Exhibit 4.2.
Option Number:
Optionee ID Number:
POWERWAVE TECHNOLOGIES, INC.
2002 STOCK OPTION PLAN
OPTION AGREEMENT
This Option Agreement ("Agreement") is entered into as of ,
, by and between POWERWAVE TECHNOLOGIES, INC., a Delaware corporation
("Company"), and _______________ ("Optionee") pursuant to the Company's 2002
Stock Option Plan ("Plan"). Any capitalized term not defined herein shall have
the meaning ascribed to it in the Plan.
1. Grant of Option. The Company hereby grants to Optionee an option
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("Option") to purchase all or any portion of a total of ( )
shares ("Shares") of the Common Stock of the Company at a purchase price of
($ ) per share ("Exercise Price"), subject to the terms and conditions
set forth herein and the provisions of the Plan. This Option is not intended to
qualify as an "incentive stock option" as defined in Section 422 of the Internal
Revenue Code of 1986, as amended ("Code").
2. Vesting of Option. The right to exercise this Option shall vest in
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installments, and this Option shall be exercisable from time to time in whole or
in part as to any vested installment, as follows: [complete vesting schedule or
use as follows: The Optionee right to exercise this Option shall vest in ____
shares of Common Stock on __________, ___ (the "First Vesting"). Commencing the
following month, the Option shall become exercisable, with respect to the
remaining shares, at a rate of one-thirty-sixth (1/36) per month on the same day
of each month in which the First Vesting occurred and continuing on the same day
of each successive month until exercisable in full, if, and only if, the
Optionee remains continuously employed by the Company on each such monthly
vesting date and shall be fully vested as of _____, ____.
No additional Shares shall vest after the date of termination of Optionee's
"Continuous Service" (as defined in Section 3 below), but this Option shall
continue to be exercisable in accordance with Section 3 hereof with respect to
that number of Shares that have vested as of the date of termination of
Optionee's Continuous Service.
3. Term of Option. Optionee's right to exercise this Option shall
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terminate upon the first to occur of the following:
(a) the expiration of ten (10) years from the date of this
Agreement;
(b) the expiration of ninety (90) days from the date of termination
of Optionee's Continuous Service if such termination occurs for any reason other
than permanent disability or death; provided, however, that if Optionee dies
during such ninety-day period the provisions of Section 3(d) below shall apply;
(c) the expiration of one hundred eighty (180) days from the date of
termination of Optionee's Continuous Service if such termination is due to
permanent disability of the Optionee (as defined in Section 22(e)(3) of Code;
(d) the expiration of one hundred eighty (180) days from the date of
termination of Optionee's Continuous Service if such termination is due to
Optionee's death or if death occurs during the ninety (90) day period following
termination of Optionee's Continuous Service pursuant to Section 3(b) above, as
the case may be;
(e) or upon the consummation of a Change in Control, unless otherwise
provided pursuant to Section 9 below.
As used herein, the term "Continuous Service" means (i) employment by either the
Company or any parent or subsidiary corporation of the Company, or by a
corporation or a parent or subsidiary of a corporation issuing or assuming a
stock option in a transaction to which Section 424(a) of the Code applies, 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 Optionee is engaged as a consultant or service
provider to the Company or other corporation referred to in clause (i) above.
4. Exercise of Option. On or after the vesting of any portion of this
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Option in accordance with Sections 2 or 9 hereof, and until termination of the
right to exercise this Option in accordance with Section 3 above, the portion of
this Option which has vested may be exercised in whole or in part by the
Optionee (or, after his or her death, by the person designated in Section 5
below) upon delivery of the following to the Company at its principal executive
offices:
(a) a written notice of exercise which identifies this Agreement and
states the number of Shares then being purchased (but no fractional Shares may
be purchased) unless the Company has established other procedures;
(b) a check or cash in the amount of the Exercise Price (or payment of
the Exercise Price in such other form of lawful consideration as the
Administrator may approve from time to time under the provisions of Section 5.3
of the Plan);
(c) a check or cash in the amount reasonably requested by the Company
to satisfy the Company's withholding obligations under federal, state or other
applicable tax laws with respect to the taxable income, if any, recognized by
the Optionee in connection with the exercise of this Option (unless the Company
and Optionee shall have made other arrangements for deductions or withholding
from Optionee's wages, bonus or other compensation payable to Optionee, or by
the withholding of Shares issuable upon exercise of this Option or the delivery
of Shares owned by the Optionee in accordance with Section 10.1 of the Plan,
provided such arrangements satisfy the requirements of applicable tax laws); and
(d) a letter, if requested by the Company, in such form and substance
as the Company may require, setting forth the investment intent of the Optionee,
or person designated in Section 5 below, as the case may be.
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5. Death of Optionee; No Assignment. The rights of the Optionee under
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this Agreement may not be assigned or transferred except by will or by the laws
of descent and distribution, and may be exercised during the lifetime of the
Optionee only by such Optionee. Any attempt to sell, pledge, assign,
hypothecate, transfer or dispose of this Option in contravention of this
Agreement or the Plan shall be void and shall have no effect. If the Optionee's
Continuous Service terminates as a result of his or her death, and provided
Optionee's rights hereunder shall have vested pursuant to Section 2 hereof,
Optionee's legal representative, his or her legatee, or the person who acquired
the right to exercise this Option by reason of the death of the Optionee
(individually, a "Successor") shall succeed to the Optionee's rights and
obligations under this Agreement. After the death of the Optionee, only a
Successor may exercise this Option.
6. Representations and Warranties of Optionee. Optionee acknowledges
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receipt of a copy of the Plan and understands that all rights and obligations
connected with this Option are set forth in this Agreement and in the Plan.
7. Limitation on Company's Liability for Nonissuance. The Company
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agrees 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 the Optionee pursuant to this Option. 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.
8. 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 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 appropriate adjustment shall be made by
the Administrator to the number of Shares subject to the unexercised portion of
this Option and to the Exercise Price per share, in order to preserve, as nearly
as practical, but not to increase, the benefits of the Optionee under this
Option, in accordance with the provisions of Section 4.2 of the Plan.
9. Change in Control. In the event of a Change in Control of the
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Company, if the Change in Control is not approved by a majority of the
Continuing Directors, the Administrator shall cause written notice of the
proposed transaction to be given to Optionee not less than fifteen (15) days
prior to the anticipated effective date of the proposed transaction and,
concurrent with the effective date of the proposed transaction, this Option
shall be accelerated and concurrent with such date Optionee shall have the right
to exercise this Option in respect to any or all Shares which have not
previously been exercised. If, within 180 days of a Change in Control
(regardless of its approval or non-approval by the Continuing Directors),
Optionee's status as an employee is terminated by the Company or its successor
other than for Cause, then this Option, to the extent not previously
accelerated, shall be accelerated and concurrent with the date of such
termination Optionee shall have the right to exercise this Option in respect to
any Shares not previously exercised. Additionally, upon a Change in Control the
Administrator in its discretion may, at any time after the effective date of
this Option, or at any time thereafter (regardless of its acceleration or
non-acceleration), take one or more of the following actions: (A) provide for
the purchase of this Option for an amount of cash or other property that could
have been received upon the exercise of this Option, (B) adjust the terms
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of this Option in a manner determined by the Administrator to reflect the Change
in Control, (C) cause this Option to be continued or assumed, or new rights
substituted therefor, by the surviving or another entity, through the
continuance of the Plan and the continuation or assumption of all outstanding
Options, or the substitution for such Options of new options of comparable value
covering shares of a successor corporation, with appropriate adjustments as to
the number and kind of shares and Exercise Prices, in which event the Plan and
such Options, or the new options substituted therefor, shall continue in the
manner and under the terms so provided or (D) make such other provision as the
Administrator may consider equitable. In the event of a Change of Control in
which the Options are not continued, assumed or substituted therefor by the
surviving or another entity, regardless of whether such Change in Control is
approved by a majority of the Continuing Directors, the Options shall be
accelerated and fully exercisable upon the effective date of the Change in
Control and the Administrator shall cause written notice of the proposed
transaction to be given to all Participants not less than fifteen (15) days
prior to the anticipated effective date of the proposed transaction.
10. No Employment Contract Created. Neither the granting of this Option
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nor the exercise hereof shall be construed as granting to the Optionee any right
with respect to continuance of employment by, or other service provider
relationship with, the Company or any of its subsidiaries. The right of the
Company or any of its subsidiaries to terminate at will the Optionee's
employment at any time (whether by dismissal, discharge or otherwise), with or
without cause, is specifically reserved.
11. Rights as Shareholder. The Optionee (or transferee of this option
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by will or by the laws of descent and distribution) shall have no rights as a
shareholder with respect to any Shares covered by this Option until the date of
the issuance of a stock certificate or certificates to him or her for such
Shares, notwithstanding the exercise of this Option.
12. "Market Stand-Off" Agreement. Optionee agrees that, if requested by
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the Company or the managing underwriter of any proposed public offering of the
Company's securities, Optionee will not sell or otherwise transfer or dispose of
any Shares held by Optionee without the prior written consent of the Company or
such underwriter, as the case may be, during such period of time, not to exceed
180 days following the effective date of the registration statement filed by the
Company with respect to such offering, as the Company or the underwriter may
specify.
13. Interpretation. This Option is granted pursuant to the terms of the
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Plan, and shall in all respects be interpreted in accordance therewith. The
Administrator shall interpret and construe this Option and the Plan, and any
action, decision, interpretation or determination made in good faith by the
Administrator shall be final and binding on the Company and the Optionee. As
used in this Agreement, the term "Administrator" shall refer to the committee of
the Board of Directors of the Company appointed to administer the Plan, and if
no such committee has been appointed, the term Administrator shall mean the
Board of Directors.
14. Notices. Any notice, demand or request required or permitted to be
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given under this Agreement shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United
States mail, as certified or registered mail, with postage prepaid, and
addressed, if to the Company, at its principal place of business, Attention: the
Chief Financial Officer, and if to the Optionee, at his or her most recent
address as shown in the employment or stock records of the Company.
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15. Governing Law. The validity, construction, interpretation, and
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effect of this Option shall be governed by and determined in accordance with the
laws of the State of California.
16. 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.
17. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall be deemed one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first
POWERWAVE TECHNOLOGIES, INC. "OPTIONEE"
By:
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(Signature)
Its:
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(Type or Print Name)
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