AIRGATE PCS, INC.
OPTION AGREEMENT
THIS OPTION AGREEMENT is entered into by and between AIRGATE PCS, INC. (the
"Company") and _____ (the "Optionee") in accordance with the terms and
conditions of the 1999 Stock Option Plan adopted by the Company (the "Plan"), a
copy of which is on file at the principal office of the Company.
The Company and the Optionee hereby agree as follows:
1. OPTION OF SHARES. The Optionee shall have the right from the date hereof
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through the term hereof to purchase ___ shares of the $.01 par value common
stock of the Company (such ___ shares, as may be adjusted in accordance with
this Option Agreement, hereinafter referred to as the "Optioned Shares" and this
option hereinafter referred to as the "Option").
2. OPTION PRICE. The price per share for each of the Optioned Shares to be
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paid by the Optionee shall be ____ per share (hereinafter referred to as the
"Option Price"), such Option Price having been determined in accordance with the
Plan.
3. EXERCISE AND TERM OF OPTION. This Option may be exercised only by
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delivery by the Optionee to the Company or the Company's delegate of written
notice of exercise executed by the Optionee on the exercise form set forth as
Exhibit A attached hereto and made a part hereof, which exercise form shall
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identify this Option, together with the number of shares with respect to which
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the Optionee is exercising the Option. The Optionee may exercise this Option
for less than the full number of the Optioned Shares, but such exercise shall
not be made for less than twenty-five percent (25%) of the then-exercisable
number of Optioned Shares. Subject to the other restrictions on exercisability
set forth herein and in the Plan, the unexercised portion of the Optioned Shares
may be exercised at a later date by the Optionee; the twenty-five percent (25%)
requirement set forth above shall not apply to any exercise of this Option in
which all of the remaining Optioned Shares which are then-exercisable are
exercised. Notwithstanding any provisions herein to the contrary, this Option
shall not be exercisable either in whole or in part after whichever of the
following first occurs:
(i) Month ___, 20__; (10 years minus one day from date of Board
Resolution - if resolution list of Optionees is adopted on January 21, 2000,
then this date is January 20, 2010.)
(ii) if the Optionee was not, at all times during the period beginning
on the date hereof and ending on the date three (3) months before the proposed
date of exercise of this Option, in Continuous Status as an Employee, except if
such cessation of Continuous Status as an Employee was caused by the death of
the Optionee or occurred before the Option otherwise expired, in which case such
period shall end on the date six (6) months following the date of death, and
except if such cessation of Continuous Status as an Employee was as a result of
the total and permanent disability of the Optionee as defined in the Plan, in
which case, such period shall end on the date twelve (12) months from the date
of Optionee's cessation in Continuous Status as an Employee be reason of such
disability;
(iii) the date upon which the stockholders of the Company have voted to
liquidate or dissolve the Company; or
(iv) to the extent exercisability of the Option is limited in accordance
with the conditions set forth in Exhibit B attached hereto and made a part
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hereof.
4. OPTION NON-TRANSFERABLE. During the lifetime of the Optionee, this
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Option shall be exercisable only by the Optionee and shall not be assignable or
transferable by the Optionee and, subject to Paragraph 5 below, no other person
shall acquire any rights in this Option.
5. DEATH OF OPTIONEE AND TRANSFER OF OPTION. In the event of the death of
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the Optionee, the unexercised portion of this Option owned by the deceased
Optionee shall be exercisable to the extent provided in Paragraph 3 by the
executors or administrators of the estate of the Optionee or by any person or
persons who shall have acquired the Option directly from the Optionee by bequest
or inheritance. Such exercise shall be effected in accordance with the terms
set forth in Paragraph 3 as if such executor, administrator or legatee was the
Optionee herein. For purposes of Paragraph 3(iv), above, the determination of
the vested percentage shall be made on the earlier of the date of cessation of
Continuous Status as an Employee or the date of death, as applicable. This
Option shall not be transferable by the Optionee otherwise than by will or by
the laws of descent and distribution.
6. MEDIUM AND TIME OF PAYMENT. The Option Price shall be payable by the
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Optionee (or his successors in accordance with Paragraph 5 above) upon exercise
of this Option in cash. Without limiting the foregoing, if the Optionee is an
officer or director of the Company within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, he may in addition be allowed to
pay all or part of the purchase price with Shares. Shares used by officers or
directors to pay the exercise price shall be valued at their fair market value
on the exercise date.
7. DELIVERY OF STOCK CERTIFICATES. Except as provided in Exhibit B or
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Exhibit C, as promptly as practicable after the date of exercise of this Option
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and the receipt by the Company of full payment therefor, the Company shall
deliver to the Optionee a stock certificate representing the stock of the
Company so purchased.
8. STATUS OF OPTION. This Option is intended to be an Incentive Stock
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Option.
9. OTHER TERMS AND CONDITIONS. In addition to the terms and conditions set
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forth herein, this Option is subject to and governed by the other terms and
conditions set forth in the Plan, which other terms and conditions are hereby
incorporated by reference. In the case of express conflict, the provisions of
this Option Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement
as of this __st day of Month, 20__. (Date of this Option Agreement determined
by date created after Board Resolution approves Optionee.)
COMPANY:
AIRGATE PCS, INC.
By:_____________________________________
Title: President and CEO
[CORPORATE SEAL]
OPTIONEE:
_______________________________________
Name: ___________ (Type in full name of Optionee here as it appears in first
paragraph of agreement.)
EXHIBIT A
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NOTICE OF EXERCISE
The undersigned Optionee hereby exercises his option to purchase __________
shares subject to the Option Agreement between AIRGATE PCS, INC. and the
undersigned Optionee dated ____________________. The undersigned Optionee
hereby delivers, together with this written statement of exercise, payment of
the full Option Price for the exercised shares.
This _____ day of _______________, _____.
OPTIONEE:
____________________________________
AIRGATE PCS, INC. hereby acknowledges receipt of the above notice of exercise
and payment of the Option Price, this _____ day of _______________, _____.
AIRGATE PCS, INC.
By:_________________________________
Title:________________________________
[CORPORATE SEAL]
EXHIBIT B
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"EXHIBIT 2"
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CONDITIONS TO EXERCISE OF STOCK OPTIONS
NUMBER OF FULL MONTHS OF PERCENTAGE OF OPTIONED
CONTINUOUS STATUS AS AN SHARES WHICH OPTIONEE
EMPLOYEE BY OPTIONEE HAS A VESTED RIGHT TO ACQUIRE
SINCE DATE OF HIRE:
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Less than 12 25%
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12 - 14 25%
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15 - 17 30%
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18 - 20 35%
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21 - 23 40%
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24 - 26 45%
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27 - 29 50%
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30 - 32 55%
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33 - 35 60%
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36 - 38 65%
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39 - 41 70%
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42 - 44 75%
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45 - 47 80%
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48 - 50 85%
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51 - 53 90%
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54 - 56 95%
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57 or more 100%
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1. For purposes of computing the number of Optioned Shares which
Optionee has a right to acquire by exercise of this Option in accordance with
the vesting schedule set forth above, fractional shares shall be disregarded and
the next lower whole number of shares shall be used, rounding all fractions
downward.
2. Notwithstanding the foregoing vesting schedule, if Optionee's
Continuous Status as an Employee has not terminated at the time of a Change of
Control (as defined below), the exercise of the Option shall be vested to the
same extent as if Optionee were credited with additional full months of
Continuous Status as an Employee equal to one-half (rounded to the next lowest
integer) of the number of months remaining until Optionee is 100% vested. For
example, if a Change of Control occurs after the Offering at a time Optionee has
24 such months of such Continuous Status, then he will be deemed to have 40
months of such Continuous Status [i.e., 24 + 1/2 (57 - 24) = 40.5, or 40]. For
purposes of this paragraph, a "Change of Control" shall be deemed to have
occurred if, after the Offering, there is a Control Transaction (as defined
below) and any entity, person or Group (as defined below) other than the
Company or its Parent or Subsidiary or their officers, directors or shareholders
as of the date hereof acquires shares of the Company or its Parent in a
transaction (or series of transactions within a consecutive twelve (12) month
period) that result in such entity, person or Group directly or indirectly
owning beneficially fifty-one percent (51%) or more of the total number of
outstanding shares entitled to vote to elect members of the Board of Directors
(without distinction as to class) of the Company or its Parent.
As used herein, "Control Transaction" shall mean (i) any tender offer for
or acquisition of capital stock of the Company or and its Parent or (ii) any
merger, consolidation, or sale of all or substantially all of the assets of the
Company or its Parent which has been approved by the shareholders thereof, but
expressly excludes any public offering of capital stock by the Company or its
Parent. As used herein, "Group" shall mean persons who act in concert as
described in Sections 13(d)(3) and/or 14(d)(2) of the Securities Exchange Act of
1934, as amended.
3. Notwithstanding the foregoing, Optionee may not exercise this
Option as to any Optioned Shares prior to April 15, 2000 (unless Optionee's
employment is terminated involuntarily by the Company).
EXHIBIT B
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"EXHIBIT 3"
CONDITIONS TO EXERCISE OF STOCK OPTIONS
NUMBER OF FULL MONTHS OF PERCENTAGE OF OPTIONED
CONTINUOUS STATUS AS AN SHARES WHICH OPTIONEE
EMPLOYEE BY OPTIONEE HAS A VESTED RIGHT TO ACQUIRE
SINCE DATE OF HIRE:
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Less than 12 25%
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12 - 14 25%
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15 - 17 30%
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18 - 20 35%
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21 - 23 40%
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24 - 26 45%
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27 - 29 50%
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30 - 32 55%
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33 - 35 60%
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36 - 38 65%
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39 - 41 70%
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42 - 44 75%
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45 - 47 80%
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48 - 50 85%
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51 - 53 90%
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54 - 56 95%
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57 or more 100%
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1. For purposes of computing the number of Optioned Shares which
Optionee has a right to acquire by exercise of this Option in accordance with
the vesting schedule set forth above, fractional shares shall be disregarded and
the next lower whole number of shares shall be used, rounding all fractions
downward.
2. Notwithstanding the foregoing vesting schedule, if Optionee's
Continuous Status as an Employee has not terminated at the time of a Change of
Control (as defined below), the exercise of the Option shall be vested to the
same extent as if Optionee were credited with additional full months of
Continuous Status as an Employee equal to one-half (rounded to the next lowest
integer) of the number of months remaining until Optionee is 100% vested. For
example, if a Change of Control occurs after the Offering at a time Optionee has
24 such months of such Continuous Status, then he will be deemed to have 40
months of such Continuous Status [i.e., 24 + 1/2 (57 - 24) = 40.5, or 40]. For
purposes of this paragraph, a "Change of Control" shall be deemed to have
occurred if, after the Offering, there is a Control Transaction (as defined
below) and any entity, person or Group (as defined below) other than the
Company or its Parent or Subsidiary or their officers, directors or shareholders
as of the date hereof acquires shares of the Company or its Parent in a
transaction (or series of transactions within a consecutive twelve (12) month
period) that result in such entity, person or Group directly or indirectly
owning beneficially fifty-one percent (51%) or more of the total number of
outstanding shares entitled to vote to elect members of the Board of Directors
(without distinction as to class) of the Company or its Parent.
As used herein, "Control Transaction" shall mean (i) any tender offer for
or acquisition of capital stock of the Company or and its Parent or (ii) any
merger, consolidation, or sale of all or substantially all of the assets of the
Company or its Parent which has been approved by the shareholders thereof, but
expressly excludes any public offering of capital stock by the Company or its
Parent. As used herein, "Group" shall mean persons who act in concert as
described in Sections 13(d)(3) and/or 14(d)(2) of the Securities Exchange Act of
1934, as amended.
EXHIBIT B
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"EXHIBIT 4"
CONDITIONS TO EXERCISE OF STOCK OPTIONS
NUMBER OF FULL MONTHS OF PERCENTAGE OF OPTIONED
CONTINUOUS STATUS AS AN SHARES WHICH OPTIONEE
EMPLOYEE BY OPTIONEE HAS A VESTED RIGHT TO ACQUIRE
SINCE DATE OF HIRE:
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Less than 24* 0%
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24 - 26 25.00%
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27 - 29 31.25%
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30 - 32 37.50%
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33 - 35 43.75%
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36 - 38 50.00%
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39 - 41 56.25%
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42 - 44 62.50%
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45 - 47 68.75%
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48 - 50 75.00%
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51 - 53 81.25%
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54 - 56 87.50%
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57 - 59 93.75%
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60 or more 100.00%
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* Before July 22, 2000
1. The individuals governed by this "Exhibit 4" were hired for purposes
hereof on July 22, 1998.
2. For purposes of computing the number of Optioned Shares which
Optionee has a right to acquire by exercise of this Option in accordance with
the vesting schedule set forth above, fractional shares shall be disregarded and
the next lower whole number of shares shall be used, rounding all fractions
downward.
3. Notwithstanding the foregoing vesting schedule, if Optionee's
Continuous Status as an Employee has not terminated at the time of a Change of
Control (as defined below), the exercise of the Option shall be vested to the
same extent as if Optionee were credited with additional full months of
Continuous Status as an Employee equal to one-half (rounded to the next lowest
integer) of the number of months remaining until Optionee is 100% vested. For
example, if a Change of Control occurs after the Offering at a time Optionee has
24 such months of such Continuous Status, then he will be deemed to have 42
months of such Continuous Status [i.e., 24 + 1/2 (60 - 24) = 42]. For purposes
of this paragraph, a "Change of Control" shall be deemed to have occurred if,
after the Offering, there is a Control Transaction (as defined below) and any
entity, person or Group (as defined below) other than the Company or its Parent
or Subsidiary or their officers, directors or shareholders as of the date hereof
acquires shares of the Company or its Parent in a transaction (or series of
transactions within a consecutive twelve (12) month period) that result in such
entity, person or Group directly or indirectly owning beneficially fifty-one
percent (51%) or more of the total number of outstanding shares entitled to vote
to elect members of the Board of Directors (without distinction as to class) of
the Company or its Parent.
As used herein, "Control Transaction" shall mean (i) any tender offer for
or acquisition of capital stock of the Company or and its Parent or (ii) any
merger, consolidation, or sale of all or substantially all of the assets of the
Company or its Parent which has been approved by the shareholders thereof, but
expressly excludes any public offering of capital stock by the Company or its
Parent. As used herein, "Group" shall mean persons who act in concert as
described in Sections 13(d)(3) and/or 14(d)(2) of the Securities Exchange Act of
1934, as amended.
4. Notwithstanding the foregoing vesting schedule, if Optionee is
involuntarily terminated by the Company without Cause, Optionee shall be 100%
vested in all Optioned Shares effective as of date of such termination. For
purposes of this paragraph 4, "Cause" shall mean (i) breach of the stock
transfer restrictions set forth in Section 13 of Addendum II and Addendum III to
the Management Agreement between the Company and SprintCom, Inc. dated July 22,
1998 (the "Management Agreement"), (ii) breach of the primary business
restriction set forth in Section 14(a) of Addendum II of the Management
Agreement, or (iii) breach of any covenant not to compete contained in the
Management Agreement or any employment agreement now or hereafter entered into
between Optionee and the Company.
EXHIBIT C
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NONCOMPETITION AGREEMENT
AGREEMENT entered into as of the ____ day of __________, _____, between
AIRGATE PCS, INC., a Delaware corporation ("Employer"), and
________________________ ("Employee").
Employer is in the business of _________________________________________
(the "Business"). Employee currently is, or at the time of his termination was,
employed by Employer as ________________________________ of Employer (the
"Capacity").
To protect Employer"s legitimate interests, Employer and Employee find it
necessary and appropriate to restrict competition and certain other activities
by Employee, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the issuance of AirGate PCS,
Inc. stock to Employee as compensation, the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and accepted by Employee, Employee agrees with Employer as follows:
1. USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION. During the period
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of two (2) years after Employee's employment has terminated for any reason
whatsoever (or, in the case of trade secrets, for so long as the information in
question remains a trade secret) and during any period Employee is employed by
Employer hereafter, Employee shall not, without the prior written consent of
Employer, directly or indirectly, divulge, disclose or publish to any person or
entity, or reproduce or use in any way, except only as required for the benefit
of Employer, any Confidential Information (as defined herein). Upon Employer's
request and, in any event, upon the termination of Employee's employment with
Employer for any reason whatsoever, Employee shall immediately return any
reproductions of Confidential Information to Employer. For purposes of this
Agreement, "Confidential Information" means any trade secrets and any
information relating to Employer's business that is competitively sensitive and
not generally known by the public, including processes, policies, procedures,
techniques, designs, drawings, know-how, show-how, technical information,
technology, specifications, products, computer programs (including computer
programs developed, improved or modified by Employee for or on behalf of
Employer for use in Employer's business), algorithms, systems, methods of
operation, order entry forms, price lists, customer lists, customer information,
solicitation leads, marketing research data, marketing and advertising materials
and methods and manuals and forms, all of which pertain to the Business.
Confidential Information does not include any information which (i) is available
in published print or otherwise known to the public, unless published or made
known as a result of acts or omissions of Employee, or (ii) is lawfully obtained
by Employee in writing from a third party who did not acquire such confidential
information or trade secret, directly or indirectly, from Employee or Employer.
2. COMPETITION. During the period of eighteen (18) months after
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Employee's employment has terminated for any reason whatsoever and during any
period Employee is employed by Employer hereafter, Employee shall not, directly
or indirectly, for himself or on behalf of or in conjunction with any other
person, firm or entity --
(a) Engage in the Business, in the same or a similar capacity as
Employee has been employed by Employer, anywhere within
______________________________________________________________________
_
__________ (the "Territory"), provided that, if Employee's employment with
Employer is ended, the prohibition of this Section 2(a) applies only to the
locations within such Territory where Employee actually was working during the
six months immediately preceding the time Employee's employment with Employer
ended;
(b) Initiate any action to solicit in competition with the Business of
Employer or to divert or attempt to divert from Employer the Business of any
person, firm or entity for which Employer provided services in connection with
the Business at any time during the period of twenty-four (24) months
immediately preceding the time of such solicitation, diversion or attempt to
divert and with whom Employee had material contact in the course of Employee's
employment with Employer; or
(c) Initiate any action to hire for any other employer any employee of the
Employer or directly or indirectly cause any employee of the Employer to leave
his employment in order to work for another.
Employee acknowledges that Employer has conducted and expects to conduct
its business throughout the Territory and that Employer expects that during the
aforesaid period, Employer will continue to expand its business throughout the
Territory and that this expectation is realistic; that Employee shall be engaged
in Employer's business, in the Capacity, with respect to Employer's activities
throughout the Territory; and that because of Employee's association with
Employer, Employer's business would be seriously and irreparably harmed if
Employee were to compete with Employer in the manner prohibited above.
