant of this Option: __________ __, 19__
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 and subject to the following
conditions:
Date on and after Portion of total
which Option Option which
is exercisable is exercisable
These shares will only become exercisable upon satisfaction of one of the
following two conditions:
1. If the Company is acquired or merges with another company and the common
shareholders receive consideration (cash, stock or other property) with a
value equal to or in excess of $_____ per share; or
2. If the Company completes an initial public offering of its stock ("IPO")
and there are 30 consecutive trading days at any time after the IPO is
completed that the closing price of TechWave Common Stock is equal to or
greater than $______ per share.
ACCEPTANCE AND ACKNOWLEDGMENT
I accept the stock option dated _________ __, 19__, granted by TechWave
Inc., and understand its terms and conditions.
Dated:
