As filed with the Securities and Exchange Commission on November__, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
5G WIRELESS COMMUNICATIONS, INC.(Formerly Tesmark, Inc.)
_____________________________________________________________________________
(Exact name of registrant as specified in its charter)
NEVADA 82-0351882
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
EMPLOYEE STOCK INCENTIVE PLAN
_____________________________________________________________________________
(Full title of the plan)
Corporate Capital Formation, 2921 N. Tenaya Way, Suite 208, Carson City,
Nevada 89128
(Name and Address of Agent for Service)
(702) 214-8440
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Securities Amount Offering Aggregate Amount
Securities to be Shares to be Pre price Offering of Reg.
Registered Share Price Fee1
$0.001par value Common
Stock 5,000,000 $0.01 $ 50,000.00 $ 12.50
Totals 5,000,000 $0.01 $ 50,000.00 $ 12.50
________________________________________________________________________________
Total No. of pages: 33
ursuant to Rule 416(c) promulgated under the Securities Act of 1933, as amended,
the Registration Statement also covers an indeterminate amount of Shares to be
offered or sold as a result of any adjustments from stock splits, stock
dividends or similar events.
2 Based upon the average bid and asked prices of the Companys Common Stock
in over-the-counter trading on October 31, 2001. Value stated for purpose of
calculating the registration fee.
5G WIRELESS COMMUNICATIONS, INC.
2921 Tenaya Way, Suite 216
Las Vegas NV 89128
(702) 647-4877
(5,000,000 SHARES OF COMMON STOCK)
This Prospectus relates to the offer and sale by 5G Wireless
Communications, Inc., ("FGWC"), a Nevada corporation ("the Company") of shares
of its $0.001 par value common stock (the "Common Stock) pursuant to its Stock
Incentive Plan where by certain individuals receive stock options to stimulate
their involvement and continued involvement in the Company. The Company is
registering hereunder and then issuing upon receipt of adequate consideration
therefor to the Employee, Officer, Director or Consultant 5,000,000 shares of
the Common Stock in consideration for services rendered and/or to be rendered
and payments made under the Stock Incentive Plan.
The Common Stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are affiliates of the Company within
the meaning of the Securities Act of 1933 (the Act) may sell all or part of the
shares in any way permitted by law including sales in the over-the-counter
market at prices prevailing at the time of such sale. Shares registered
hereunder are being sold to both affiliates and non-affiliates of the Company.
An affiliate is, summarily, any director, executive officer or controlling
shareholder of the Company. The affiliates of the Company may become subject to
Section 16(b) of the Securities Exchange Act of 1934 as amended (the Exchange
Act) which would limit their discretion in transferring the shares acquired in
the Company. If the individual who is not now an affiliate becomes an affiliate
of the Company in the future; he would then be subject to Section I(b) of the
Exchange Act (See General Information --- Restrictions on Resale).
The Common Stock is Listed on the OTC bulletin board under the symbol FGWC.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is October 31. 2001
This Prospectus is not part of any Registration Statement which was filed
and been effective under the Securities Act of 1933 as amended (the Securities
Act) and does not contain all of the information set forth in the Registration
Statement, certain portions of which have seen offered pursuant to the rules and
regulations promulgated by the U.S. Securities and Exchange Commission (The
Commission) under the Securities Act. The statements in this Prospectus as to
the contents of any contracts or other documents filed as an exhibit to either
the Registration Statement or other filings of the Company with the Commission
are qualified in their entirety by the reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: 5G Wireless
Communications, Inc., 2921 North Tenaya Way, Suite 216, Las Vegas, NV 89128,
telephone (702) 647-4877.
The Company is subject to the reporting requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. These reports as well as the proxy statements, information
statements and other information filed by the Company under the Exchange Act may
be reviewed and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street N.C. Washington D.C. 20549. Copies my be obtained
at the prescribed rates. In addition the Common Stock is quoted on the a
automated quotation system maintained by the National Association of Securities
Dealers, Inc. (NASD). Thus copies of these reports, proxy statements,
information statements and other information may also be examined at the offices
of the NASD at 1735 K Street N.C. Washington DC 20549.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and if given or
made, such other information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an offer or
a solicitation by anyone in any state in which such is not authorized or in
which the person making such is not qualified or to any one to whom it is
unlawful to make an offer or solicitation
Neither the delivery of this Prospectus nor any sale made hereunder shall
under any circumstances create any implication that there has not been a change
in the affairs of the Company since the date hereof.
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN lNFORMATION
GENERAL lNFORMATION
The Company
Purpose
Common Stock
The Consultant
No Restrictions on Transfer
Tax Treatment to the Consultant
Tax Treatment to the Company
Restrictions on Resales
DOCUMENTS INCORPORATED BY REFERENCE & ADDITIONAL INFORMATION
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION
Legal Opinion and Experts
Indemnification of Officers and Directors
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. lNCORPORATION OF DOCUMENTS BY REFERENCE
ITEM 4. DESCRIPTION OF SECURITIES
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
ITEM 8. EXHIBITS
ITEM 9. UNDERTAKINGS
EXHIBIT INDEX
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
GENERAL INFORMATION
The Company
The Company has its principal offices at 2921 North Tenaya Way, Suite 216,
Las Vegas, NV 89128, telephone (702) 647-4877.
Purposes
The Common Stock will be issued by the Company pursuant to its Stock
Incentive Plan which has been approved by the Board of Directors of the Company
(the "Board of Directors"). The Stock Incentive Plan is hoped to provide a
method whereby the Companys current employees and officers and non employee
directors and consultants may be stimulated and allow the Company to secure and
retain highly qualified employees, officers, directors and non employee
directors and consultants, thereby advancing the interests of the Company, and
all of its shareholders. A copy of the Stock Incentive Plan has been filed as an
exhibit to this Registration
Statement.
Common Stock
The Board has authorized the issuance of up to 5,000,000 shares of the
Common stock pursuant to the Companys Stock Incentive Plan upon effectiveness
of this registration Statement.
