NextWave Wireless LLC Stock Option Agreement Manchester Financial Group, LP
Exhibit
10.4
Manchester
Financial Group, XX
Xxxxx
Of Option.
| 1. |
Option.
On the terms and conditions set forth in this Agreement and the Notice
of
Stock Option Grant referencing this Agreement (the “Notice”), NextWave
Wireless LLC (the “Company”) grants to the optionee on the Date of Grant
an option to purchase at the exercise price a number of Units, consisting
of limited liability company interests of the Company. The Notice,
together with this Agreement, shall be a separate non-statutory option
(i.e., an option that isn’t described in Sections 422(b) or 423(b) of the
Internal Revenue Code).
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| 2. |
Duration.
This
Agreement shall apply to this option and to the Units acquired hereunder
until all Units subject to this option have been
exercised.
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Right
To Exercise.
| 3. |
Exercisability.
This
option is fully exercisable to purchase Units as of the Date of Grant.
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No
Transfer Or Assignment Of Option.
| 4. |
Transferability.
Subject to the terms of the Amended and Restated Limited Liability
Company
Agreement of NextWave Wireless LLC, dated as of April 13, 2005 (the
“LLC
Agreement”), or the then applicable organizational document of the
Company:
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This
option and the rights and privileges conferred hereby shall be exercisable
only
by the optionee.
Except
as permitted pursuant to the LLC Agreement, neither this option, the rights
and
privileges conferred hereby nor the Units acquired under this Agreement, may
be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by an optionee and any such purported assignment, alienation, pledge,
attachment, sale, transfer or encumbrance shall be void and unenforceable
against the Company or any Affiliate.
Exercise
Procedures.
| 5. |
Withholding
Requirements. The Company may withhold any applicable tax (or other
governmental obligation) as a result of the exercise of this option,
as a
condition to the exercise of this option, and the optionee shall make
arrangements satisfactory to the Company to enable it to satisfy all
such
withholding requirements. The optionee shall also make arrangements
satisfactory to the Company to enable it to satisfy any withholding
requirements that may arise in connection with the vesting or disposition
of Units purchased by exercising this
option.
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| 6. |
No
Assurances of Tax Consequences. Optionee
shall consult with its own tax counsel regarding tax treatment of this
option, and the Company provides no assurances regarding such treatment.
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Payment
For Units.
| 7. |
Wire
Transfer or Check.
All
or part of the Exercise Price may be paid in U.S. Dollars by wire transfer
or check.
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Term
And Expiration.
| 8. |
Basic
Term.
This
option shall expire on the expiration date set forth in the
Notice.
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Legality
Of Initial Issuance.
| 9. |
No
Units shall be issued upon the exercise of this option unless and until
the Company has determined that the Company and the optionee have taken
any actions required to register the Units under the Securities Act
or to
perfect an exemption from the registration requirements thereof; any
applicable listing requirement of any stock exchange or other securities
market on which Stock is listed has been satisfied; and any other
applicable provision of state or federal law has been satisfied.
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Registration
Rights.
| 10. |
The
Company may, but shall not be obligated to, register or qualify the
sale
of Units under the Securities Act or any other applicable law. The
Company
shall not be obligated to take any affirmative action in order to cause
the sale of Units under this Agreement to comply with any
law.
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Restrictions
On Transfer.
| 11. |
Securities
Law Restrictions. Regardless of whether the offering and sale of Units
under the Plan have been registered under the Securities Act or have
been
registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge
or
other transfer of such Units (including the placement of appropriate
legends on stock certificates or the imposition of stop-transfer
instructions) if, in the judgment of the Company, such restrictions
are
necessary or desirable in order to achieve compliance with the Securities
Act or the securities laws of any state or any other
law.
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| 12. |
LLC
Agreement Restrictions. Upon exercise of the option, the optionee agrees
that it shall hold the Units subject to the terms and conditions of
the
LLC Agreement (or the then applicable organizational document of the
Company), including without limitation the restrictions on transferability
set forth therein.
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| 13. |
Undertaking.
The optionee agrees to take whatever additional action and execute
whatever additional documents the Company may deem necessary or advisable
to carry out or effect one or more of the obligations or restrictions
imposed on either the optionee or upon the Restricted Units pursuant
to
the provisions of this Agreement.
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| 14. |
Investment
Intent. The optionee represents and agrees that as of the Date of Grant,
the Units to be acquired upon exercising this option will be acquired
for
investment, and not with a view to the sale or distribution thereof.
