Exhibit 99.6
NEXTWAVE WIRELESS INC.
2007 NEW EMPLOYEE STOCK INCENTIVE PLAN
OPTION AWARD AGREEMENT
REFERENCE NUMBER: 2007-[ ]
SECTION 1. GRANT OF OPTION.
(a) OPTION. On the terms and conditions set forth in this Agreement and each
Notice of Option Award referencing this Agreement (the "NOTICE"), NextWave
Wireless, Inc. (the "COMPANY") grants to the optionee on the Date of Grant an
option to purchase at the Exercise Price a number of shares of Company common
stock, par value $0.001 per share (the "SHARES"). Each Notice, together with
this Agreement, shall be a separate non-statutory option (i.e., an option that
is not described in Sections 422(b) or 423(b) of the Internal Revenue Code).
(b) OPTION PLAN AND DEFINED TERMS. This option is granted under and subject to
the terms of the NextWave Wireless, Inc. 2007 New Employee Stock Incentive Plan
("PLAN"), which is incorporated herein. In case of any conflict between the
terms of the Plan and this Agreement or the Notice, the terms of the Plan shall
control. Capitalized terms not defined in this Agreement or the Notice shall
have the same meaning ascribed to such term in the Plan.
(c) DURATION. This Agreement shall apply to this option until its expiration.
SECTION 2. RIGHT TO EXERCISE.
This option will become exercisable to purchase Shares to the extent it is
vested. This option shall be vested pursuant to the schedule described in the
Notice.
SECTION 3. NO TRANSFER OR ASSIGNMENT OF OPTION.
(a) GENERALLY. Except as provided in (c) below, this option and the rights and
privileges conferred hereby shall be exercisable only by the optionee during the
optionee's lifetime, or by the person to whom the optionee's rights shall pass
by will or the laws of descent and distribution. Notwithstanding anything in the
Plan to the contrary, this option and the rights and privileges conferred hereby
shall be transferable pursuant to a domestic relations order.
(b) IMPERMISSIBLE TRANSFER. Except as provided in (c) below, neither this option
nor the rights and privileges conferred hereby, may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by an optionee
and any such purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance shall be void and unenforceable against the Company or
any Affiliate.
(c) PERMITTED TRANSFER. This option and the rights and privileges conferred
hereby may be transferred for no consideration to immediate family members or
related family trusts, or similar entities on such terms and conditions as the
Committee may establish.
SECTION 4. EXERCISE PROCEDURES.
(a) WITHHOLDING REQUIREMENTS. The Company may withhold any tax (or other
governmental obligation) as a result of the exercise of this option, as a
condition to the exercise of this option, and the optionee shall make
arrangements satisfactory to the Company to enable it to satisfy all such
withholding requirements. The optionee shall also make arrangements satisfactory
to the Company to enable it to satisfy any withholding requirements that may
arise in connection with the vesting or disposition of Shares purchased by
exercising this option.
(b) NO ASSURANCES OF TAX CONSEQUENCES. This option is intended to be treated as
incentive compensation and not as an equity interest in the Company prior to the
date it is exercised. However, each optionee shall consult with his or her own
tax counsel regarding tax treatment of this option, and the Company provides no
assurances regarding such treatment, including the treatment of this award as an
option and not as an equity interest in the Company.
SECTION 5. PAYMENT FOR SHARES.
(a) WIRE TRANSFER OR CHECK. All or part of the Exercise Price may be paid in
U.S. Dollars by wire transfer or check.
(b) OTHER METHODS OF PAYMENT FOR SHARES. At the sole discretion of the Board of
Directors, all or any part of the Exercise Price and any applicable withholding
requirements may be paid by any other method permissible under the terms of the
Plan. The Company shall notify the optionee if and when it shall make such other
payment method available to the optionee.
SECTION 6. TERM AND EXPIRATION.
(a) BASIC TERM. Subject to earlier termination in accordance with subsection (b)
below, this option shall expire on the expiration date set forth in the Notice.
(b) TERMINATION OF SERVICE. If the optionee's Service terminates for any reason,
then this option shall expire on the earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (a) above;
(ii) The date three (3) months after the termination of the optionee's
Service for any reason other than Cause, death or Disability (or such later date
as the Board of Directors may determine);
(iii) The date six (6) months after the termination of the optionee's
Service by reason of Disability (or such later date as the Board of Directors
may determine) or retirement pursuant to any then current formal retirement
policy of the Company;
(iv) The date twelve (12) months after the optionee's death; or
(v) The date of termination of the optionee's Service if such termination
is for Cause or if Cause exists on such date.
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The optionee (or in the case of the optionee's death or disability, the
optionee's representative) may exercise all or part of this option at any time
before its expiration under the preceding sentence, but only to the extent that
this option was vested on or before the date the optionee's Service terminates.
When the optionee's Service terminates, this option shall expire immediately
with respect to the number of Shares for which this option is not yet vested.
The Company shall also have the right not to deliver Shares upon the exercise of
this option if, after the exercise of this option, the optionee's Service is
terminated for Cause or it is determined that Cause existed on such date.
