EXHIBIT 10.32
NONQUALIFIED STOCK OPTION AGREEMENT
May [__], 2002
Re: TSI TELECOMMUNICATION HOLDINGS, INC. (THE
"COMPANY") GRANT OF NONQUALIFIED STOCK OPTION
To the Participant Identified on the Signature Page attached hereto:
The Company is pleased to advise you that its Board of Directors has
granted to you a stock option (an "OPTION"), as provided below, under the TSI
Telecommunication Holdings, Inc. Founders' Stock Option Plan (the "PLAN"), a
copy of which is attached hereto and incorporated herein by reference. Certain
terms used herein are defined in SECTION 17 hereof.
1. OPTION.
(a) TERMS. Your Option is for the purchase of up to the number of Common
Shares written next to your name on the signature page attached hereto (the
"OPTION SHARES") at the price per share written next to your name on the
signature page attached hereto (the "EXERCISE PRICE"), payable upon exercise as
set forth in SECTION 1(b) below. Your Option shall expire at the close of
business ten (10) years from the date of issuance (the "EXPIRATION DATE"),
subject to earlier expiration as provided in SECTION 3(b) below. Your Option is
not intended to be an "incentive stock option" within the meaning of Section 422
of the Code.
(b) PAYMENT OF OPTION PRICE. Subject to SECTION 2 and 3 below, your
Option may be exercised in whole or in part upon payment of an amount (the
"OPTION PRICE") equal to the product of (1) the Exercise Price MULTIPLIED BY
(2) the number of Option Shares to be acquired. Payment of the Option Price
shall be made (i) in cash (including check, bank draft, or money order), (ii) in
the discretion of the Committee, by delivery of a promissory note (if in
accordance with policies approved by the Board), (iii) by delivery of
outstanding shares of Common Stock that, on the date of exercise, have (x) been
owned by you for a minimum of six months and one day and (y) a Fair Market Value
equal to the aggregate exercise price payable with respect to the options'
exercise, (iv) through a "same day sale" commitment from you and a broker-dealer
that is a member of the National Association of Securities Dealers, Inc.
specified by the Committee (the "NASD Dealer") whereby you irrevocably elect to
exercise the Option and to sell a portion of the Option Shares so purchased to
pay for the Option Price and whereby the NASD Dealer irrevocably commits upon
receipt of such Option Shares to forward the Option Price directly to the
Company, (v) through a "margin" commitment from you and an NASD Dealer
reasonably acceptable to the Committee whereby you irrevocably elect to exercise
your Option and to pledge the Option Shares so purchased to the NASD Dealer in a
margin account as
security for a loan from the NASD Dealer in the amount of the Option Price, and
whereby the NASD Dealer irrevocably commits upon receipt of the Option Shares to
forward the Option Price to the Company, or (vi) by any combination of the
foregoing. The methods of payment set forth in clauses (iii) through (v) above
shall apply only if there is a public market for the Common Shares.
2. EXERCISABILITY/VESTING. Your Option may be exercised only to the extent
it has become vested. [_______] Option Shares shall vest and become exercisable
on the date that is one year from the date of this Agreement, and thereafter
[__] Option Shares will become vested on the last day of each three-month period
following the one year anniversary date of this Agreement such that on [______],
200[7](1), the Option will be 100% vested, in each case, however, if and only if
you have been continuously employed by the Company or a Subsidiary from the date
of this Agreement through and including such date. The number of Option Shares
with respect to which your Option may be exercised shall not increase once you
cease to be employed by the Company.
3. EXPIRATION OF OPTION.
(a) NORMAL EXPIRATION. In no event shall any part of your Option be
exercisable after the Expiration Date set forth in SECTION 1(a) above.
(b) EARLY EXPIRATION UPON TERMINATION OF EMPLOYMENT. Any portion of
your Option that was not vested and exercisable on the date your employment with
the Company terminates shall expire and be forfeited without payment of any kind
on such date, and any portion of your Option that was vested and exercisable on
the date your employment with the Company terminates shall also expire and be
forfeited without payment of any kind on such date; PROVIDED that: (i) if you
die or become subject to any Disability, the portion of your Option that is
vested and exercisable shall expire 180 days from the date of your death or
Disability, but in no event after the Expiration Date, (ii) if you retire (with
the approval of the Committee or the Board), the portion of your Option that is
vested and exercisable shall expire 90 days from the date of your retirement,
but in no event after the Expiration Date, (iii) if your employment is
terminated other than for Cause, the portion of your Option that is vested and
exercisable shall expire 90 days from the date of your termination, but in no
event after the Expiration Date, and (iv) if your employment is terminated for
Cause, the portion of your Option, to the extent not theretofore exercised,
shall expire immediately.
