UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KOALA INTERNATIONAL WIRELESS INC.
-------------------------------------
(Exact Name of Registrant as Specified in its Charter)
NEVADA 76-0616468
------------------- ---------------
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
141 - 757 WEST HASTINGS ST. SUITE 676
VANCOUVER, B.C., CANADA V6C 1A1
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(Address of Principal Executive Offices) (Zip Code)
KOALA INTERNATIONAL WIRELESS INC.
2001 STOCK OPTION PLAN
----------------------------------------
(Full Title of the Plan)
(name, address and telephone number of agent for service) (with copies to)
Christine Cerisse Derek Woolston, Esq.
Chairman of the Board Ogden Murphy Wallace P.L.L.C.
Koala International Wireless Inc. Attorneys at Law
141 - 757 West Hastings St., Suite 676 1601 Fifth Avenue, Suite 2100
Vancouver, B.C., Canada V6C 1A1 Seattle, Washington 98101
(604) 681-7806 (206) 447-7000
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
Registered registered (1)(3) share price registration fee
- -----------------------------------------------------------------------------------------------------------
Common Stock
par value $0.001 2,000,000 $ 3.27(2) $ 6,550,000 (2) $ 1,565.45
- ------------------------- ----------------- -------------------- -------------------- -----------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the 2001 Stock Option Plan
described herein.
(2) Estimated pursuant to Rules 457(h) and 457(c), solely for the purpose of
computing the amount of the registration fee, based on the average of the
bid and asked price of the Common Stock on March 19, 2002 as reported on
the OTC Bulletin Board.
(3) This registration statement also covers additional shares of common
stock which become issuable under the 2001 Stock Option Plan with respect
to the securities registered hereunder by reason of a reorganization,
recapitalization, stock split, stock dividend, combination of shares,
merger or consolidation, or the sale, conveyance or other transfer by Koala
International Wireless Inc. of all or substantially all of its property or
other similar transaction effected without receipt of consideration
which results in an increase in the number of outstanding shares of Koala
International Wireless Inc. stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
Item 1. Plan Information.*
-----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Items 1 and 2 of Part I to be contained in the
Section 10(a) Prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended, and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
-------------------------------------------
The following documents filed by Koala International Wireless Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
a. The Registrant's registration statement on Form 10-SB filed with the
Commission on March 22, 2001;
b. All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the effective date of its Form 10-SB (or May
21, 2001); and
c. The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 10-SB filed under the
Exchange Act on March 22, 2001, including any amendment or report
filed for the purpose of updating such description.
All documents filed with the Commission by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered herein have been sold
or which deregisters all securities then remaining unsold, are deemed to be
incorporated by reference in this Registration Statement and to be a part
thereof from the date of filing of such documents.
Any statement contained herein or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference shall be deemed
to be modified or superseded for purposes of this Registration Statement to
the extent that a statement contained in any subsequently filed document
modifies or supersedes such first statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
---------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
------------------------------------------
None.
2
Item 6. Indemnification of Directors and Officers.
---------------------------------------------
As authorized by Section 78.751 of the Nevada General Corporation Law, the
Registrant may indemnify its officers and directors against expenses
incurred by such persons in connection with any threatened, pending or
completed action, suit or proceedings, whether civil, criminal,
administrative or investigative, involving such persons in their capacities
as officers and directors, so long as such persons acted in good faith and
in a manner which they reasonably believed to be in the Registrant's best
interests. If the legal proceeding, however, is by or in the Registrant's
right, the director or officer may not be indemnified in respect of any
claim, issue or matter as to which he is adjudged to be liable for
negligence or misconduct in the performance of his duty to the Registrant
unless a court determines otherwise.
Under Nevada law, corporations may also purchase and maintain insurance or
make other financial arrangements on behalf of any person who is or was a
director or officer (or is serving at the request of the corporation as a
director or officer of another corporation) for any liability asserted
against such person and any expenses incurred by him in his capacity as a
director or officer. These financial arrangements may include trust funds,
self-insurance programs, guarantees and insurance policies.
The Registrant's articles of incorporation, as amended, provide that its
directors or officers shall not be personally liable to the Registrant or
any of its stockholders for damages resulting from breaches of fiduciary
duty as a director or officer for acts or omissions, except for damages
resulting from acts or omissions which involve intentional misconduct,
fraud, a knowing violation of law, or the payment of dividends in violation
of the Nevada Revised Statutes.
The Registrant's bylaws provide for the indemnification of officers and
directors to the fullest extent possible under Nevada Law, against expenses
(including attorney's fees), judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with any proceeding,
arising by reason of the fact that such person is or was an agent of the
Registrant. The Registrant is also granted the power, to the maximum extent
and in the manner permitted by the Nevada Revised Statutes, to indemnify
each of its employees and agents (other than directors and officers)
against expenses (including attorneys' fees), judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with any
proceeding, arising by reason of the fact that such person is or was the
Registrant's agent.
Item 7. Exemption from Registration Claimed.
--------------------------------------
Not applicable.
Item 8. Exhibits.
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The following exhibits included herewith or incorporated herein by
reference are made part of this Registration Statement:
5.1 Opinion of Ogden Murphy Wallace, P.L.L.C.;
10.1* Koala International Wireless Inc. 2001 Stock Option Plan;
10.2 Form of Stock Option Agreement - Incentive Stock Option;
10.3 Form of Stock Option Agreement - Nonqualified Stock Option;
23.1 Consent of Manning Elliott, Chartered Accountants;
23.2 Consent of Pannell Kerr Forster, Chartered Accountants;
23.3 Consent of Ogden Murphy Wallace, P.L.L.C. (see Exhibit 5.1);
24 Power of Attorney (included on signature page).
* Filed previously on December 31, 2001, as an exhibit to the Registrant's
annual report on Form 10-KSB and incorporated herein by reference.
3
Item 9. Undertakings.
------------
The undersigned 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To 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, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii)To 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, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the forgoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the 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, the
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 by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
4
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
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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 Toronto, Province of Ontario, on February 1, 2002.
KOALA INTERNATIONAL WIRELESS INC.
/s/ Michael McGrath
---------------------------
By: Michael McGrath
Its: President
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
- ---------
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Toronto, Province of
Ontario, on February 1, 2002.
KOALA INTERNATIONAL WIRELESS INC.
2001 STOCK OPTION PLAN
/s/ Michael McGrath
-----------------------
By: Michael McGrath
Its: President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael McGrath, as his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 of Koala International Wireless Inc., and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, grant unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the foregoing, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates stated.
Signature Title Date
- -------------------------- -------------------------------- ----------------
/s/ Michael McGrath
- --------------------------
Michael McGrath President and Director February 1, 2002
/s/ Robert Vivacqua
- --------------------------
Robert Vivacqua Secretary and Director February 1, 2002
/s/ Christine Cerisse
- --------------------------
Christine Cerisse Chairman, Treasurer and Director February 1, 2002
/s/ Lorne Catling
- --------------------------
Lorne Catling Director February 1, 2002
/s/ Larry Wintemute
- --------------------------
Larry Wintemute Director February 1, 2002
5
EXHIBIT INDEX
Exhibit Number Description
- --------------- -----------
5.1 Opinion of Ogden Murphy Wallace, P.L.L.C.;
10.1* Koala International Wireless Inc. 2001 Stock Option Plan;
10.2 Form of Stock Option Agreement - Incentive Stock Option;
10.3 Form of Stock Option Agreement - Nonqualified Stock Option;
23.1 Consent of Manning Elliott, Chartered Accountants;
23.2 Consent of Pannell Kerr Forster, Chartered Accountants;
23.3 Consent of Ogden Murphy Wallace, P.L.L.C. (see Exhibit 5.1);
24 Power of Attorney (included on signature page).
* Filed previously on December 31, 2001, as an exhibit to the Registrant's
annual report on Form 10-KSB and incorporated herein by reference.
EXHIBIT 5.1
-----------
[OGDEN MURPHY WALLACE, PLLC LETTERHEAD]
February 4, 2002
Koala International Wireless Inc.
Suite 676, 141 - 757 West Hastings Street
Vancouver, BC
Canada
V6C 1A1
Attn: Board of Directors
Re: Registration Statement on Form S-8 of Koala International Wireless Inc.;
-----------------------------------------------------------------------
Koala International Wireless Inc. 2001 Stock Option Plan
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 (the
"Registration Statement") executed by you on February 1, 2002, and to be filed
with the Securities and Exchange Commission (the "SEC") in connection with the
registration under the Securities Act of 1933, as amended, of Two Million
(2,000,000) shares of your common stock, par value of $0.001 per share (the
"Common Stock"), which will be issuable under the Koala International Wireless
Inc. 2001 Stock Option Plan (the "Plan").
As your counsel in connection with the Registration Statement, we have examined
the proceedings taken by you in connection with the adoption of the Plan and the
authorization of the issuance of the shares of Common Stock under the Plan (the
"Plan Shares") and such documents as we have deemed necessary to render this
opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when issued
and outstanding pursuant to the terms of the Plan, will be validly issued, fully
paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very truly yours,
OGDEN MURPHY WALLACE, P.L.L.C.
/s/ James L. Vandeberg
James L. Vandeberg
EXHIBIT 10.2
------------
KOALA INTERNATIONAL WIRELESS INC.