The Company Stock Incentive Plan
The Company has established a Stock Incentive Plan which awards stock
options in an effort to further compensate its existing employees and officers
and non employee directors and consultants, secure their continued employment,
and attract highly qualified employees and consultants as they are needed.
No Restrictions on Transfer
Upon the exercise of an option, that individual will become the record and
beneficial owners of the shares of Common Stock upon issuance and delivery and
are entitled to all of the rights of ownership, including the right to vote any
shares awarded and to receive ordinary cash dividends on the Common Stock.
Tax Treatment to the Individual who exercises the option
The individuals receiving shares of common stock pursuant to the exercises
of an option or options at an exercise price below the fair market value of the
shares on the date of exercise, the difference between the exercise price and
the fair market value of the stock on the date of exercise may be deemed
ordinary income for federal income tax purposes. The recipient is urged to
consult his tax advisor on this matter. Further, if any recipient is an
"affiliate", Section 16(b) of the Exchange Act is applicable and will affect the
issue of taxation.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in accordance
with the foregoing discussion may be an expense deductible by the Company for
federal income tax purposes of the taxable year of the Company during which the
recipient recognizes income.
Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common
Stock hereunder, the affiliate will be subject to Section 16(b) of the Exchange
Act. Further, in the event that any affiliate acquiring shares hereunder has
sold or sells any shares of Common Stock in the six months preceding or
following the receipt of shares hereunder, any so called "profit", as computed
under Section 16(b) of the Exchange Act, would be required to be disgorged from
the recipient to the Company. Services rendered have been recognized as valid
consideration for the "purchase" of shares in connection with the "profit"
computation under Section 16(b) of the exchange Act. The Company has agreed that
for the purpose of any "profit" computation under 16(b) the price paid for the
common stock issued to affiliates is equal to the value of services rendered.
Shares of common Stock acquired hereunder by persons other than affiliates are
not subject to Section 16(b) of the Exchange Act.
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL INFORMATION
The Company hereby incorporates by reference (i) its annual report of Form
10-KSB for the year ended December 31, 2000, filed pursuant to Section 13 of the
Exchange Act, (ii) any and all Forms 10-Q (10-QSB) filed under the Securities or
Exchange Act subsequent to any filed form 10-K (or 10-KSB), as well as all other
reports filed under Section 13 of the Exchange Act, and (iii) its annual report,
if any, to shareholders delivered pursuant to Rule 14a-3 of the Exchange Act. In
addition, all further documents filed by the Company pursuant to Section 13, 14,
or 15(d) of the Exchange Act prior to the termination of this offering are
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing. All documents which when together, constitute
this Prospectus, will be sent or given to participants by the Registrant as
specified by Rule 428(b)(1) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: 5G Wireless Communications, Inc., 2921 North Tenaya Way, Suite
216, Las Vegas, NV 89128 telephone (702) 647-4877.
Legal Opinions and Experts
Warren J. Soloski has rendered an opinion on the validity of the securities
being registered. Mr. Soloski is not an "affiliate" of the Company and does not
have any interest in the registrant.
The financial statements of 5G Wireless Communications, Inc., incorporated
by reference in the Company's Annual Report (Form 10-KSB) for the period ended
December 31, 2000, have been audited by Randy Simpson, P. C., Certified Public
Accountant, independent auditor, as set forth in their report incorporated
herein by reference and are incorporated herein in reliance upon such report
given upon the authority of the firm as experts in auditing and accounting.
Indemnification of Officers and Directors
Insofar as indemnification of liabilities arising under the Securities Act
may be permitted to directors, officers, or persons controlling the company, the
company has been informed that in the opinion of the commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Registrant hereby states that (i) all documents set forth in (a) through
(c), below, are incorporated by reference in this registration statement, and
(ii) all documents subsequently filed by registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
(a) Registrant's latest Annual Report, whether filed pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the annual report referred to in
(a), above; and
(c) The latest prospectus filed pursuant to Rule 424(b) under the Securities
Act.
Item 4. Description of Securities
No description of the class of securities (i.e., the $0.001 par value
Common Stock ) is required under this item because the common Stock is
registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Mr. Soloski, whose firm is rendering the legal opinion for this
registration, will not benefit from the registration of shares under the terms
of the Stock Incentive Plan.
Item 6. Indemnification of Directors and Officers
The company's by-laws, in accordance with the Nevada Revised Statutes,
provide that to the extent he/she is otherwise fairly and reasonably entitled
thereto, the Company shall indemnify a Director or Officer, a former Director or
Officer, or a person who acts or acted at the Company's request as a Director or
Officer of a body corporate of which the Corporation is or was a shareholder or
creditor (or a person who undertakes or has undertaken any liability on behalf
of the Company or any such body corporate and his heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by him in
respect of any civil, criminal or administrative action or proceeding to which
he is made a party by reason of being or having been a Director or Officer of
the Company or such body corporate, if
(a) he acted honestly and in good faith with a view to the best interests of the
Company; and
(b) in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, he had reasonable grounds for believing that his
conduct was lawful.
The Nevada Revised Statutes provide that directors shall not be personally
liable to the Company or its shareholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
directors' duty of loyalty to the Company or its shareholders, (ii) for acts or
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) for authorizing a distribution that is unlawful,
or (iv) for any transaction from which the director derived an improper personal
benefit. Such provision protects directors against personal liability for
monetary damages for breaches of their duty of care.
The Company may purchase and maintain insurance for the benefit of its Directors
and Officers as such, as the Board of directors may from time to time determine.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
(a) The following exhibits are filed as part of this S-8 registration
statement pursuant to Item 601 of Regulation S-B and are specifically
incorporated herein by this reference:
Exhibit No. Title
4. Not Applicable
5. Opinion of Warren J. Soloski
regarding the legality of the
securities registered.
10. Stock Incentive Plan.
15. Not Required
23.1 Consent of Warren J. Soloski, special
counsel to registrant, to the use of his
opinion with respect to the legality of
the securities being registered hereby
and to the references to him in
the Prospectus filed as a part hereof.