4. PROCEDURE FOR EXERCISE. You may exercise all or any portion of your
Option, to the extent it has vested and is outstanding, at any time and from
time to time prior to its expiration, by delivering written notice to the
Company (to the attention of the Company's Secretary) and your written
acknowledgment that you have read and have been afforded an opportunity to ask
questions of management of the Company or management's designee, including but
not limited to the Committee or an officer of the Company designated by the
Committee, regarding all financial and other information provided to you
regarding the
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(1) Options will vest quarterly over a 5 year period.
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Company, together with payment of the Option Price in accordance with the
provisions of SECTION 1(b) above. As a condition to any exercise of your Option,
you shall permit the Company to deliver to you all financial and other
information regarding the Company it believes necessary to enable you to make an
informed investment decision, and you shall make all customary investment
representations which the Company requires.
5. SECURITIES LAWS RESTRICTIONS AND OTHER RESTRICTIONS ON TRANSFER OF
OPTION SHARES. You represent that when you exercise your Option you shall be
purchasing Option Shares for your own account and not on behalf of others. You
understand and acknowledge that federal and state securities laws govern and
restrict your right to offer, sell, or otherwise dispose of any Option Shares
unless your offer, sale, or other disposition thereof is registered under the
Securities Act and state securities laws, or in the opinion of the Company's
counsel, such offer, sale, or other disposition is exempt from registration or
qualification thereunder. You agree that you shall not offer, sell, or otherwise
dispose of any Option Shares in any manner which would: (i) require the Company
to file any registration statement with the Securities and Exchange Commission
(or any similar filing under state law) or to amend or supplement any such
filing or (ii) violate or cause the Company to violate the Securities Act, the
rules and regulations promulgated thereunder, or any other state or federal law.
You further understand that the certificates for any Option Shares you purchase
shall bear such legends as the Company deems necessary or desirable in
connection with the Securities Act or other rules, regulations or laws.
6. NON-TRANSFERABILITY OF OPTION. Your Option is personal to you and is
not transferable by you other than by will or the laws of descent and
distribution. During your lifetime only, you (or your guardian or legal
representative) may exercise your Option. In the event of your death, your
Option may be exercised only (i) by the executor or administrator of your estate
or the person or persons to whom your rights under the Option shall pass by will
or the laws of descent and distribution and (ii) to the extent that you were
entitled hereunder at the date of your death.
7. CONFORMITY WITH PLAN. Your Option is intended to conform in all
respects with, and is subject to all applicable terms, conditions and provisions
of, the Plan (which is incorporated in its entirety herein by reference).
Inconsistencies between this Agreement and the Plan shall be resolved in
accordance with the terms of the Plan. By executing and returning the enclosed
copy of this Agreement, you acknowledge your receipt of this Agreement and the
Plan and agree to be bound by all of the terms of this Agreement and the Plan.
8. RIGHTS OF PARTICIPANTS. Nothing in this Agreement shall interfere with
or limit in any way the right of the Company to terminate your employment at any
time (with or without Cause), nor confer upon you any right to continue in the
employ of the Company for any period of time or to continue your present (or any
other) rate of compensation, and in the event of your termination of employment
(including, but not limited to, termination by the Company without Cause) any
portion of your Option that was not previously exercised shall be forfeited in
accordance with SECTION 3(b) above. Nothing in this Agreement shall confer upon
you any right to be selected again as a Plan participant or to be selected as a
participant or beneficiary of any other Company plan or program, and nothing in
the Plan or this Agreement shall provide for any adjustment to the number of
Option Shares subject to your Option upon the occurrence of subsequent events
except as provided in SECTION 10 below.
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9. WITHHOLDING OF TAXES. (i) The Company shall be entitled, if necessary
or desirable, to withhold from any Participant, from any amounts due and payable
by the Company to such Participant (or secure payment from such Participant in
lieu of withholding), the amount of any withholding or other tax due from the
Company with respect to any shares issuable under the Option, and the Company
may defer the exercise of the Option or the issuance of the Option Shares
thereunder unless indemnified to its satisfaction.