2001 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
(INCENTIVE STOCK OPTION)
EMPLOYEE/OPTIONEE: [[ Name ]]
NUMBER OF SHARES : [[ Total Shares ]] Shares
OPTION EXERCISE PRICE:$ _________ per Share
DATE OF GRANT: [[ Grant Date ]]
EXERCISE TERM: A Period of _____ Years from the Date of Grant
VESTING SCHEDULE: Percentage
of Shares Date (from Grant Date)
----------- ----
______* __________
______* __________
______* __________
______* __________
*rounded to the next whole number of Shares
THIS OPTION AGREEMENT (the "AGREEMENT") is entered into effective as of the
_______ day of __________, 2001 by and between KOALA INTERNATIONAL WIRELESS
INC., a Nevada corporation (the "COMPANY"), and the individual designated above
(the "OPTIONEE").
RECITALS
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A. The 2001 Stock Option Plan (the "PLAN") was adopted by the Company on
______________, 2001, and by the shareholders on ____________, 2001; and
B. The Optionee performs valuable services for the Company, a
Subsidiary or a Parent; and
C. As of the date hereof, the Board of Directors of the Company granted the
Option as provided herein;
2001 STOCK OPTION PLAN
1
NOW, THEREFORE, the parties agree to the terms and conditions herein,
including the recitals.
1. GRANT OF OPTION.
-----------------
1.1 Option. An option to purchase shares of the Company's Common
-------
Stock, $0.001 par value per share, (the "SHARES") is hereby granted to the
Optionee (the "OPTION").
1.2 Number of Shares. The number of Shares that the Optionee can
------------------
purchase upon exercise of the Option and the dates upon which the Option can
first be exercised are set forth above.
1.3 Option Exercise Price. The price the Optionee must pay to exercise
---------------------
the Option (the "OPTION EXERCISE PRICE") is set forth above.
1.4 Date of Grant. The date the Option is granted (the "DATE OF
---------------
GRANT") is set forth above.
1.5 Type of Option. The Option is intended to qualify as an Incentive
---------------
Stock Option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended from time to time, or any successor provision thereto, and
shall be so construed; provided, however, that nothing in this Agreement shall
be interpreted as a representation, guarantee or other undertaking on the part
of the Company that the Option is or will be determined to be an Incentive Stock
Option within the meaning of Section 422 of the Code. To the extent this Option
does not qualify and is not treated as an Incentive Stock Option, it will be
treated as a Nonqualified Stock Option.
1.6 Construction. This Agreement shall be construed in accordance and
------------
consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference) and, except as otherwise expressly
set forth herein, the capitalized terms used in this Agreement shall have the
same definitions as set forth in the Plan.
1.7 Condition. The Option is conditioned on the Optionee's execution
---------
of this Agreement. If this Agreement is not executed by the Optionee it may be
canceled by the Board.
2. DURATION.
--------
The Option shall be exercisable to the extent and in the manner provided
herein during the EXERCISE TERM, which is set forth above; provided, however,
that the Option may be earlier terminated as provided in the Plan or in Section
1.7 or Section 5 hereof.
3. VESTING.
-------
The Option shall vest, and may be exercised, with respect to the Shares, on
or after the dates set forth above, subject to earlier termination of the Option
as provided in Section 1.7 and Section 5 hereof or in the Plan. The right to
purchase the Shares as they become vested shall be cumulative and shall continue
during the Exercise Term unless sooner terminated as provided herein.
2001 STOCK OPTION PLAN
2
4. MANNER OF EXERCISE AND PAYMENT.
----------------------------------
4.1 To exercise the Option, the Optionee must deliver a completed copy
of the OPTION EXERCISE FORM, attached hereto as EXHIBIT A, to the address
indicated on such Form or such other address designated by the Company from time
to time. The Option may be exercised in whole or in part with respect to the
vested Shares; provided, however, the Committee may establish a minimum number
of Shares (e.g., 100) for which an Option may be exercised at a particular time.
Within thirty (30) days of delivery of the Option Exercise Form, the Company
shall deliver certificates evidencing the Shares to the Optionee, duly endorsed
for transfer to the Optionee, free and clear of all liens, security interests,
pledges or other claims or charges. Contemporaneously with the delivery of the
Option Exercise Form, Optionee shall tender the Option Exercise Price to the
Company, by cash, check, wire transfer or such other method of payment (e.g.,
delivery or attestation of Shares already owned) as may be acceptable to the
Committee pursuant to the Plan.
4.2 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to any Shares subject to the Option
until (i) the Option shall have been exercised pursuant to the terms of this
Agreement and the Optionee shall have paid the full purchase price for the
number of Shares in respect of which the Option was exercised, (ii) the Company
shall have issued and delivered the Shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
5. TERMINATION OF EMPLOYMENT.
----------------------------
5.1 Termination of Employment Due to Death. In the event of the death
---------------------------------------
of the Optionee, who at the time of his or her death was an Employee or
Consultant and who had been in Continuous Status as an Employee or Consultant
since the date of the grant of the option, any vested Option shall terminate on
the earlier of (i) six (6) months after the date of the Optionee's death, or
(ii) the expiration date otherwise provided in this Agreement. Under these
circumstances, the Option will be exercisable at any time prior to such
termination by the Optionee's estate, or by such person or persons who have
acquired the right to exercise the Option by bequest or by inheritance or by
reason of the death of the Optionee. Any nonvested Option terminates immediately
upon the death of the Optionee.
5.2 Termination of Employment Due to Disability. If an Optionee's
------------------------------------------------
status as an Employee or Consultant is terminated at any time during the Option
period by reason of a disability (within the meaning of Section 22(e)(3) of the
Code) and if the Optionee had been in Continuous Status as an Employee at all
times since the date of grant of the Option, any vested Option shall terminate
on the earlier of (i) six (6) months after the date of termination of his or
her status as an Employee or Consultant, or (ii) the expiration date otherwise
provided in the Option agreement. Any nonvested Option terminates immediately
upon termination of the Optionee's status as an Employee or Consultant.
5.3 Termination of Employment for Other Reasons. If an Optionee's
------------------------------------------------
status as an Employee is terminated by the Optionee at any time after the grant
of an Option for any reason other than death or disability, as provided in
Sections 5.1 and 5.2, and not for "cause" as provided below, then any vested
Option terminates on the earlier of (i) three (3) months after the date of
2001 STOCK OPTION PLAN
3
termination of his or her status as an Employee or Consultant, or (ii) the
expiration date otherwise provided in the Option agreement. Any nonvested
Options are terminated immediately upon termination of Optionee's status as an
Employee or Consultant. If the Optionee's status as an Employee is terminated
for "cause" (such termination being referred to as a "Termination for Cause") at
any time by the Company after the grant of an Option by the Company, then the
Option terminates on the date of termination of Optionee's status as an
Employee. For purposes of this Section 5.3, Termination for Cause shall mean a
termination due to objective evidence of any of the following: (i) conviction
of a felony; (ii) illegal conduct that is injurious to the Company; (iii)
willful or gross misconduct in carrying out duties; (iv) material dishonesty
related to employment; or (v) fraud.
5.4 Employment by Subsidiary. For purposes of this Section and Section
------------------------
8, employment with the Company includes employment with any Parent or Subsidiary
of the Company and service as a Director of the Company or any Parent or
Subsidiary shall be considered employment with the Company. A change of
employment between the Company and any Parent or Subsidiary (or between
Subsidiaries or between a Subsidiary and a Parent) is not a termination of
employment under this Agreement.
6. NONTRANSFERABILITY.
------------------
The Option shall not be transferable other than by will or by the laws of
descent and distribution. During the lifetime of the Optionee, the Option shall
be exercisable only by the Optionee.
7. RESTRICTIONS ON THE OPTIONS; RESTRICTIONS ON THE SHARES.
--------------------------------------------------------------
The Option may not be exercised at any time unless, in the opinion of
counsel for the Company, the issuance and sale of the Shares issued upon such
exercise is exempt from registration under the Securities Act of 1933, as
amended, or any other applicable federal or state securities law, rule or
regulation, or the Shares have been duly registered under such laws. The
Company shall not be required to register the Shares issuable upon the exercise
of the Option under any such laws. Unless the Shares have been registered under
all applicable laws, the Optionee shall represent, warrant and agree, as a
condition to the exercise of the Option, that the Shares are being purchased for
investment only and without a view to any sale or distribution of such Shares
and that such Shares shall not be transferred or disposed of in any manner
without registration under such laws, unless it is the opinion of counsel for
the Company that such a disposition is exempt from such registration. The
Optionee acknowledges that an appropriate legend, in such form as the Company
shall determine, giving notice of the foregoing restrictions shall appear
conspicuously on all certificates evidencing the Shares issued upon the exercise
of the Option.
The Optionee also acknowledges and agrees that, in connection with any
public offering of the Company's stock, upon request of the Company or the
underwriters managing any underwritten public offering of the Company's stock
and making such request with the approval of the Company's Board of Directors,
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any of his Shares without the prior written consent of
the Company or such underwriters, as the case may be, from the effective date of
such registration for so long as the Company or the underwriters may specify,
but in any event not to exceed 180 days.
2001 STOCK OPTION PLAN
4
8. NO RIGHT TO CONTINUED EMPLOYMENT.
------------------------------------
Nothing in this Agreement or the Plan shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of employment by
the Company or any Parent or Subsidiary, nor shall this Agreement or the Plan
interfere in any way with the right of the Company or a Parent or Subsidiary to
terminate the Optionee's employment at any time.
9. ADJUSTMENTS UPON CERTAIN EVENTS.
----------------------------------
In the event of a change in capitalization, such as a stock split, the
Committee shall make appropriate adjustments to the number and class of Shares
or other stock or securities subject to the Option and the purchase price for
such Shares or other stock or securities. The Committee's adjustment shall be
made in accordance with the provisions of Section 6(j) of the Plan and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
Subject to Section 6(l) of the Plan, in the event of a liquidation or
dissolution, any unexercised options will terminate.