23.2 Consent of Randy Simpson P.C., Certified
Public Accountant.
27. Not Required
28. Not Required
29. Not Required
Item 9. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable. If a claim for indemnification against such
liabilities (other than the payment by registrant of expenses incurred or paid
by a director, officer or controlling person of registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represents a
fundamental change in the information set forth in the registration statement;
and
(iii) include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
provided, however, paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is incorporated by reference from periodic reports filed by the
registrant small business issuer under the Exchange Act.
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment to the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of registrant's annual
report pursuant to Section 13(a) of the Securities Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
Securities at that time shall be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized in the City of Las Vegas, NV on the day of November, 2001.
5G WIRELESS COMMUNICATIONS, INC.
(Registrant)
By: /s/ Michael Tan
Michael Tan, President
Pursuant to the requirements of the 1933 Act, this registration statement or
amendment has been signed by the following persons in the capacities and on the
dates indicated:
Signatures Title Date
/s/ Michael Tan President November __, 2001
Michael Tan Director
/s/ Allen Schwabe Secretary/Treasurer November __, 2001
Allen Schwabe Director
/s/ Richard Lajeunesse Chief Technology Officer November __, 2001
Richard Lajeunesse
FORM S-8 REGISTRATION STATEMENT
EXHIBIT INDEX
The following Exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
Exhibit Number
In Registration
Statement Descriptions Numbered Page
_______________________________________________________________________________
5. Opinion of Counsel 15
10. Stock Incentive
Plan 17
23.1 Consent of Warren J. Soloski 32
23.2 Consent of Randy Simpson, P. C., 33
Certified Public Accountant
Michael Tan, President
5G Wireless Communications, Inc.
2921 N. Tenaya Way, Suite 216
Las Vegas, NV 89128
Re: Legal Opinion for S-8 Registration Statement
Dear Mr. Tan:
At your request, I have examined the form of Registration Statement which
5G Wireless Communications, Inc. (the "Company") is filing with the Securities
and Exchange Commission, on Form S-8 (the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of 5,000,000 shares of your Common Stock (the "Stock") issuable pursuant to
satisfaction of conditions set forth in the Stock Incentive Plan of the Company
(the "Stock Incentive Plan").
In rendering the following opinion, I have examined and relied only upon
the documents, and certificates of officers and directors of the Company as are
specifically described below. In my examination, I have assumed the genuineness
of all signatures, the authenticity, accuracy and completeness of the documents
submitted to me as originals, and the conformity with the original documents of
all documents submitted to me as copies. My examination was limited to the
following documents and no others:
1. Certificate of Incorporation of the Company, as amended to date;
2. Bylaws of the Company, as amended to date;
3. Resolutions adopted by the Board of Directors of the Company authorizing
entry into a Stock Incentive Plan;
4. The Registration Statement;
5. The Stock Incentive Plan which the shares are being registered in the
Registration Statement.
I have not undertaken, nor do I intend to undertake, any independent
investigation beyond such documents and records, or to verify the adequacy or
accuracy of such documents and records. Based upon the foregoing, it is my
opinion that: (i) the Stock to be issued under the agreements, subject to
effectiveness of the Registration Statement and compliance with applicable blue
sky laws, and pursuant to the Stock Incentive Plan in accordance with the Stock
Incentive Plan as contemplated, when issued, will be duly and validly
authorized, fully paid and non-assessable; and (ii) no consent, approval, order
or authorization of any regulatory board, agency, or instrumentality having
jurisdiction over the Company or its properties (other than registration under
the Act or qualification under state securities or Blue Sky laws or clearance
from the NASD) is required for the valid authorization, issuance and delivery of
the Stock, or, if required, it has been obtained and is in full force and
effect.
I express no opinion as to compliance with the securities or "blue sky"
laws of any state in which the stock delivered pursuant to the Stock Incentive
Plan is proposed to be offered and sold or as to the effect, if any, which
non-compliance with such laws might have on the validity of issuance of the
stock.
I consent to the filing of this opinion as an exhibit to any filing made
with the Securities and Exchange Commission or under any state or other
jurisdiction's securities act for the purposes of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the stock issued as described in the Registration Statement in connection with
the offering described therein. Other than as provided in the preceding
sentence, this opinion (i) is addressed solely to you, (ii) may not be relied
upon by any other party, (iii) covers only matters of federal law and nothing in
this opinion shall be deemed to imply any opinion related to the laws of any
other jurisdiction, (iv) may not be quoted or reproduced or delivered by you to
any Other person, and (v) may not be relied upon for any other purpose
whatsoever. Nothing in this opinion shall be deemed to relate to or constitute
an opinion concerning any matters not specifically set forth above.
By giving you this opinion and consent, I do not admit that I am an expert
with respect to any part of the Registration Statement within the meaning of the
term "expert" as used in Section 11 of the Securities Act of 1993, as amended,
or the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
The information set forth herein is as of the date of this letter. I
disclaim any undertaking to advise you of changes which may be brought to my
attention after the effective date of the Registration Statement.
Very truly yours,
/s/ Warren J. Soloski
Warren J. Soloski
STOCK INCENTIVE PLAN
5G WIRELESS COMMUNICATIONS, INC. 2001 STOCK INCENTIVE PLAN
1. GENERAL PROVISIONS
1.1 Purpose.
The 2001 Stock Incentive Plan (the "Plan") is intended to allow designated
officers and employees (all of whom are sometimes collectively referred to
herein as "Employees") and certain Non-Employee Directors and Consultants (all
of whom are sometimes collectively referred to as Selected Persons) of 5G
Wireless Communications, Inc. ("5G) and its Subsidiaries which it may have from
time to time (5G and such Subsidiaries are referred to herein as the "Company")
to receive certain options ("Stock Options") to purchase 5G common stock, $0.001
par value ("Common Stock"), and to receive grants of Common Stock subject to
certain restrictions ("Awards"). As used in this Plan, the term "Subsidiary"
shall mean each corporation which is a "subsidiary corporation" of 5G within the
meaning of Section 424(f) of the Internal Revenue Code of 1986, as amended (the
"Code"). The main purpose of this Plan is to provide Employees and Selected
Persons with equity-based compensation incentives to make significant and
extraordinary contributions to the long-term performance and growth of the
Company, and to attract and retain Employees and Selected Persons of exceptional
ability.
1.2 Administration.
1.2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of, or appointed by, the Board of Directors of 5G (the "Board").
Each member of the Committee shall be a "disinterested person" as that term is
defined in Rule 16b-3 promulgated by the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act"), but no action of the Committee shall be invalid if this requirement is
not met. The Committee shall select one of its members as Chairman and shall act
by vote of a majority of a quorum, or by unanimous written consent. A majority
of its members shall constitute a quorum. The Committee shall be governed by the
provisions of 5G By-Laws and of Nevada law applicable to the Board, except as
otherwise provided herein or determined by the Board.
1.2.2 The Committee shall have full and complete authority, in its
discretion, but subject to the express provisions of the Plan to approve the
Employees and Selected Persons nominated by the management of the Company to be
granted Awards or Stock Options; to determine the number of Awards or Stock
Options to be granted to an Employee or Selected Person; to determine the time
or times at which Awards or Stock Options shall be granted; to establish the
terms and conditions upon which Awards or Stock Options may be exercised; to
remove or adjust any restrictions and conditions upon Awards or Stock Options;
to specify, at the time of grant, provisions relating to exercisability of Stock
Options and to accelerate or otherwise modify the exercisability of any Stock
Options; and to adopt such rules and regulations and to make all other
determinations deemed necessary or desirable for the administration of the Plan.
All interpretations and constructions of the Plan by the Committee, and all of
its actions hereunder, shall be binding and conclusive on all persons for all
purposes.
1.2.3 The Company hereby agrees to indemnify and hold harmless each
Committee member and each employee of the Company, and the estate and heirs of
such Committee member or employee, against all claims, liabilities, expenses,
penalties, damages or other pecuniary losses, including legal fees, which such
Committee member or employee, his or her estate or heirs may suffer as a result
of his or her responsibilities, obligations or duties in connection with the
Plan, to the extent that insurance, if any, does not cover the payment of such
items. No member of the Committee or the Board shall be liable for any action or
determination made in good faith with respect to the Plan or any Award or Stock
Option granted pursuant to the Plan.
1.3 Eligibility and Participation.
Employees eligible under the Plan shall be approved by the Committee from
those Employees and officers and Selected Persons who, in the opinion of the
management of the Company, are in positions which enable them to make
significant and extraordinary contributions to the long-term performance and
growth of the Company. In selecting Employees and officers and Selected Persons
to whom Stock Options or Awards may be granted, consideration shall be given to
factors such as employment position, duties and responsibilities, ability,
productivity, length of service, morale, interest in the Company and
recommendations of supervisors. No member of the Committee shall be eligible to
participate under the Plan or under any other Company plan if such participation
would contravene the standard of paragraph 1.2.1 above relating to
"disinterested persons."
1.4 Shares Subject to the Plan.
The maximum number of shares of Common Stock that may be issued pursuant to
the Plan shall be 5,000,000, subject to adjustment pursuant to the provisions of
paragraph 4.1. If shares of Common Stock awarded or issued under the Plan are
reacquired by the Company due to a forfeiture or for any other reason, such
shares shall be cancelled and thereafter shall again be available for purposes
of the Plan. If a Stock Option expires, terminates or is cancelled for any
reason without having been exercised in full, the shares of Common Stock not
purchased thereunder shall again be available for purposes of the Plan.
2. PROVISIONS RELATING TO STOCK OPTIONS
2.1 Grants of Stock Options.
The Committee may grant Stock Options in such amounts, at such times, and
to such Employees and Selected Persons nominated by the management of the
Company as the Committee, in its discretion, may determine. Stock Options
granted under the Plan shall constitute "incentive stock options" within the
meaning of Section 422 of the Code, if so designated by the Committee on the
date of grant. The Committee shall also have the discretion to grant Stock
Options which do not constitute incentive stock options, and any such Stock
Options shall be designated non-statutory stock options by the Committee on the
date of grant. The aggregate fair market value (determined as of the time an
incentive stock option is granted) of the Common Stock with respect to which
incentive stock options are exercisable for the first time by any Employee or
Selected Person during any one calendar year (under all plans of the Company and
any parent or Subsidiary of the Company) may not exceed the maximum amount
permitted under Section 422 of the Code (currently $100,000.00). Non-statutory
stock options shall not be subject to the limitations relating to incentive
stock options contained in the preceding sentence. Each Stock Option shall be
evidenced by a written agreement (the "Option Agreement") in a form approved by
the Committee, which shall be executed on behalf of the Company and by the
Employee or Selected Person to whom the Stock Option is granted, and which shall
be subject to the terms and conditions of this Plan. In the discretion of the
Committee, Stock Options may include provisions (which need not be uniform),
authorized by the Committee in its discretion, that accelerate an Employee's
rights to exercise Stock Options following a "Change in Control," upon
termination of such Employee employment by the Company without "Cause" or by the
Employee for "Good Reason," as such terms are defined in paragraph 3.1 hereof.
The holder of a Stock Option shall not be entitled to the privileges of stock
ownership as to any shares of Common Stock not actually issued to such holder.
2.2 Purchase Price.
The purchase price (the "Exercise Price") of shares of Common Stock subject
to each Stock Option ("Option Shares") shall equal the fair market value ("Fair
Market Value") of such shares on the date of grant of such Stock Option.
Notwithstanding the foregoing, the Exercise Price of Option Shares subject to an
incentive stock option granted to an Employee or Selected Person who at the time
of grant owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or of any parent or Subsidiary shall be
at least equal to 110% of the Fair Market Value of such shares on the date of
grant of such Stock Option. The Fair Market Value of a share of Common Stock on
any date shall be equal to the closing price (or if no closing price is
reported, the average of the last bid and asked prices) of the Common Stock for
the last preceding day on which 5G s shares were traded, and the method for
determining the closing price shall be determined by the Committee.
2.3 Option Period.
The Stock Option period (the "Term") shall commence on the date of grant of
the Stock Option and shall be ten years or such shorter period as is determined
by the Committee. Notwithstanding the foregoing, the Term of an incentive stock
option granted to an Employee or Selected Person who at the time of grant owns
stock possessing more than 10% of the total combined voting power of all classes
of stock of the Company or of any parent or Subsidiary shall not exceed five
years. Each Stock Option shall provide that it is exercisable over its term in
such periodic installments as the Committee in its sole discretion may
determine. Such provisions need not be uniform. Notwithstanding the foregoing,
but subject to the provisions of paragraphs 1.2.2 and 2.1, Stock Options granted
to Employees and Selected Persons who are subject to the reporting requirements
of Section 16(a) of the Exchange Act ("Section 16 Reporting Persons") shall not
be exercisable until at least six months and one day from the date the Stock
Option is granted.
2.4 Exercise of Options.
2.4.1 Each Stock Option may be exercised in whole or in part (but not as to
fractional shares) by delivering it for surrender or endorsement to the Company,
attention of the Corporate Secretary, at the principal office of the Company,
together with payment of the Exercise Price and an executed Notice and Agreement
of Exercise in the form prescribed by paragraph 2.4.2. Payment may be made (i)
in cash, (ii) by cashier's or certified check, (iii) by surrender of previously
owned shares of the Company's Common Stock valued pursuant to paragraph 2.2 (if
the Committee authorizes payment in stock in its discretion), (iv) by
withholding from the Option Shares which would otherwise be issuable upon the
exercise of the Stock Option that number of Option Shares having an aggregate
fair market value (determined in the manner prescribed by paragraph 2.2) as of
the date of the exercise of the Stock Option equal to the exercise price of the
Stock Option, if such withholding is authorized by the Committee in its
discretion, or (v) in the discretion of the Committee, by the delivery to the
Company of the optionee's promissory note secured by the Option Shares, bearing
interest at a rate sufficient to prevent the imputation of interest under
Sections 483 or 1274 of the Code, and having such other terms and conditions as
may be satisfactory to the Committee.
2.4.2 Exercise of each Stock Option is conditioned upon the agreement of
the Employee or Selected Person to the terms and conditions of this Plan and of
such Stock Option as evidenced by the Employee's or Selected Persons execution
and delivery of a Notice and Agreement of Exercise in a form to be determined by
the Committee in its discretion. Such Notice and Agreement of Exercise shall set
forth the agreement of the Employee or Selected Person that: (a) no Option
Shares will be sold or otherwise distributed in violation of the Securities Act
of 1933 (the "Securities Act") or any other applicable federal or state
securities laws, (b) each Option Share certificate may be imprinted with legends
reflecting any applicable federal and state securities law restrictions and
conditions, (c) the Company may comply with said securities law restrictions and
issue "stop transfer" instructions to its Transfer Agent and Registrar without
liability, (d) if the Employee or Selected Person is a Section 16 Reporting
Person, said person will furnish to the Company a copy of each Form 4 or Form 5
filed by said Employee or Selected Person and will timely file all reports
required under federal securities laws, and (e) the Employee or Selected Person
will report all sales of Option Shares to the Company in writing on a form
prescribed by the Company.
2.4.3 No Stock Option shall be exercisable unless and until any applicable
registration or qualification requirements of federal and state securities laws,
and all other legal requirements, have been fully complied with. The Company
will use reasonable efforts to maintain the effectiveness of a Registration
Statement under the Securities Act for the issuance of Stock Options and shares
acquired thereunder, but there may be times when no such Registration Statement
will be currently effective. The exercise of Stock Options may be temporarily
suspended without liability to the Company during times when no such
Registration Statement is currently effective, or during times when, in the
reasonable opinion of the Committee, such suspension is necessary to preclude
violation of any requirements of applicable law or regulatory bodies having
jurisdiction over the Company. If any Stock Option would expire for any reason
except the end of its term during such a suspension, then if exercise of such
Stock Option is duly tendered before its expiration, such Stock Option shall be
exercisable and exercised (unless the attempted exercise is withdrawn) as of the
first day after the end of such suspension. The Company shall have no obligation
to file any Registration Statement covering resales of Option Shares.
2.5 Continuous Employment.
Except as provided in paragraph 2.7 below, an Employee may not exercise a
Stock Option unless from the date of grant to the date of exercise such Employee
remains continuously in the employ of the Company. For purposes of this
paragraph 2.5, the period of continuous employment of an Employee with the
Company shall be deemed to include (without extending the term of the Stock
Option) any period during which such Employee is on leave of absence with the
consent of the Company, provided that such leave of absence shall not exceed
three months and that such Employee returns to the employ of the Company at the
expiration of such leave of absence. If such Employee fails to return to the
employ of the Company at the expiration of such leave of absence, such
Employee's employment with the Company shall be deemed terminated as of the date
such leave of absence commenced. The continuous employment of an Employee with
the Company shall also be deemed to include any period during which such
Employee is a member of the Armed Forces of the United States, provided that
such Employee returns to the employ of the Company within 90 days (or such
longer period as may be prescribed by law) from the date such Employee first
becomes entitled to discharge. If an Employee does not return to the employ of
the Company within 90 days (or such longer period as may be prescribed by law)
from the date such Employee first becomes entitled to discharge, such Employee's
employment with the Company shall be deemed to have terminated as of the date
such Employee's military service ended.
2.6 Restrictions on Transfer.
Each Stock Option granted under this Plan shall be transferable only by
will or the laws of descent and distribution. No interest of any Employee or
Selected Person under the Plan shall be subject to attachment, execution,
garnishment, sequestration, the laws of bankruptcy or any other legal or
equitable process. Each Stock Option granted under this Plan shall be
exercisable during an Employee's or Selected Persons lifetime only by such
Employee or Selected Person or by such Employee's or Selected Persons legal
representative.