(ii) Notwithstanding any provision of this Option to the contrary, in
connection with the transfer of this Option to a transferee pursuant to
SECTION 12 hereof, the Participant shall remain liable for any withholding
taxes required to be withheld upon exercise of such Option by the transferee.
10. ADJUSTMENTS. In the event of a reorganization, recapitalization, stock
dividend or stock split, or combination or other change in the Common Shares,
the Board or the Committee shall, in order to prevent the dilution or
enlargement of rights under your Option, make such adjustments in the number and
type of shares authorized by the Plan, the number and type of shares covered by
your Option, and the Exercise Price specified herein, in each case as may be
determined by the Board or Committee to be appropriate and equitable.
11. RIGHT TO PURCHASE OPTION SHARES UPON TERMINATION OF EMPLOYMENT. Prior
to a Public Offering or a Sale of the Company, your Option Shares shall be
subject to the Repurchase Option set forth in this SECTION 11.(a) REPURCHASE OF
OPTION SHARES ON TERMINATION. If your employment with the Company terminates
(the "TERMINATION") for any reason, then the Company and/or the Investors shall
have the right to repurchase all or any portion of your Option Shares at a price
equal to the Fair Market Value of such Option Shares.
(b) REPURCHASE PROCEDURE FOR THE COMPANY. The Company may elect
to repurchase all or any portion of your Option Shares (the "AVAILABLE OPTION
SHARES") if your employment with the Company has terminated (the "REPURCHASE
OPTION") by delivery of written notice (a "REPURCHASE NOTICE") to you within 90
days after the date of the Termination for any Option Shares issued 181 days or
more prior to the date of Termination (or in the case of Option Shares issued
180 days or less prior to the date of Termination or issued at any time after
the date of Termination upon exercise of this Option, no earlier than 181 days
and no later than 271 days after the date of the issuance of such Option Shares)
(the "REPURCHASE NOTICE PERIOD"). The Repurchase Notice shall set forth the
amount of Option Shares to be acquired, the aggregate consideration to be paid
for such Option Shares, and the time and place for the closing of the
transaction.
(c) REPURCHASE PROCEDURE FOR THE INVESTORS. If for any reason the
Company does not elect to purchase all of the Available Option Shares, then the
Investors shall be entitled to exercise the Repurchase Option for all or any
portion of the Available Option Shares that were not repurchased by the Company
pursuant to SECTION 11(b) above (the "REMAINING OPTION SHARES"). The Investors
may assign their Repurchase Option to TSI Telecommunication Holdings, LLC. As
soon as practicable after the Company has determined that it will not purchase
all of the Available Option Shares, but in any event within 60 days after the
beginning of the Repurchase Notice Period corresponding to such Available Option
Shares, the Company shall give written notice (the "OPTION NOTICE") to each
Investor setting forth the number of
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Remaining Option Shares and the purchase price for the Remaining Option Shares.
The Investors may elect to purchase all or any portion of the Remaining Option
Shares by giving written notice to the Company within 60 days after the Option
Notice has been delivered to the Investors by the Company. If the Investors
elect to purchase an aggregate amount of Remaining Option Shares in excess of
the amount of Remaining Option Shares specified in the Option Notice, then the
Remaining Option Shares shall be allocated among the Investors based on the
amount of such type or types of Common Shares owned by each Investor on the date
of the Option Notice. Any Investor may condition its election to purchase such
Remaining Option Shares on the election of one or more other Investors to
purchase Remaining Option Shares. As soon as practicable, and in any event
within 10 days after the expiration of the 60 day period set forth in the
immediately preceding sentence, the Company shall deliver a Repurchase Notice to
the holders of such Remaining Option Shares setting forth the aggregate
consideration to be paid by the respective Investors for such Remaining Option
Shares and the time and place for the closing of the transaction. At the time
the Company delivers such Repurchase Notice to the holders of such Remaining
Option Shares, the Company shall also deliver written notice to each Investor
setting forth the amount of securities such Investor is entitled to purchase,
the aggregate purchase price, and the time and place of the closing of the
transaction.
(d) MANNER OF PAYMENT. If the Company purchases all or any portion
of such Option Shares, including Option Shares held by one or more of your
transferees, then the Company shall pay for such Option Shares (i) first by
offsetting obligations owed by you or your transferee(s) to the Company or to
any Investor and (ii) second with a subordinated promissory note of the Company,
which subordinated promissory note shall bear interest at the rate of 10% per
annum (which shall be payable annually in cash unless otherwise prohibited),
shall have all principal payment due on the fifth anniversary of the date of
issuance and shall be subordinated on terms and conditions satisfactory to the
holders of the Company's indebtedness for borrowed money, or, at the Company's
option, by certified check or wire transfer of funds. If an Investor elects to
purchase all or any portion of the Remaining Option Shares, such Investor shall
pay for such Option Shares by certified check or wire transfer of funds.
12. RESTRICTIONS ON TRANSFER.
(a) TRANSFER OF OPTION SHARES. The holders of Option Shares shall
not sell, transfer, assign, pledge, or otherwise dispose of (a "TRANSFER") any
interest in any Option Shares, except pursuant to (i) a Public Sale, (ii) a Sale
of the Company, or (iii) the provisions of SECTION 12(b) hereof.
(b) CERTAIN PERMITTED TRANSFERS. The restrictions set forth in this
SECTION 12 shall not apply with respect to any Transfer of Option Shares made by
will or pursuant to applicable laws of descent and distribution or to such
Person's legal guardian in case of any mental incapacity or among such Person's
Family Group; PROVIDED that the restrictions contained in this SECTION 12 will
continue to be applicable to the Option Shares after any Transfer of the type
referred to in this SECTION 12(b) and the transferees of such Option Shares will
agree in writing to be bound by the provisions of this Agreement. Any transferee
of Option Shares pursuant to a transfer in accordance with the provisions of
this SECTION 12(b) is herein referred to as a "PERMITTED TRANSFEREE." Upon the
transfer of Option Shares pursuant to this SECTION 12(b),
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you will deliver a written notice (a "TRANSFER NOTICE") to the Company. The
Transfer Notice will disclose in reasonable detail the identity of the Permitted
Transferee(s).
(c) TERMINATION OF RESTRICTIONS. The restrictions set forth in this
SECTION 12 will continue with respect to each Option Share until the earlier of
(i) the date on which such Option Share has been transferred in a Public Sale in
compliance with the terms hereof or (ii) the consummation of a Sale of the
Company.
13. ADDITIONAL RESTRICTIONS ON TRANSFER.
(a) RESTRICTIVE LEGEND. The certificates representing the Option
Shares shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON MAY [______], 2002 HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES
LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS, AND CERTAIN
OTHER AGREEMENTS SET FORTH IN AN OPTION AGREEMENT BETWEEN THE COMPANY
AND [PARTICIPANT] DATED AS OF MAY [____], 2002 A COPY OF WHICH MAY BE
OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF
BUSINESS WITHOUT CHARGE."
(b) OPINION OF COUNSEL. You may not sell, transfer, or dispose of
any Option Shares (except pursuant to an effective registration statement under
the Securities Act) without first delivering to the Company an opinion of
counsel reasonably acceptable in form and substance to the Company that
registration under the Securities Act or any applicable state securities law
is not required in connection with such transfer.
(c) HOLDBACK. You agree not to effect any public sale or
distribution of any equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180 days after the effectiveness of any underwritten
offering of the Company's equity securities except as part of such underwritten
registration if otherwise permitted.
14. SALE OF THE COMPANY.
(a) If the holders of a majority of the Common Shares then
outstanding (the "APPROVING HOLDERS") approve a Sale of the Company (the
"APPROVED SALE"), you shall consent to and raise no objections against the
Approved Sale, and if the Approved Sale is structured as a sale of stock, you
shall vote for, consent to, raise no objection against, and agree to sell your
Common Shares and surrender any stock options owned by you on the terms and
conditions
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approved by the Approving Holders, subject to the provisions of SECTION 14(b).
You shall take all necessary and desirable actions in connection with the
consummation of the Approved Sale.
(b) Your obligations with respect to the Approved Sale are subject
to the satisfaction of the following conditions: (i) upon the consummation of
the Approved Sale, you shall receive the same form and amount of consideration
per Common Share as other holders of Common Shares, or if you are given an
option as to the form and amount of consideration to be received, then all
holders of Common Shares shall be given the same option; and (ii) if you have
currently exercisable or convertible rights to acquire Common Shares, then you
shall be given the opportunity to either (A) exercise such rights prior to the
consummation of the Approved Sale and participate in such sale as a holder of
Common Shares or (B) upon the consummation of the Approved Sale, receive in
exchange for such rights consideration equal to the amount determined by
multiplying (1) the same amount of consideration per Common Share received by
the holders of Common Shares in connection with the Approved Sale less the
exercise or conversion price per Common Share of such rights to acquire Common
Shares by (2) the number of Common Shares represented by such rights.
(c) If the Board or the Approving Holders enter into any negotiation
or transaction for which Rule 506 (or any similar rule then in effect)
promulgated by the Securities and Exchange Commission may be available with
respect to such negotiation or transaction (including a merger, consolidation,
or other reorganization), you shall, at the request of the Company, appoint a
"purchaser representative" (as such term is defined in Rule 501) reasonably
acceptable to the Company. If you appoint a purchaser representative designated
by the Company, then the Company shall pay the fees of such purchaser
representative. However, if you decline to appoint the purchaser representative
designated by the Company, then you shall appoint another purchaser
representative (reasonably acceptable to the Company), and you shall be
responsible for the fees of the purchaser representative so appointed.
(d) You shall bear the pro-rata share (based upon the aggregate
consideration received in such sale) of the costs of any sale of Common Shares
pursuant to an Approved Sale to the extent such costs are reasonable and
incurred for the benefit of all holders of Common Shares and are not otherwise
paid by the Company or the acquiring party. Costs incurred by the holders of
Common Shares on their own behalf shall not be considered costs of the
transaction hereunder.
(e) Any portion of your Option which has not been exercised prior
to or in connection with the Sale of the Company shall be forfeited.
(f) TERMINATION OF RESTRICTIONS. The provisions of this SECTION 14
shall terminate upon the consummation of a Public Offering.
15. CONFIDENTIALITY, INVENTIONS, NONCOMPETITION AND NONSOLICITATION.
(a) OBLIGATION TO MAINTAIN CONFIDENTIALITY. You acknowledge that the
information, observations and data obtained by you during the course of your
employment concerning the business and affairs of the Company and its
Subsidiaries and Affiliates are the property of the Company. Therefore, you
agree that you will not disclose to any unauthorized
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person or use for your own account any of such information, observations or data
without the prior written consent of the Board or the Committee, unless and to
the extent that the aforementioned matters become generally known to and
available for use by the public other than as a result of your acts or omissions
to act. You agree to deliver to the Company at Termination, or at any other time
the Company may request in writing, all memoranda, notes, plans, records,
reports and other documents (and copies thereof) relating to the business of the
Company and its Subsidiaries and Affiliates which you may then possess or have
under your control.
(b) OWNERSHIP OF PROPERTY. You acknowledge that all inventions,
innovations, improvements, developments, methods, processes, programs, designs,
analyses, drawings, reports and all similar or related information (whether or
not patentable) that relate to the Company's or its Subsidiaries' or Affiliates
actual or anticipated business, research and development, or existing or future
products or services and that are conceived, developed, contributed to, made or
reduced to practice by you (either solely or jointly with others) while employed
by the Company (including any of the foregoing that constitutes any proprietary
information or records) ("WORK PRODUCT") belong to the Company and you hereby
assign, and agree to assign, all of the above Work Product to the Company. Any
copyrightable work prepared in whole or in part by you in the course of your
work for the Company and its Subsidiaries and Affiliates shall be deemed a "work
made for hire" under the copyright laws, and the Company and its Subsidiaries
and Affiliates shall own all rights therein. To the extent that any such
copyrightable work is not a "work made for hire," you hereby assign and agree to
assign to the Company all right, title and interest, including copyright in and
to such copyrightable work. You shall promptly disclose such Work Product and
copyrightable work to the Board and perform all actions reasonably requested by
the Board (whether before or after Termination) to establish and confirm the
Company's ownership (including assignments, consents, powers of attorney and
other instruments).