(c) LEAVES OF ABSENCE. For any purpose under this Agreement, Service shall be
deemed to continue while the optionee is on a bona fide leave of absence, if
such leave was approved by the Company in writing or if continued crediting of
Service for such purpose is expressly required by the terms of such leave or by
applicable law (as determined by the Company).
SECTION 7. LEGALITY OF INITIAL ISSUANCE.
No Shares shall be issued upon the exercise of this option unless and until
the Company has determined that:
(a) The Company and the optionee have taken any actions required to
register the Shares under the Securities Act or to perfect an
exemption from the registration requirements thereof;
(b) Any applicable listing requirement of any stock exchange or other
securities market on which Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has been
satisfied.
SECTION 8. RESTRICTIONS ON TRANSFER.
(a) SECURITIES LAW RESTRICTIONS. The Company at its discretion may impose
restrictions upon the sale, pledge or other transfer of such Shares (including
the placement of appropriate legends on stock certificates or the imposition of
stop-transfer instructions) if, in the judgment of the Company, such
restrictions are necessary or desirable in order to achieve compliance with the
Securities Act or the securities laws of any state or any other law.
(b) UNDERTAKING. The optionee agrees to take whatever additional action and
execute whatever additional documents the Company may deem necessary or
advisable to carry out or effect one or more of the obligations or restrictions
imposed on the optionee.
(c) ADMINISTRATION. Any determination by the Company in connection with any of
the matters set forth in this Section 8 shall be conclusive and binding on the
optionee and all other persons.
SECTION 9. ADJUSTMENT OF SHARES.
If any change is made in the Shares that are the subject of this option,
without the receipt of consideration by the Company through merger,
consolidation, reorganization, recapitalization, reincorporation, Share
distribution, stock split, liquidating distribution, combination of Shares,
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exchange of Shares, change in corporate structure or other transaction not
involving the recipe to of consideration by the Company, the Committee shall
make appropriate adjustments to the number of Shares subject to this option and
the Exercise Price of this option.
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) RIGHTS AS A SHAREHOLDER. Neither the optionee nor the optionee's
representative shall have any rights as an equity owner with respect to any
Shares subject to this option until the optionee or the optionee's
representative becomes entitled to receive such Shares by (i) filing a notice of
exercise, and (ii) paying the Exercise Price as provided in this Agreement.
(b) NO RETENTION RIGHTS. Nothing in this option or in the Plan shall confer upon
the optionee any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company (or any Parent or Subsidiary employing or retaining the optionee) or of
the optionee, which rights are hereby expressly reserved by each, to terminate
his or her Service at any time and for any reason, with or without cause.
(c) NOTIFICATION. Any notice required by this Agreement shall be given in
writing and shall be deemed effective upon personal delivery or upon deposit
with the United States Postal Service, by registered or certified mail, with
postage and fees prepaid. A notice shall be addressed to the Company at its
principal executive office and to the optionee at the address that he or she
most recently provided to the Company.
(d) ENTIRE AGREEMENT. The Notice, this Agreement and the Plan constitute the
entire contract between the parties hereto with regard to the subject matter
hereof. They supersede any other agreements, representations or understandings
(whether oral or written and whether express or implied) which relate to the
subject matter hereof.
(e) WAIVER. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition whether of
like or different nature.
(f) SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the Company and its successors and assigns and
upon the optionee, the optionee's assigns and the legal representatives, heirs
and legatees of the optionee's estate, whether or not any such person shall have
become a party to this Agreement and have agreed in writing to be join herein
and be bound by the terms hereof.
(g) CHOICE OF LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, as such laws are applied to
contracts entered into and performed in such State.
SECTION 11. DEFINITIONS.
(a) "CAUSE" shall mean with respect to the optionee, "Cause" as defined in any
employment agreement between the Company and the optionee or, if there is no
such agreement, the following with respect to the optionee:
(i) any conviction or plea of guilty or nolo contendere to a felony,
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(ii) any fraud, embezzlement, theft, willful misconduct, breach of
fiduciary duty or gross negligence with respect to the Company or any of
its affiliates,
(iii) any willful breach of any written policy, which breach has a
material and adverse impact on the Company's reputation or business or any
confidential or proprietary information, non-compete or non-solicitation
covenant for the benefit of the Company or any of its affiliates, or
(iv) any willful failure to substantially perform the optionee's
material responsibilities (it being understood that any failure to perform
for reasons beyond the control of the optionee, such as disability,
inadequate resources, impossibility, or the like shall not be treated as a
"willful failure").
(b) "CHANGE IN CONTROL" shall have the meaning provided in the Plan.
(c) "DATE OF GRANT" shall mean the date specified in the Notice.
(d) "DISABILITY" shall mean that the optionee is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment as determined by the Board of Directors in its sole
discretion.
(e) "EXERCISE PRICE" shall mean the amount for which one Share may be purchased
upon exercise of this option, as specified in the Notice.
(f) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(g) "SERVICE" shall mean service as an employee of the Company or any
affiliated Company or as a non-employee member of the member of the Company's
board of directors.
(h) "SHARE" shall mean one share of the Company's common stock,.
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