If
the sale of Units is not registered under the Securities Act but an
exemption is available which requires an investment representation
or
other representation, the optionee shall represent and agree at the
time
of exercise that the Units being acquired upon exercising this option
are
being acquired for investment, and not with a view to the sale or
distribution thereof, and shall make such other representations as
are
deemed necessary or appropriate by the Company and its
counsel.
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| 15. |
Legends.
All certificates evidencing Units purchased under this Agreement shall
bear the following legends:
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“The
Units represented hereby may not be sold, assigned, transferred, encumbered
or
in any manner disposed of, except in compliance with the terms of a written
agreement between the company and the registered holder of the shares (or the
predecessor in interest to the Units). Such agreement grants to the Company
certain repurchase rights. The Secretary of the Company will upon written
request furnish a copy of such agreement to the holder hereof without
charge.”
“The
Units represented hereby have not been registered under the Securities Act
of
1933, as amended, and may not be sold, pledged, or otherwise transferred without
an effective registration thereof under such act or an opinion of counsel,
satisfactory to the Company and its counsel, that such registration is not
required.”
“The
Units represented by this certificate are subject to certain restrictions on
transfer and conditions set forth in the Amended And Restated Limited Liability
Company Agreement, dated as of April 13, 2005, by and among the members of
NextWave Wireless LLC. A copy of such agreement may be obtained from NextWave
Wireless at its principal executive offices. Any transferee of the interests
represented by this certificate shall be deemed to agree to be bound by the
terms of the agreement.”
| 16. |
Removal
of Legends. If, in the opinion of the Company, any legend placed on
a
certificate representing Units sold under this Agreement is no longer
required, the holder of such certificate shall be entitled to exchange
such certificate for a certificate representing the same number of
Units
but without such legend.
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| 17. |
Administration.
Any determination by the Company in connection with any of the matters
set
forth in this Section shall be conclusive and binding on the optionee
and
all other persons.
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Adjustment
Of Units.
| 18. |
In
the event of a subdivision of the outstanding Units, a declaration
of a
dividend payable in Units, a declaration of an extraordinary dividend
payable in a form other than Units in an amount that has a material
effect
on the Fair Market Value of the Units, a combination or consolidation
of
the outstanding Units into a lesser number of Units, a recapitalization,
a
spin-off, a reclassification, or a change in corporate structure or
a
similar occurrence that results in a change in the Units, the terms
of
this option (including, without limitation, the number and kind of
Units
subject to this option and the Exercise Price) shall be adjusted
correspondingly. In the event that the Company is a party to a merger
or
consolidation, this option shall be subject to the agreement of merger
or
consolidation.
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Miscellaneous
Provisions.
| 19. |
Rights
as a Shareholder. Neither the optionee nor the optionee’s representative
shall have any rights as an equity owner with respect to any Units
subject
to this option until the optionee or the optionee’s representative becomes
entitled to receive such Units by (i) filing a notice of exercise,
and
(ii) paying the exercise price as provided in this
Agreement.
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| 20. |
Notification.
Any notice required by this Agreement shall be given in writing and
shall
be deemed effective upon personal delivery or upon deposit with the
United
States Postal Service, by registered or certified mail, with postage
and
fees prepaid. A notice shall be addressed to the Company at its principal
executive office and to the optionee at the address that he or she
most
recently provided to the Company.
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| 21. |
Entire
Agreement. The Notice and this Agreement constitute the entire contract
between the parties hereto with regard to the subject matter hereof.
They
supersede any other agreements, representations or understandings (whether
oral or written and whether express or implied) which relate to the
subject matter hereof.
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| 22. |
Successors
and Assigns. The provisions of this Agreement shall inure to the benefit
of, and be binding upon, the Company and its successors and assigns
and
upon the optionee, the optionee’s permitted assigns and the legal
representatives, whether or not any such person shall have become a
party
to this Agreement and have agreed in writing to be join herein and
be
bound by the terms hereof.
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| 23. |
Choice
of Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, as such laws are applied to
contracts entered into and performed in such
State.
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Definitions.
“Date
of Grant” shall mean the date specified in the Notice.
“Exercise
Price” shall mean the amount for which one Share may be purchased upon exercise
of this option, as specified in the Notice.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Unit”
shall mean one common unit of the Company.
“Subsidiary”
shall mean any entity that the Company owns fifty percent (50%) or more of
the
total outstanding equity interests.
“Transferee”
shall mean any person to whom the optionee has directly or indirectly
transferred any Unit acquired under this Agreement.
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