Subject to Section 6(m) of the Plan, upon a merger, consolidation,
separation, reorganization or other business combination involving the Company,
the Option shall be assumed or replaced with a substitute equivalent option
under the Plan or any successor plan (whether created by the Company or its
acquirer).
10. WITHHOLDING OF TAXES.
----------------------
The Company shall have the right to deduct from any distribution of cash to
the Optionee an amount equal to the federal, state and local income taxes and
other amounts as may be required by law to be withheld (the "Withholdings
Taxes") with respect to the Option. If the Optionee is entitled to receive
Shares upon exercise of the Option, the Optionee shall pay the Withholdings
Taxes (if any) to the Company in cash prior to the issuance of such Shares. In
satisfaction of the Withholdings Taxes, the Optionee may make a written election
(the "Tax Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the Shares issuable to him or her upon
exercise of the Option, having an aggregate Fair Market Value equal to the
Withholdings Taxes, provided that, if the Optionee may be subject to liability
under Section 16(b) of the Exchange Act, the election must comply with the
requirements applicable to Share transactions by such Optionees.
11. MODIFICATION OF AGREEMENT.
---------------------------
This Agreement may be modified, amended, suspended or terminated, and any
terms or conditions may be waived, only by a written instrument executed by the
parties hereto.
12. SEVERABILITY.
------------
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such Holdings and shall
continue in full force in accordance with their terms.
2001 STOCK OPTION PLAN
5
13. GOVERNING LAW.
--------------
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Nevada without giving
effect to the conflicts of laws principles thereof.
14. SUCCESSORS IN INTEREST.
------------------------
This Agreement shall be binding upon, and inure to the benefit of, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Optionee's heirs and legal
representatives. All obligations imposed upon the Optionee and all rights
granted to the Company under this Agreement shall be final, binding and
conclusive upon the Optionee's heirs, executors, administrators and successors.
15. RESOLUTION OF DISPUTES.
------------------------
Any dispute or disagreement which may arise under, or as a result of, or in
any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Board. Any determination made hereunder
shall be final, binding and conclusive on the Optionee and the Company for all
purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2001 STOCK OPTION PLAN
6
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
KOALA INTERNATIONAL WIRELESS INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
By signing below, Optionee hereby accepts the Option subject to all its
terms and provisions and agrees to be bound by the terms and provisions of the
Plan. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors of the Company, and of
the Committee responsible for administration of the Plan, upon any questions
arising under the Plan. Optionee authorizes the Company to withhold, in
accordance with applicable law, from any compensation payable to him or her, any
taxes required to be withheld by federal, state or local law as a result of the
grant, existence or exercise of the Option or subsequent sale of the Shares.
OPTIONEE
Signature:
--------------------------
Name: [[ Name ]]
[EXHIBIT FOLLOWS]
2001 STOCK OPTION PLAN
7
EXHIBIT A
---------
OPTION EXERCISE FORM
--------------------
I, _____________________________, do hereby exercise the Option with a Date
of Grant of ___________________, ______ granted to me pursuant to the Option
Agreement. The Shares being purchased and the Total Option Exercise Price are
set forth below:
Number of Shares: ________________ Shares
Option Exercise Price Per Share x $____________ per Share
Total Option Exercise Price: = $____________
The Total Option Exercise Price is included with this Form.
____________________________________ Date: ___________________
Signature
Send or deliver this Form with an original signature to
Koala International Wireless Inc.
Attn: President
Suite #676
141-757 West Hastings Street
Vancouver, BC. V6C 1A1
CANADA
EXHIBIT 10.3
------------
KOALA INTERNATIONAL WIRELESS INC.
2001 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
(NONQUALIFIED STOCK OPTION)
EMPLOYEE/OPTIONEE: [[ Name ]]
NUMBER OF SHARES : [[ Total Shares ]] Shares
OPTION EXERCISE PRICE:$ _________ per Share
DATE OF GRANT: [[ Grant Date ]]
EXERCISE TERM: A Period of _______ Years from the Date of Grant
VESTING SCHEDULE: Percentage
of Shares Date (from Grant Date)
---------- ----
______* __________
______* __________
______* __________
______* __________
*rounded to the next whole number of Shares
THIS OPTION AGREEMENT (the "AGREEMENT") is entered into effective as of the
_______ day of __________, 2001 by and between KOALA INTERNATIONAL WIRELESS
INC., a Nevada corporation (the "COMPANY"), and the individual designated above
(the "OPTIONEE").
RECITALS
--------
A. The 2001 Stock Option Plan (the "PLAN") was adopted by the Company on
________ ______, 2001, and by the shareholders on ____________, 2001; and
B. The Optionee performs valuable services for the Company, a
Subsidiary or a Parent; and
C. As of the date hereof, the Board of Directors of the Company granted
the Option as provided herein;
2001 STOCK OPTION PLAN
1
NOW, THEREFORE, the parties agree to the terms and conditions herein,
including the recitals.