3. REPURCHASE OPTIONS.
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(a) If Employee breaches his obligations under Section 1 or Section 2
hereof, Employer or AirGate PCS, Inc. shall have the option to repurchase any
and all shares then owned by Employee and acquired by Employee pursuant to the
AIRGATE PCS, INC. 1999 Stock Option Plan (the "Plan") at a purchase price equal
to Employee's Option Price thereunder. Employer or AirGate PCS, Inc. shall
exercise its option by notifying Employee of such exercise in writing, within
ten (10) days of which Employee shall deliver certificates for such shares, duly
endorsed in blank, free and clear of all liens and encumbrances, and Employer or
AirGate PCS, Inc. shall concurrently deliver payment therefor. If Employee
fails to so deliver such certificates, AirGate PCS, Inc. may cancel such shares
of record and deposit payment into escrow, for release to Employee pending
delivery of the endorsed share certificates. Following full satisfaction by
Employee of his obligations pursuant to this Section 3, Employer agrees to
release Employee from his covenants in Section 2(a).
(b) If, after termination of employment, Employee disparages Employer
or any officer, director, shareholder, employee or representative of Employer,
then without regard to whether Employee has breached his obligations under
Section 2 hereof, Employer or AirGate PCS, Inc. shall have the option to
repurchase any and all shares then owned by Employee and acquired by Employee
pursuant to the Plan at the option price and in the same manner as is provided
in Section 3(a); provided, however, the last sentence of Section 3(a) shall not
apply.
4. INJUNCTION. As any breach by Employee of any of the covenants
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contained in this Agreement would result in irreparable injury to Employer, and
as the damages arising out of any such breach would be difficult to ascertain,
Employee agrees that, in addition to all other remedies provided by law or in
equity, Employer shall be entitled to an injunction against any such breach,
whether actual or contemplated.
5. SETOFF. Employer or AirGate PCS, Inc. shall be entitled to set off
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against any compensation, commissions and other payments of any kind owed to
Employee any amounts owing to Employer or AirGate PCS, Inc. as a result of a
breach of this Agreement or otherwise.
6. MODIFICATION. Should any provision of this Agreement be declared
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unenforceable by a court of competent jurisdiction, the parties request that
such court modify such provision in a manner consistent with the intent of this
Agreement so that it shall be enforceable as modified to the greatest extent, in
the largest territory, and for the longest duration as may be permitted by law.
7. SEVERABILITY. If any provision of this Agreement shall for any reason
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be held illegal or unenforceable, such provision shall be deemed severable from
the remaining provisions of this Agreement and shall in no way affect or impair
the validity or enforceability of the remaining provisions of this Agreement.
8. CUMULATIVE RIGHTS. Any rights and remedies of Employer or AirGate
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PCS, Inc. pursuant to this Agreement shall be in addition to and cumulative of,
and shall in no way limit or supersede, any other rights and remedies Employer
or AirGate PCS, Inc. may have under law or in equity or pursuant to any other
agreement with Employee.
9. MISCELLANEOUS. As to the subject matter hereof, this Agreement
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supersedes any and all other agreements, either oral or in writing, between the
parties hereto and constitutes the entire agreement between the parties. Any
modification of this Agreement will be effective only if it is in writing signed
by the party to be charged. Failure or delay of either party to insist upon
compliance with any provision hereof will not operate and is not to be construed
as a waiver or amendment of the provision or the right of the aggrieved party to
insist upon compliance with such provision or to take remedial steps to recover
damages or other relief for noncompliance. Any express waiver of any provision
of this Agreement will not operate and is not to be construed as a waiver of any
subsequent breach, whether occurring under similar or dissimilar circumstances.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their successors, assigns, heirs, executors and personal
representatives, but neither this Agreement nor any rights hereunder shall be
assignable by Employee. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled. The captions
set forth herein are for convenience of reference only and shall not be used in
interpreting this Agreement. "Including" means including without limitation.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Georgia.
EXECUTED as of the date first above written.
EMPLOYEE:
Name:
Address:
EMPLOYER:
AIRGATE PCS, INC.
By:
Name:
Title:
