NextWave Wireless Inc.
EXHIBIT
99.3
2005
Stock Incentive Plan
Reference
Number: 2005-1
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 isn’t 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.
2005 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 and to the Shares
acquired hereunder until all Shares subject to this option have
vested.
SECTION
2. RIGHT
TO EXERCISE.
Exercisability.
This
option will become exercisable to purchase Shares, also referred to as
vesting,
in the manner and pursuant to the schedule described in the Notice. The
option
will become exercisable with respect to all Shares covered hereby, i.e.,
fully
vested, upon a Change of Control consummated while optionee is employed,
effective immediately prior to the Change of Control.
SECTION
3. NO
TRANSFER OR ASSIGNMENT OF OPTION.
(a) 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) 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) 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.
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
had become exercisable for vested Shares 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.
REGISTRATION RIGHTS.
The
Company may, but shall not be obligated to, register or qualify the sale
of
Shares under the Securities Act or any other applicable law. The Company
shall
not be obligated to take any affirmative action in order to cause the sale
of
Shares under this Agreement to comply with any law.
SECTION
9. RESTRICTIONS
ON TRANSFER.
(a) Securities
Law Restrictions.
Regardless of whether the offering and sale of Shares under the Plan have
been
registered under the Securities Act or have been registered or qualified
under
the securities laws of any state, 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) Investment
Intent. The
optionee represents and agrees that as of the Date of ▇▇▇▇▇, the Shares
to be
acquired upon exercising this option will be acquired for investment, and
not
with a view to the sale or distribution thereof. If the sale of Shares
under the
Plan is not registered under the Securities Act but an exemption is available
which requires an investment representation or other representation, the
optionee shall represent and agree at the time of exercise that the Shares
being
acquired upon exercising this option are being acquired for investment,
and not
with a view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and
its
counsel.
(d) Administration.
Any
determination by the Company in connection with any of the matters set
forth in
this Section 9 shall be conclusive and binding on the optionee and all
other
persons.
SECTION
10.
ADJUSTMENT OF SHARES.
In
the
event of a subdivision of the outstanding Shares, a declaration of a dividend
payable in Shares, a declaration of an extraordinary dividend payable in
a form
other than Shares in an amount that has a material effect on the Fair Market
Value of the Shares, a combination or consolidation of the outstanding
Shares
into a lesser number of Shares, a recapitalization, a spin-off, a
reclassification, or a change in corporate structure or a similar occurrence
that results in a change in the Shares subject to the Plan, the terms of
this
option (including, without limitation, the number and kind of Shares subject
to
this option and the Exercise Price) shall be adjusted as
set
forth
in Section 8(a) of the Plan. In the event that the Company is a party to a
merger or consolidation, this option shall be subject to the agreement
of merger
or consolidation, as provided in Section 8(b) of the Plan.
SECTION
11.
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.
SECION
12. DEFINITIONS.
“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,
(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”).
“Change
in Control”
shall
have the meaning provided in the Plan.
“Date
of Grant”
shall
mean the date specified in the Notice.
“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.
“Exercise
Price”
shall
mean the amount for which one Share may be purchased upon exercise of this
option, as specified in the Notice.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Service”
shall
mean service as a common-law employee, member of the board of directors
or as a
consultant of the Company, a Parent or a Subsidiary.
“Share”
shall mean one share of the Company’s common stock, as adjusted in accordance
with Section 8 of the Plan (if applicable).
“Subsidiary”
shall
mean any entity that the Company owns fifty percent (50%) or more of the
total
outstanding equity interests.
“Transferee”
shall
mean any person to whom the optionee has directly or indirectly transferred
any
Share acquired under this Agreement.