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EXHIBIT 4.1
POWERWAVE TECHNOLOGIES, INC.
2000 STOCK OPTION PLAN
This 2000 STOCK OPTION PLAN (the "Plan") is hereby established by POWERWAVE
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and adopted by its
Board of Directors as of March 17, 2000 (the "Effective Date").
ARTICLE 1
PURPOSES OF THE PLAN
1.1 Purposes. The purposes of the Plan are (a) to enhance the Company's
ability to attract and retain the services of qualified individuals in the
employ or service of the Company or any Affiliated Company, upon whose judgment,
initiative and efforts the successful conduct and development of the Company's
business largely depends, and (b) to provide additional incentives to such
persons or entities to devote their utmost effort and skill to the advancement
and betterment of the Company, by providing them an opportunity to participate
in the ownership of the Company and thereby have an interest in the success and
increased value of the Company.
ARTICLE 2
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings
indicated:
2.1 Administrator. "Administrator" means the Board or, if the Board
delegates responsibility for any matter to the Committee, the term Administrator
shall mean the Committee.
2.2 Affiliated Company. "Affiliated Company" means any "parent
corporation" or "subsidiary corporation" of the Company, whether now existing or
hereafter created or acquired, as those terms are defined in Sections 424(e) and
424(f) of the Code, respectively.
2.3 Board. "Board" means the Board of Directors of the Company.
2.4 Cause. "Cause" means, with respect to a Participant's Continuous
Service, the termination by the Company of such Continuous Service for any of
the following reasons:
(a) The continued, unreasonable refusal or omission by the
Participant to perform any material duties required of him by the Company if
such duties are consistent with duties customary for the position held with the
Company;
(b) Any material act or omission by the Participant involving
malfeasance or gross negligence in the performance of Participant's duties to,
or material deviation from any of the policies or directives of, the Company;
(c) Conduct on the part of Participant which constitutes the breach
of any statutory or common law duty of loyalty to the Company; including the
unauthorized disclosure of material confidential information or trade secrets of
the Company; or
(d) Any illegal act by Participant which materially and adversely
affects the business of the Company or any felony committed by Participant, as
evidenced by conviction thereof, provided that the Company may suspend
Participant with pay while any allegation of such illegal or felonious act is
investigated.
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2.5 Change in Control. "Change in Control" shall mean (i) the
acquisition, directly or indirectly, by any person or group (within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of the
beneficial ownership of more than fifty percent (50%) of the outstanding
securities of the Company; (ii) a merger or consolidation in which the Company
is not the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated; (iii) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company; (iv) a complete liquidation or dissolution of the Company; or (v)
any reverse merger in which the Company is the surviving entity but in which
securities possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately prior to
such merger.
2.6 Code. "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
2.7 Committee. "Committee" means a committee of two or more members of
the Board or officers of the Company appointed by the Board to administer the
Plan, as set forth in Section 6.1 hereof.
2.8 Common Stock. "Common Stock" means the Common Stock of the Company,
subject to adjustment pursuant to Section 4.2 hereof.
2.9 Continuing Director. "Continuing Director means any member of the
Board of Directors of the Company who was a member of the Board prior to the
effective date of the Plan, and any person who is subsequently elected to the
Board if such person is recommended or approved by a majority of the Continuing
Directors.
2.10 Covered Employee. "Covered Employee" means the chief executive
officer (or such person that is acting as the chief executive officer) and any
other employee whose total compensation for the taxable year is required to be
reported to the Company's shareholders pursuant to the Exchange Act by reason of
such person being among the four (4) highest compensated officers for the
taxable year.
2.11 Disability. "Disability" means permanent and total disability as
defined in Section 22(e)(3) of the Code. The Administrator's determination of a
Disability or the absence thereof shall be conclusive and binding on all
interested parties.
2.12 Effective Date. "Effective Date" means the date on which the Plan is
adopted by the Board, as set forth on the first page hereof.
2.13 Exercise Price. "Exercise Price" means the purchase price per share
of Common Stock payable upon exercise of an Option.
2.14 Exchange Act. "Exchange Act" means the Securities Exchange Act of
1934, as amended.
2.15 Fair Market Value. "Fair Market Value" on any given date means the
value of one share of Common Stock, determined as follows:
(a) If the Common Stock is then listed or admitted to trading on a
NASDAQ market system or a stock exchange which reports closing sale prices, the
Fair Market Value shall be the closing sale price on the date of valuation on
such NASDAQ market system or principal stock exchange on which the Common Stock
is then listed or admitted to trading, or, if no closing sale price is quoted on
such day, then the Fair Market Value shall be the closing sale price of the
Common Stock on such NASDAQ market system or such exchange on the next preceding
day for which a closing sale price is reported.
(b) If the Common Stock is not then listed or admitted to trading on
a NASDAQ market system or a stock exchange which reports closing sale prices,
the Fair Market Value shall be the average of the closing bid and asked prices
of the Common Stock in the over-the-counter market on the date of valuation.
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(c) If neither (a) nor (b) is applicable as of the date of
valuation, then the Fair Market Value shall be determined by the Administrator
in good faith using any reasonable method of evaluation, which determination
shall be conclusive and binding on all interested parties.
2.16 NASD Dealer. "NASD Dealer" means a broker-dealer that is a member of
the National Association of Securities Dealers, Inc.
2.17 Non-Employee Director. "Non-Employee Director" means a Director who
either (i) is not a current employee or officer of the Company or its parent or
a subsidiary, does not receive compensation (directly or indirectly) from the
Company or its parent or a subsidiary for services rendered as a consultant or
in any capacity other than as a Director (except for an amount as to which
disclosure would not be required under Item 404(a) of Regulation S-K promulgated
pursuant to the Securities Act ("Regulation S-K")), does not possess an interest
in any other transaction as to which disclosure would be required under Item
404(a) of Regulation S-K and is not engaged in a business relationship as to
which disclosure would be required under Item 404(b) of Regulation S-K; or (ii)
is otherwise considered a "non-employee director" for purposes of Rule 16b-3.
2.18 Option. "Option" means any option to purchase Common Stock granted
pursuant to the Plan.
2.19 Option Agreement. "Option Agreement" means the written agreement
entered into between the Company and the Optionee with respect to an Option
granted under the Plan.
2.20 Optionee. "Optionee" means a Participant who holds an Option.
2.21 Outside Director. "Outside Director" means a Director who either (i)
is not a current employee of the Company or an "affiliated corporation" (as
described under the of Treasury Regulations relating to Section 162(m) of the
Code), is not a former employee of the Company or an "affiliated corporation"
receiving compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Company or an "affiliated
corporation" at any time and is not currently receiving direct or indirect
remuneration from the Company or an "affiliated corporation" for services in any
capacity other than as a Director, or (ii) is otherwise considered an "outside
director" for purposes of Section 162(m) of the Code.
2.22 Participant. "Participant" means an individual or entity who holds an
Option.
2.23 Securities Act. "Securities Act" means the Securities Act of 1933,
as amended.
ARTICLE 3
ELIGIBILITY
3.1 Options. Qualified individuals in the employ or service of the
Company or any Affiliated Company, are eligible to receive Options under the
Plan. Non-Employee Directors are not eligible to receive Options under the
Plan.
3.2 Limitation on Shares. In no event shall any Participant be granted
Options in any one calendar year pursuant to which the aggregate number of
shares of Common Stock that may be acquired thereunder exceeds 300,000 shares.
ARTICLE 4
PLAN SHARES
4.1 Shares Subject to the Plan. A total of 880,000 shares of Common Stock
may be issued under the Plan, subject to adjustment as to the number and kind of
shares pursuant to Section 4.2 hereof. For purposes of this limitation, in the
event that (a) all or any portion of any Option granted or offered under the
Plan can no longer under any circumstances be exercised, or (b) any shares of
Common Stock are reacquired by the Company pursuant
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to an Option Agreement, the shares of Common Stock allocable to the unexercised
portion of such Option, or the shares so reacquired, shall again be available
for grant or issuance under the Plan.
4.2 Changes in Capital Structure. In the event that the outstanding
shares of Common Stock 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 adjustments shall be made by the Administrator to
the aggregate number and kind of shares subject to this Plan, and the number and
kind of shares and the price per share subject to outstanding Option Agreements
in order to preserve, as nearly as practical, but not to increase, the benefits
to Participants.
ARTICLE 5
OPTIONS
5.1 Option Agreement. Each Option granted pursuant to this Plan shall be
evidenced by an Option Agreement which shall specify the number of shares
subject thereto, the vesting provisions relating to such Option, and the
Exercise Price per share. As soon as is practical following the grant of an
Option, an Option Agreement shall be duly executed and delivered by or on behalf
of the Company to the Optionee to whom such Option was granted. Each Option
Agreement shall be in such form and contain such additional terms and
conditions, not inconsistent with the provisions of this Plan, as the
Administrator shall, from time to time, deem desirable, including, without
limitation, the imposition of any rights of first refusal and resale obligations
upon any shares of Common Stock acquired pursuant to an Option Agreement. Each
Option Agreement may be different from each other Option Agreement.