2.7 Termination of Employment.
2.7.1 Upon an Employee's or Selected Persons Retirement, Disability or
death, (a) all Stock Options to the extent then presently exercisable shall
remain in full force and effect and may be exercised pursuant to the provisions
thereof, including expiration at the end of the fixed term thereof, and (b)
unless otherwise provided by the Committee, all Stock Options to the extent not
then presently exercisable by such Employee or Selected Person shall terminate
as of the date of such termination of employment and shall not be exercisable
thereafter.
2.7.2 Upon the termination of the employment of an Employee or Selected
Person with the Company for any reason other than the reasons set forth in
paragraph 2.7.1 hereof, (a) all Stock Options to the extent then presently
exercisable by such Employee or Selected Person shall remain exercisable only
for a period of 90 days after the date of such termination of employment (except
that the 90-day period shall be extended to 12 months if the Employee or
Selected Person shall die during such 90-day period), and may be exercised
pursuant to the provisions thereof, including expiration at the end of the fixed
term thereof, and (b) unless otherwise provided by the Committee, all Stock
Options to the extent not then presently exercisable by such Employee or
Selected Person shall terminate as of the date of such termination of employment
and shall not be exercisable thereafter.
2.7.3 For purposes of this Plan:
(a) "Retirement" shall mean an Employee's or Selected Persons retirement
from the employ of the Company on or after the date on which such Employee or
Selected Person attains the age of sixty-five (65) years; and
(b) "Disability" shall mean total and permanent incapacity of an Employee
or Selected Person, due to physical impairment or legally established mental
incompetence, to perform the usual duties of such Employee's or Selected
Persons employment with the Company, which disability shall be determined: (i)
on medical evidence by a licensed physician designated by the Committee, or (ii)
on evidence that the Employee or Selected Person has become entitled to receive
primary benefits as a disabled employee under the Social Security Act in effect
on the date of such disability.
3. PROVISIONS RELATING TO AWARDS
3.1 Grant of Awards.
Subject to the provisions of the Plan, the Committee shall have full and
complete authority, in its discretion, but subject to the express provisions of
this Plan, to (i) grant Awards pursuant to the Plan, (ii) determine the number
of shares of Common Stock subject to each Award ("Award Shares"), (iii)
determine the terms and conditions (which need not be identical) of each Award,
including the consideration (if any) to be paid by the Employee or Selected
Person for such Common Stock, which may, in the Committee's discretion, consist
of the delivery of the Employee's or Selected Persons promissory note meeting
the requirements of paragraph 2.4.1, (iv) establish and modify performance
criteria for Awards, and (v) make all of the determinations necessary or
advisable with respect to Awards under the Plan. Each award under the Plan shall
consist of a grant of shares of Common Stock subject to a restriction period
(after which the restrictions shall lapse), which shall be a period commencing
on the date the award is granted and ending on such date as the Committee shall
determine (the "Restriction Period"). The Committee may provide for the lapse of
restrictions in installments, for acceleration of the lapse of restrictions upon
the satisfaction of such performance or other criteria or upon the occurrence of
such events as the Committee shall determine, and for the early expiration of
the Restriction Period upon an Employee's or Selected Persons death, Disability
or Retirement as defined in paragraph 2.7.3, or, following a Change of Control,
upon termination of an Employee's or Selected Persons employment by the Company
without "Cause" or by the Employee or Selected Person for "Good Reason," as
those terms are defined herein. For purposes of this Plan:
"Change of Control" shall be deemed to occur (a) on the date the Company
first has actual knowledge that any person (as such term is used in Sections
13(d) and 14(d) (2) of the Exchange Act) has become the beneficial owner (as
defined in Rule 13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of the combined voting power
of the Company's then outstanding securities, or (b) on the date the
shareholders of the Company approve (i) a merger of the Company with or into any
other corporation in which the Company is not the surviving corporation or in
which the Company survives as a subsidiary of another corporation, (ii) a
consolidation of the Company with any other corporation, or (iii) the sale or
disposition of all or substantially all of the Company's assets or a plan of
complete liquidation.
"Cause," when used with reference to termination of the employment of an
Employee or Selected Person by the Company for "Cause," shall mean:
(a) the individual's continuing wilful and material breach of his or her
duties to the Company after he or she receives a demand from the Chief Executive
of the Company specifying the manner in which he or she has wilfully and
materially breached such duties, other than any such failure resulting from
Disability of the individual or his or her resignation for "Good Reason," as
defined herein; or
(b) the conviction of a felony; or
(c) the commission of fraud in the course of his or her employment with the
Company, such as embezzlement or other material and intentional violation of law
against the Company; or
(d) the gross misconduct causing material harm to the Company.
"Good Reason" shall mean any one or more of the following, occurring
following or in connection with a Change of Control and within 90 days prior to
the Employee's or Selected Persons resignation, unless the Employee or Selected
Person shall have consented thereto in writing:
(a) the assignment to the Employee of duties inconsistent with his or her
executive status prior to the Change of Control or a substantive change in the
officer or officers to whom he or she reports from the officer or officers to
whom he or she reported immediately prior to the Change of Control; or
(b) the elimination or reassignment of a majority of the duties and
responsibilities that were assigned to the Employee or Selected Person
immediately prior to the Change of Control; or
(c) a reduction by the Company in the Employee's annual base salary as in
effect immediately prior to the Change of Control; or
(d) the Company's requiring the Employee or Selected Person to be based
anywhere outside a 35-mile radius from his or her place of employment
immediately prior to the Change of Control, except for required travel on the
Company's business to an extent substantially consistent with the Employee's or
Selected Persons business travel obligations immediately prior to the Change of
Control; or
(e) the failure of the Company to grant the Employee a performance bonus
reasonably equivalent to the same percentage of salary the Employee normally
received prior to the Change of Control, given comparable performance by the
Company and the Employee; or
(f) the failure of the Company to obtain a satisfactory Assumption
Agreement (as defined in paragraph 4.12 of the Plan) from a successor, or the
failure of such successor to perform such Assumption Agreement.
3.2 Incentive Agreements.
Each Award granted under the Plan shall be evidenced by a written agreement
(an "Incentive Agreement") in a form approved by the Committee and executed by
the Company and the Employee or Selected Person to whom the Award is granted.
Each Incentive Agreement shall be subject to the terms and conditions of the
Plan and other such terms and conditions as the Committee may specify.
3.3 Waiver of Restrictions.
The Committee may modify or amend any Award under the Plan or waive any
restrictions or conditions applicable to such Awards; provided, however, that
the Committee may not undertake any such modifications, amendments or waivers if
the effect thereof materially increases the benefits to any Employee or Selected
Person, or adversely affects the rights of any Employee or Selected Person
without his or her consent.
3.4 Terms and Conditions of Awards.
3.4.1 Upon receipt of an Award of shares of Common Stock under the Plan,
even during the Restriction Period, an Employee or Selected Person shall be the
holder of record of the shares and shall have all the rights of a shareholder
with respect to such shares, subject to the terms and conditions of the Plan and
the Award.
3.4.2 Except as otherwise provided in this paragraph 3.4, no shares of
Common Stock received pursuant to the Plan shall be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of during the
Restriction Period applicable to such shares. Any purported disposition of such
Common Stock in violation of this paragraph 3.4.2 shall be null and void.
3.4.3 If an Employee's or Selected Persons employment with the Company
terminates prior to the expiration of the Restriction Period for an Award,
subject to any provisions of the Award with respect to the Employee's or
Selected Persons death, Disability or Retirement, or Change of Control, all
shares of Common Stock subject to the Award shall be immediately forfeited by
the Employee or Selected Person and reacquired by the Company, and the Employee
or Selected Person shall have no further rights with respect to the Award. In
the discretion of the Committee, an Incentive Agreement may provide that, upon
the forfeiture by an Employee or Selected Person of Award Shares, the Company
shall repay to the Employee or Selected Person the consideration (if any) which
the Employee or Selected Person paid for the Award Shares on the grant of the
Award. In the discretion of the Committee, an Incentive Agreement may also
provide that such repayment shall include an interest factor on such
consideration from the date of the grant of the Award to the date of such
repayment.
3.4.4 The Committee may require under such terms and conditions as it deems
appropriate or desirable that (i) the certificates for Common Stock delivered
under the Plan are to be held in custody by the Company or a person or
institution designated by the Company until the Restriction Period expires, (ii)
such certificates shall bear a legend referring to the restrictions on the
Common Stock pursuant to the Plan, and (iii) the Employee or Selected Person
shall have delivered to the Company a stock power endorsed in blank relating to
the Common Stock.
4. MISCELLANEOUS PROVISIONS
4.1 Adjustments Upon Change in Capitalization.
4.1.1 The number and class of shares subject to each outstanding Stock
Option, the Exercise Price thereof (but not the total price), the maximum number
of Stock Options that may be granted under the Plan, the minimum number of
shares as to which a Stock Option may be exercised at any one time, and the
number and class of shares subject to each outstanding Award, shall
be proportionately adjusted in the event of any increase or decrease in the
number of the issued shares of Common Stock which results from a split-up or
consolidation of shares, payment of a stock dividend or dividends exceeding a
total of 5% for which the record dates occur in any one fiscal year, a
recapitalization (other than the conversion of convertible securities according
to their terms), a combination of shares or other like capital adjustment, so
that (i) upon exercise of the Stock Option, the Employee or Selected Person
shall receive the number and class of shares such Employee or Selected Person
would have received had such Employee or Selected Person been the holder of the
number of shares of Common Stock for which the Stock Option is being exercised
upon the date of such change or increase or decrease in the number of issued
shares of the Company, and (ii) upon the lapse of restrictions of the Award
Shares, the Employee or Selected Person shall receive the number and class of
shares such Employee or Selected Person would have received if the restrictions
on the Award Shares had lapsed on the date of such change or increase or
decrease in the number of issued shares of the Company.
4.1.2 Upon a reorganization, merger or consolidation of the Company with
one or more corporations as a result of which 5G is not the surviving
corporation or in which 5G survives as a wholly-owned subsidiary of another
corporation, or upon a sale of all or substantially all of the property of the
Company to another corporation, or any dividend or distribution to shareholders
of more than 10% of the Company's assets, adequate adjustment or other
provisions shall be made by the Company or other party to such transaction so
that there shall remain and/or be substituted for the Option Shares and Award
Shares provided for herein, the shares, securities or assets which would have
been issuable or payable in respect of or in exchange for such Option Shares and
Award Shares then remaining, as if the Employee or Selected Person had been the
owner of such shares as of the applicable date. Any securities so substituted
shall be subject to similar successive adjustments.
4.2 Withholding Taxes.
The Company shall have the right at the time of exercise of any Stock
Option, the grant of an Award, or the lapse of restrictions on Award Shares, to
make adequate provision for any federal, state, local or foreign taxes which it
believes are or may be required by law to be withheld with respect to such
exercise ("Tax Liability"), to ensure the payment of any such Tax Liability. The
Company may provide for the payment of any Tax Liability by any of the following
means or a combination of such means, as determined by the Committee in its sole
and absolute discretion in the particular case: (i) by requiring the Employee or
Selected Person to tender a cash payment to the Company, (ii) by withholding
from the Employee's salary or Selected Persons payment, (iii) by withholding
from the Option Shares which would otherwise be issuable upon exercise of the
Stock Option, or from the Award Shares on their grant or date of lapse of
restrictions, that number of Option Shares or Award Shares having an aggregate
fair market value (determined in the manner prescribed by paragraph 2.2) as of
the date the withholding tax obligation arises in an amount which is equal to
the Employee's or Selected Persons Tax Liability or (iv) by any other method
deemed appropriate by the Committee. Satisfaction of the Tax Liability of a
Section 16 Reporting Person may be made by the method of payment specified in
clause (iii) above only if the following two conditions are satisfied:
(a) the withholding of Option Shares or Award Shares and the exercise of
the related Stock Option occur at least six months and one day following the
date of grant of such Stock Option or Award; and
(b) the withholding of Option Shares or Award Shares is made either
(i)pursuant to an irrevocable election ("Withholding Election") made by such
Employee or Selected Person at least six months in advance of the withholding of
Options Shares or Award Shares, or (ii) on a day within a ten-day "window
period" beginning on the third business day following the date of release of the
Company's quarterly or annual summary statement of sales and earnings.
Anything herein to the contrary notwithstanding, a Withholding Election may
be disapproved by the Committee at any time.
4.3 Relationship to Other Employee Benefit Plans.
Stock Options and Awards granted hereunder shall not be deemed to be salary
or other compensation to any Employee or Selected Person for purposes of any
pension, thrift, profit-sharing, stock purchase or any other employee benefit
plan now maintained or hereafter adopted by the Company.
4.4 Amendments and Termination.
The Board of Directors may at any time suspend, amend or terminate this
Plan. No amendment or modification of this Plan may be adopted, except subject
to stockholder approval, which would: (a) materially increase the benefits
accruing to Employees or Selected Persons and officers under this Plan, (b)
materially increase the number of securities which may be issued under this Plan
(except for adjustments pursuant to paragraph 4.1 hereof), or (c) materially
modify the requirements as to eligibility for participation in the Plan.
4.5 Successors in Interest.
The provisions of this Plan and the actions of the Committee shall be
binding upon all heirs, successors and assigns of the Company and of Employees,
Selected Persons and officers.
4.6 Other Documents.
All documents prepared, executed or delivered in connection with this Plan
(including, without limitation, Option Agreements and Incentive Agreements)
shall be, in substance and form, as established and modified by the Committee;
provided, however, that all such documents shall be subject in every respect to
the provisions of this Plan, and in the event of any conflict between the terms
of any such document and this Plan, the provisions of this Plan shall prevail.
4.7 No Obligation to Continue Employment.
This Plan and grants hereunder shall not impose any obligation on the
Company to continue to employ any Employee or Selected Person. Moreover, no
provision of this Plan or any document executed or delivered pursuant to this
Plan shall be deemed modified in any way by any employment contract between an
Employee (or other employee) or Selected Person and the Company.
4.8 Misconduct of an Employee.
Notwithstanding any other provision of this Plan, if an Employee or
Selected Person commits fraud or dishonesty toward the Company or wrongfully
uses or discloses any trade secret, confidential data or other information
proprietary to the Company, or intentionally takes any other action materially
inimical to the best interests of the Company, as determined by the Committee,
in its sole and absolute discretion, such individual shall forfeit all rights
and benefits under this Plan.
4.9 Term of Plan.
This Plan was adopted by the Board effective October 2, 2001. No Stock
Options or Awards may be granted under this Plan after October 1, 2011.
4.10 Governing Law.
This Plan shall be construed in accordance with, and governed by, the laws
of the State of Nevada.
4.11 Shareholder Approval.
No Stock Option shall be exercisable, or Award granted, unless and until
the Shareholders of the Company have approved this Plan and all other legal
requirements have been fully complied with.
4.12 Assumption Agreements.
The Company will require each successor, (direct or indirect, whether by
purchase, merger, consolidation or otherwise), to all or substantially all of
the business or assets of the Company, prior to the consummation of each such
transaction, to assume and agree to perform the terms and provisions remaining
to be performed by the Company under each Incentive Agreement and Stock Option
and to preserve the benefits to the Employees and officers and non employee
directors thereunder. Such assumption and agreement shall be set forth in a
written agreement in form and substance satisfactory to the Committee (an
"Assumption Agreement"), and shall include such adjustments, if any, in the
application of the provisions of the Incentive Agreements and Stock Options and
such additional provisions, if any, as the Committee shall require and approve,
in order to preserve such benefits to the Employees, Selected Persons and
officers. Without limiting the generality of the foregoing, the Committee may
require an Assumption Agreement to include satisfactory undertakings by a
successor:
(a) to provide liquidity to the Employees and Selected Persons at the end
of the Restriction Period applicable to Common Stock awarded to them under the
Plan, or on the exercise of Stock Options;
(b) if the succession occurs before the expiration of any period specified
in the Incentive Agreements for satisfaction of performance criteria applicable
to the Common Stock awarded thereunder, to refrain from interfering with the
Company's ability to satisfy such performance criteria or to agree to modify
such performance criteria and/or waive any criteria that cannot be satisfied as
a result of the succession;
(c) to require any future successor to enter into an Assumption Agreement;
and
(d) to take or refrain from taking such other actions as the Committee may
require and approve, in its discretion.
The Committee referred to in this paragraph 4.12 is the Committee appointed by a
Board of Directors in office prior to the succession then under consideration.
4.13 Compliance With Rule 16B-3.
Transactions under the Plan are intended to comply with all applicable
conditions of Rule 16b-3. To the extent that any provision of the Plan or action
by the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
IN WITNESS WHEREOF, this Plan has been executed effective
as of the ____ day of November , 2001.
5G WIRELESS COMMUNICATIONS, INC.
By: /S/ Michael Tan
Michael Tan
President
WARREN J. SOLOSKI
CONSENT OF COUNSEL
I consent to the filing of this opinion as an exhibit to any filing made
with the Securities and Exchange Commission or under any state or other
jurisdiction's securities act for the purposes of registering, qualifying or
establishing eligibility for an exemption from registration or qualification of
the stock issued as described in the Registration Statement in connection with
the offering described therein.
/s/ Warren J. Soloski
Warren J. Soloski
Special Counsel to 5G Wireless Communications, Inc.
Randy Simpson, P. C., PC
CERTIFIED PUBLIC ACCOUNTANTS Letterhead
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement of 5G Wireless
Communications, Inc. on Form S-8 from our report relating to the financial
statements of 5G Wireless Communications, Inc. for the year ending December 31,
2000.
/s/ rtified Public Accountants