1. GRANT OF OPTION.
-----------------
1.1 Option. An option to purchase shares of the Company's Common
-------
Stock, $0.001 par value per share, (the "SHARES") is hereby granted to the
Optionee (the "OPTION").
1.2 Number of Shares. The number of Shares that the Optionee can
------------------
purchase upon exercise of the Option and the dates upon which the Option can
first be exercised are set forth above.
1.3 Option Exercise Price. The price the Optionee must pay to
-----------------------
exercise the Option (the "OPTION EXERCISE PRICE") is set forth above.
1.4 Date of Grant. The date the Option is granted (the "DATE OF
---------------
GRANT") is set forth above.
1.5 Type of Option. The Option is intended to be a Nonqualified Stock
--------------
Option. It is not intended to qualify as an Incentive Stock Option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time, or any successor provision thereto.
1.6 Construction. This Agreement shall be construed in accordance and
------------
consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference) and, except as otherwise expressly
set forth herein, the capitalized terms used in this Agreement shall have the
same definitions as set forth in the Plan.
1.7 Condition. The Option is conditioned on the Optionee's execution
---------
of this Agreement. If this Agreement is not executed by the Optionee it may be
canceled by the Board.
2. DURATION.
--------
The Option shall be exercisable to the extent and in the manner provided
herein during the Exercise Term, which is set forth above; provided, however,
that the Option may be earlier terminated as provided in the Plan or in Section
1.7 or Section 5 hereof.
3. VESTING.
-------
The Option shall vest, and may be exercised, with respect to the Shares, on
or after the dates set forth above, subject to earlier termination of the Option
as provided in Section 1.7 and Section 5 hereof or in the Plan. The right to
purchase the Shares as they become vested shall be cumulative and shall continue
during the Exercise Term unless sooner terminated as provided herein.
4. MANNER OF EXERCISE AND PAYMENT.
----------------------------------
4.1 To exercise the Option, the Optionee must deliver a completed copy
of the OPTION EXERCISE FORM, attached hereto as EXHIBIT A, to the address
indicated on such Form or such other address designated by the Company from time
2001 STOCK OPTION PLAN
2
to time. The Option may be exercised in whole or in part with respect to the
vested Shares; provided, however, the Committee may establish a minimum number
of Shares (e.g., 100) for which an Option may be exercised at a particular time.
Within thirty (30) days of delivery of the Option Exercise Form, the Company
shall deliver certificates evidencing the Shares to the Optionee, duly endorsed
for transfer to the Optionee, free and clear of all liens, security interests,
pledges or other claims or charges. Contemporaneously with the delivery of the
Option Exercise Form, Optionee shall tender the Option Exercise Price to the
Company, by cash, check, wire transfer or such other method of payment (e.g.,
delivery or attestation of Shares already owned) as may be acceptable to the
Committee pursuant to the Plan.
4.2 The Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to any Shares subject to the Option
until (i) the Option shall have been exercised pursuant to the terms of this
Agreement and the Optionee shall have paid the full purchase price for the
number of Shares in respect of which the Option was exercised, (ii) the Company
shall have issued and delivered the Shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company, whereupon the Optionee shall have full voting and other
ownership rights with respect to such Shares.
5. TERMINATION OF EMPLOYMENT.
----------------------------
5.1 Termination of Employment Due to Death. In the event of the death
---------------------------------------
of the Optionee, who at the time of his or her death was an Employee or
Consultant and who had been in Continuous Status as an Employee since the date
of the grant of the option, any vested Option shall terminate on the earlier of
(i) six (6) months after the date of the Optionee's death, or (ii) the
expiration date otherwise provided in this Agreement. Under these
circumstances, the Option will be exercisable at any time prior to such
termination by the Optionee's estate, or by such person or persons who have
acquired the right to exercise the Option by bequest or by inheritance or by
reason of the death of the Optionee. Any nonvested Option terminates immediately
upon the death of the Optionee.
5.2 Termination of Employment Due to Disability. If an Optionee's
-------------------------------------------
status as an Employee or Consultant is terminated at any time during the Option
period by reason of a disability (within the meaning of Section 22(e)(3) of the
Code) and if the Optionee had been in Continuous Status as an Employee at all
times since the date of grant of the Option, any vested Option shall terminate
on the earlier of (i) six (6) months after the date of termination of his or
her status as an Employee or Consultant, or (ii) the expiration date otherwise
provided in the Option agreement. Any nonvested Option terminates immediately
upon termination of the Optionee's status as an Employee or Consultant.
5.3 Termination of Employment for Other Reasons. If an Optionee's
------------------------------------------------
status as an Employee is terminated by the Optionee at any time after the grant
of an Option for any reason other than death or disability, as provided in
Sections 5.1 and 5.2, and not for "cause" as provided below, then any vested
Option terminates on the earlier of (i) three (3) months after the date of
termination of his or her status as an Employee or Consultant, or (ii) the
expiration date otherwise provided in the Option agreement. Any nonvested
Options are terminated immediately upon termination of Optionee's status as an
Employee or Consultant. If the Optionee's status as an Employee is terminated
for "cause" (such termination being referred to as a "Termination for Cause") at
2001 STOCK OPTION PLAN
3
any time by the Company after the grant of an Option by the Company, then the
Option terminates on the date of termination of Optionee's status as an
Employee. For purposes of this Section 5.3, Termination for Cause shall mean a
termination due to objective evidence of any of the following: (i) conviction
of a felony; (ii) illegal conduct that is injurious to the Company; (iii)
willful or gross misconduct in carrying out duties; (iv) material dishonesty
related to employment; or (v) fraud.
5.4 Employment by Subsidiary. For purposes of this Section and Section
------------------------
8, employment with the Company includes employment with any Parent or Subsidiary
of the Company and service as a Director of the Company or any Parent or
Subsidiary shall be considered employment with the Company. A change of
employment between the Company and any Parent or Subsidiary (or between
Subsidiaries or between a Subsidiary and a Parent) is not a termination of
employment under this Agreement.
6. TRANSFERABILITY.
---------------
Except as provided by the following sentence, the Option shall not be
transferable other than by will or by the laws of descent and distribution. For
a period of [number] months following the Date of Grant, the Option may be
transferred [in whole or in part] [to the extent of [number] shares] to the
following persons: [list names of persons]; but to no other person. During the
lifetime of the Optionee, the Option shall be exercisable only by the Optionee
or a transferee permitted by the preceding sentence. Optionee hereby represents
and covenants that any transfer of the Option shall be to a "family member" as
that term is defined by the General Instructions to Form S-8, through a gift or
a domestic relations order. Optionee shall provide the Company with notice of
any such transfer prior to the date [number] months following the Date of Grant
and shall further provide to the Company any further documentation with respect
to the transfer that the Company reasonably requests.
7. RESTRICTIONS ON THE OPTIONS; RESTRICTIONS ON THE SHARES.
--------------------------------------------------------------
The Option may not be exercised at any time unless, in the opinion of
counsel for the Company, the issuance and sale of the Shares issued upon such
exercise is exempt from registration under the Securities Act of 1933, as
amended, or any other applicable federal or state securities law, rule or
regulation, or the Shares have been duly registered under such laws. The
Company shall not be required to register the Shares issuable upon the exercise
of the Option under any such laws. Unless the Shares have been registered under
all applicable laws, the Optionee shall represent, warrant and agree, as a
condition to the exercise of the Option, that the Shares are being purchased for
investment only and without a view to any sale or distribution of such Shares
and that such Shares shall not be transferred or disposed of in any manner
without registration under such laws, unless it is the opinion of counsel for
the Company that such a disposition is exempt from such registration. The
Optionee acknowledges that an appropriate legend, in such form as the Company
shall determine, giving notice of the foregoing restrictions shall appear
conspicuously on all certificates evidencing the Shares issued upon the exercise
of the Option.
The Optionee also acknowledges and agrees that, in connection with any
public offering of the Company's stock, upon request of the Company or the
underwriters managing any underwritten public offering of the Company's stock
and making such request with the approval of the Company's Board of Directors,
not to sell, make any short sale of, loan, grant any option for the purchase of,
2001 STOCK OPTION PLAN
4
or otherwise dispose of any of his Shares without the prior written consent of
the Company or such underwriters, as the case may be, from the effective date of
such registration for so long as the Company or the underwriters may specify,
but in any event not to exceed 180 days.
8. NO RIGHT TO CONTINUED EMPLOYMENT.
------------------------------------
Nothing in this Agreement or the Plan shall be interpreted or construed to
confer upon the Optionee any right with respect to continuance of employment by
the Company or any Parent or Subsidiary, nor shall this Agreement or the Plan
interfere in any way with the right of the Company or a Parent or Subsidiary to
terminate the Optionee's employment at any time.
9. ADJUSTMENTS UPON CERTAIN EVENTS.
----------------------------------
In the event of a change in capitalization, such as a stock split, the
Committee shall make appropriate adjustments to the number and class of Shares
or other stock or securities subject to the Option and the purchase price for
such Shares or other stock or securities. The Committee's adjustment shall be
made in accordance with the provisions of Section 6(j) of the Plan and shall be
effective and final, binding and conclusive for all purposes of the Plan and
this Agreement.
Subject to Section 6(l) of the Plan, in the event of a liquidation or
dissolution, any unexercised options will terminate.
Subject to Section 6(m) of the Plan, upon a merger, consolidation,
separation, reorganization or other business combination involving the Company,
the Option shall be assumed or replaced with a substitute equivalent option,
under the Plan or any successor plan (whether created by the Company or its
acquirer).
10. WITHHOLDINGS OF TAXES.
-----------------------
The Company shall have the right to deduct from any distribution of cash to
the Optionee an amount equal to the federal, state and local income taxes and
other amounts as may be required by law to be withheld (the "Withholdings
Taxes") with respect to the Option. If the Optionee is entitled to receive
Shares upon exercise of the Option, the Optionee shall pay the Withholdings
Taxes (if any) to the Company in cash prior to the issuance of such Shares. In
satisfaction of the Withholdings Taxes, the Optionee may make a written election
(the "Tax Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the Shares issuable to him or her upon
exercise of the Option, having an aggregate Fair Market Value equal to the
Withholdings Taxes, provided that, if the Optionee may be subject to liability
under Section 16(b) of the Exchange Act, the election must comply with the
requirements applicable to Share transactions by such Optionees.
11. MODIFICATION OF AGREEMENT.
---------------------------
This Agreement may be modified, amended, suspended or terminated, and any
terms or conditions may be waived, only by a written instrument executed by the
parties hereto.
2001 STOCK OPTION PLAN
5
12. SEVERABILITY.
------------
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such Holdings and shall
continue in full force in accordance with their terms.
13. GOVERNING LAW.
--------------
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Nevada without giving
effect to the conflicts of laws principles thereof.
14. SUCCESSORS IN INTEREST.
------------------------
This Agreement shall be binding upon, and inure to the benefit of, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Optionee's heirs and legal
representatives. All obligations imposed upon the Optionee and all rights
granted to the Company under this Agreement shall be final, binding and
conclusive upon the Optionee's heirs, executors, administrators and successors.
15. RESOLUTION OF DISPUTES.
------------------------
Any dispute or disagreement which may arise under, or as a result of, or in
any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Board. Any determination made hereunder
shall be final, binding and conclusive on the Optionee and the Company for all
purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2001 STOCK OPTION PLAN
6
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
KOALA INTERNATIONAL WIRELESS INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
By signing below, Optionee hereby accepts the Option subject to all its
terms and provisions and agrees to be bound by the terms and provisions of the
Plan. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors of the Company, and of
the Committee responsible for administration of the Plan, upon any questions
arising under the Plan. Optionee authorizes the Company to withhold, in
accordance with applicable law, from any compensation payable to him or her, any
taxes required to be withheld by federal, state or local law as a result of the
grant, existence or exercise of the Option or subsequent sale of the Shares.
OPTIONEE
Signature: ----------------------------
Name: [[ Name ]]
[EXHIBIT FOLLOWS]
2001 STOCK OPTION PLAN
7
EXHIBIT A
---------
OPTION EXERCISE FORM
--------------------
I, _____________________________, do hereby exercise the Option with a Date
of Grant of ___________________, ______ granted to me pursuant to the Option
Agreement. The Shares being purchased and the Total Option Exercise Price are
set forth below:
Number of Shares: ________________ Shares
Option Exercise Price Per Share x $____________ per Share
Total Option Exercise Price: = $____________
The Total Option Exercise Price is included with this Form.
____________________________________ Date: ___________________
Signature
Send or deliver this Form with an original signature to
Koala International Wireless Inc.
Attn: President
Suite #676
141-757 West Hastings Street
Vancouver, BC. V6C 1A1
CANADA
2001 STOCK OPTION PLAN
1
EXHIBIT 23.1
------------
[ Manning Elliott Letterhead ]
Independent Accountants' Consent
The Board of Directors
Koala International Wireless Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Koala International Wireless Inc. of our auditors' report dated
February 20, 2001, on the balance sheets of Koala International Wireless Inc.
(formerly Kettle River Group Inc.) as of December 31, 2000 and 1999 and the
related statements of operations, stockholders' equity (deficit) and cash flows
for the period from August 18, 1999 (date of inception) to December 31, 2000,
the year ended December 31, 2000, and the period from August 18, 1999 (date of
inception) to December 31, 1999, which report appears in the registration
statement on Form 10-SB filed on March 22, 2001.
"Manning Elliott"
Chartered Accountants
Vancouver, Canada
February 1, 2002
EXHIBIT 23.2
------------
[ Pannell Kerr Forster Letterhead ]
Independent Accountants' Consent
The Board of Directors
Koala International Wireless Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Koala International Wireless Inc. of our auditors' report dated
December 24, 2001, on the balance sheets of Koala International Wireless Inc.
(formerly Kettle River Group Inc.) as at September 30, 2001 and the statement of
operations, changes in stockholders' deficit and cash flows for the nine months
then ended and the cumulative totals for the development stage operations from
August 18, 1999 (inception) through September 30, 2001. The financial statements
of the Company from August 18, 1999 (inception) through December 31, 2000 were
audited by other auditors whose report dated February 20, 2001 expressed an
unqualified opinion on those statements. Our opinion insofar as it relates to
the cumulative totals for development stage operations from August 18, 1999
(inception) through December 31, 2000 is based solely on the report of other
auditors.
"Pannell Kerr Forster"
Chartered Accountants
Vancouver, Canada
February 1, 2002