5.2 Exercise Price. The Exercise Price per share of Common Stock covered
by each Option shall be determined by the Administrator, but shall not be less
than 100% of Fair Market Value on the date the Option is granted.
5.3 Payment of Exercise Price. Payment of the Exercise Price shall be
made upon exercise of an Option and may be made, in the discretion of the
Administrator, subject to any legal restrictions, by: (a) cash; (b) check; (c)
the surrender of shares of Common Stock owned by the Optionee that have been
held by the Optionee for at least six (6) months, which surrendered shares shall
be valued at Fair Market Value as of the date of such exercise; (d) provided
that a public market for the Common Stock exists, a "same day sale" commitment
from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to
exercise the Option and to sell a portion of the shares so purchased to pay for
the Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt
of such shares to forward the Exercise Price directly to the Company; (e)
provided that a public market for the Common Stock exists, a "margin" commitment
from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to
exercise the Option and to pledge the shares so purchased to the NASD Dealer in
a margin account as security for a loan from the NASD Dealer in the amount of
the Exercise Price, and whereby the NASD Dealer irrevocably commits upon receipt
of such shares to forward the Exercise Price directly to the Company; or (f) any
combination of the foregoing methods of payment or any other consideration or
method of payment as shall be permitted by applicable corporate law.
5.4 Term and Termination of Options. The term and provisions for
termination of each Option shall be as fixed by the Administrator, but no Option
may be exercisable more than five (5) years after the date it is granted.
5.5 Vesting and Exercise of Options. Each Option shall vest and become
exercisable in one or more installments at such time or times and subject to
such conditions, including without limitation the achievement of specified
performance goals or objectives, as shall be determined by the Administrator.
5.6 Nontransferability of Options. No Option shall be assignable or
transferable except by will or the laws of descent and distribution, and during
the life of the Optionee shall be exercisable only by such Optionee.
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5.7 Rights as Shareholder. An Optionee or permitted transferee of an
Option shall have no rights or privileges as a shareholder with respect to any
shares covered by an Option until such Option has been duly exercised and
certificates representing shares purchased upon such exercise have been issued
to such person.
5.8 Restrictions on Underlying Shares of Common Stock. Shares of Common
Stock issued pursuant to the exercise of an option may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided in the Option Agreement.
ARTICLE 6
ADMINISTRATION OF THE PLAN
6.1 Administrator. Authority to control and manage the operation and
administration of the Plan shall be vested in the Board, which may delegate such
responsibilities in whole or in part to a committee consisting of two (2) or
more members of the Board or two (2) or more officers of the Company
("Committee"). The Board or Committee shall have the discretion to delegate
authority to a committee consisting of (i) two (2) or more members of the Board
that are Outside Directors for the grant of Options to qualified individuals
that are Covered Employees, persons expected to be Covered Employees at the time
of the exercise of such Options, or persons in which the Company desires to
comply with 162(m) of the Code, or (ii) two (2) or more members of the Board
that are Non-Employee Directors for the grant of Options to qualified
individuals that are subject to Section 16 of the Exchange Act. As used herein,
the term "Administrator" means the Board or, with respect to any matter as to
which responsibility has been delegated to the Committee, the term Administrator
shall mean the Committee.
6.2 Powers of the Administrator. In addition to any other powers or
authority conferred upon the Administrator elsewhere in the Plan or by law, the
Administrator shall have full power and authority: (a) to determine the persons
to whom, and the time or times at which Options shall be granted, the number of
shares to be represented by each Option and the consideration to be received by
the Company upon the exercise thereof; (b) to interpret the Plan; (c) to create,
amend or rescind rules and regulations relating to the Plan; (d) to determine
the terms, conditions and restrictions contained in, and the form of, Option
Agreements; (e) to determine the identity or capacity of any persons who may be
entitled to exercise a Participant's rights under any Option under the Plan; (f)
to correct any defect or supply any omission or reconcile any inconsistency in
the Plan or in any Option Agreement; (g) to accelerate the vesting of any
Option; (h) to extend the exercise date of any Option; (i) to provide for rights
of first refusal and/or repurchase rights; (j) to amend outstanding Option
Agreements to provide for, among other things, any change or modification which
the Administrator could have provided for upon the grant of an Option or in
furtherance of the powers provided for herein; and (k) to make all other
determinations necessary or advisable for the administration of the Plan, but
only to the extent not contrary to the express provisions of the Plan.
Notwithstanding the foregoing, the Administrator shall not have the authority to
amend an Option Agreement to effect a "re-pricing" of the exercise price of such
Option either by (i) lowering the exercise price of a previously granted Option
or (ii) by canceling a previously granted Option and granting a new Option,
except that an amendment to an Option Agreement pursuant to Section 4.2 or
Section 7.1 herein shall not be considered a re-pricing of such Option. Any
action, decision, interpretation or determination made in good faith by the
Administrator in the exercise of its authority conferred upon it under the Plan
shall be final and binding on the Company and all Participants.
6.3 Limitation on Liability. No employee of the Company or member of the
Board or Committee shall be subject to any liability with respect to duties
under the Plan unless the person acts fraudulently or in bad faith. To the
extent permitted by law, the Company shall indemnify each member of the Board or
Committee, and any employee of the Company with duties under the Plan, who was
or is a party, or is threatened to be made a party, to any threatened, pending
or completed proceeding, whether civil, criminal, administrative or
investigative, by reason of such person's conduct in the performance of duties
under the Plan.
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ARTICLE 7
CHANGE IN CONTROL
7.1 Change in Control. In the event of a Change in Control of the
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 all Participants 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, all Options
shall be accelerated and concurrent with such date the holders of such Options
shall have the right to exercise such Options in respect to any or all shares
subject thereto 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), an individual Participant's status as an employee is
terminated by the Company or its successor other than for Cause, then such
Participant's Options, to the extent not previously accelerated, shall be
accelerated and concurrent with the date of such termination such Participant
shall have the right to exercise such Options in respect to any or all shares
subject thereto and not previously exercised. The Administrator in its
discretion may, at any time an Option is granted, 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 each Option for an amount of
cash or other property that could have been received upon the exercise of the
Option, (B) adjust the terms of the Options in a manner determined by the
Administrator to reflect the Change in Control, (C) cause the Options 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 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.
ARTICLE 8
AMENDMENT AND TERMINATION OF THE PLAN
8.1 Amendments. The Board may from time to time alter, amend, suspend or
terminate the Plan in such respects as the Board may deem advisable. No such
alteration, amendment, suspension or termination shall be made which shall
substantially affect or impair the rights of any Participant under an
outstanding Option Agreement without such Participant's consent. The Board may
alter or amend the Plan to comply with requirements under the Code relating to
Options or other types of options which give Optionees more favorable tax
treatment than that applicable to Options granted under this Plan as of the date
of its adoption. Upon any such alteration or amendment, any outstanding Option
granted hereunder may, if the Administrator so determines and if permitted by
applicable law, be subject to the more favorable tax treatment afforded to an
Optionee pursuant to such terms and conditions.
8.2 Plan Termination. Unless the Plan shall theretofore have been
terminated, the Plan shall terminate on the tenth (10th) anniversary of the
Effective Date and no Options may be granted under the Plan thereafter, but
Option Agreements, then outstanding shall continue in effect in accordance with
their respective terms.
ARTICLE 9
TAX WITHHOLDING
9.1 Withholding. The Company shall have the power to withhold, or require
a Participant to remit to the Company, an amount sufficient to satisfy any
applicable Federal, state, and local tax withholding requirements with respect
to any Options exercised under the Plan. To the extent permissible under
applicable tax, securities and other laws, the Administrator may, in its sole
discretion and upon such terms and conditions as it may deem
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appropriate, permit a Participant to satisfy his or her obligation to pay any
such tax, in whole or in part, up to an amount determined on the basis of the
highest marginal tax rate applicable to such Participant, by (a) directing the
Company to apply shares of Common Stock to which the Participant is entitled as
a result of the exercise of an Option, or (b) delivering to the Company shares
of Common Stock owned by the Participant. The shares of Common Stock so applied
or delivered in satisfaction of the Participant's tax withholding obligation
shall be valued at their Fair Market Value as of the date of measurement of the
amount of income subject to withholding.
ARTICLE 10
MISCELLANEOUS
10.1 Benefits Not Alienable. Other than as provided above, benefits under
the Plan may not be assigned or alienated, whether voluntarily or involuntarily.
Any unauthorized attempt at assignment, transfer, pledge or other disposition
shall be without effect.
10.2 No Enlargement of Employee Rights. This Plan is strictly a voluntary
undertaking on the part of the Company and shall not be deemed to constitute a
contract between the Company and any Participant to be consideration for, or an
inducement to, or a condition of, the employment of any Participant. Nothing
contained in the Plan shall be deemed to give the right to any Participant to be
retained as an employee of the Company or any Affiliated Company or to limit the
right of the Company or any Affiliated Company to discharge any Participant at
any time.
10.3 Application of Funds. The proceeds received by the Company from the
sale of Common Stock pursuant to Option Agreements, except as otherwise provided
herein, will be used for general corporate purposes.