(c) THIRD PARTY INFORMATION. You understand that the Company, its
Subsidiaries and Affiliates will receive from third parties confidential or
proprietary information ("THIRD PARTY INFORMATION") subject to a duty on the
Company's, its Subsidiaries' and Affiliates' part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During your employment and thereafter, you will hold Third Party
Information in the strictest confidence and will not disclose to anyone (other
than personnel of the Company, its Subsidiaries and Affiliates who need to know
such information in connection with their work for the Company, its Subsidiaries
and Affiliates) or use, except in connection with your work for the Company, its
Subsidiaries and Affiliates, Third Party Information without the prior written
consent of the Board.
(d) USE OF INFORMATION OF PRIOR EMPLOYERS. During your employment,
you will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employers or any other person to whom you have an
obligation of confidentiality, and will not bring onto the premises of the
Company, its Subsidiaries or Affiliates any unpublished documents or any
property belonging to any former employer or any other person to whom you have
an obligation of confidentiality unless consented to in writing by the former
employer or person. You will use in the performance of your duties only
information which is (i)(x) common knowledge in the industry or (y) is otherwise
legally in the public domain, (ii) is otherwise
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provided or developed by the Company, its Subsidiaries or Affiliates or (iii) in
the case of materials, property or information belonging to any former employer
or other person to whom you have an obligation of confidentiality, approved for
such use in writing by such former employer or person.
(e) NONCOMPETITION AND NONSOLICITATION. You acknowledge that in the
course of your employment you will become familiar with the Company's or its
Subsidiaries' trade secrets and with other confidential information concerning
the Company or its Subsidiaries and that your services will be of special,
unique and extraordinary value to the Company or its Subsidiaries. Therefore,
you agree that:
(i) NONCOMPETITION. While employed by the Company or its
Subsidiaries, and (i) in the event of the termination of your
employment without Cause, the Severance Period (as defined in your
employment agreement with the Company or a Subsidiary) or (ii) in the
event of the termination of your employment for any other reason, for
a period of two years thereafter (the "NONCOMPETE PERIOD"), you shall
not, anywhere in the world where the Company or its Subsidiaries
conduct or actively propose to conduct business during your
employment, directly or indirectly own, manage, control, participate
in, consult with, be employed by or in any manner engage in any
business competing with the businesses of the Company or its
Subsidiaries prior to Termination; provided, however, that you may own
up to 1% of any class of an issuer's publicly traded securities.
(ii) NONSOLICITATION. During the Noncompete Period, you shall
not directly or indirectly through another entity (i) induce or
attempt to induce any employee of the Company or its Subsidiaries to
leave the employ of the Company or its Subsidiaries, or in any way
interfere with the relationship between the Company or its
Subsidiaries and any employee thereof, and (ii) hire any person who
was an employee of the Company or its Subsidiaries within 180 days
prior to the time such employee was hired by you, (iii) induce or
attempt to induce any customer, supplier, licensee or other business
relation of the Company or its Subsidiaries to cease doing business
with the Company or its Subsidiaries or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company or its Subsidiaries or (iv) directly or
indirectly acquire or attempt to acquire an interest in any business
relating to the business of the Company or its Subsidiaries and with
which the Company, its Subsidiaries or Affiliates has entered into
substantive negotiations or has requested and received confidential
information relating to the acquisition of such business by the
Company, its Subsidiaries or Affiliates in the two-year period
immediately preceding a Termination.
(iii) ENFORCEMENT. If, at the time of enforcement of
SECTION 15(e)(i) or (ii), a court holds that the restrictions stated
herein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum duration, scope or geographical area
reasonable under such circumstances shall be substituted for the
stated period, scope or area and that the court shall be allowed
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to revise the restrictions contained herein to cover the maximum
duration, scope and area permitted by law. You agree that because your
services are unique and you have access to confidential information,
money damages would be an inadequate remedy for any breach of SECTION
15. You agree that the Company, its Subsidiaries and Affiliates, in
the event of a breach or threatened breach of this SECTION 15, may
seek injunctive or other equitable relief in addition to any other
remedy available to them in a court of competent jurisdiction without
posting bond or other security.
(f) ACKNOWLEDGMENTS. You acknowledge that the provisions of this
SECTION 15 are (i) in addition to, and not in limitation of, any obligation of
yours under the terms of any employment agreement with the Company or a
Subsidiary, (ii) in consideration of employment with the Company or its
Subsidiaries, (iii) the issuance of the Option by the Company and (iv)
additional good and valuable consideration as set forth in this Agreement. In
addition, you agree and acknowledge that the restrictions contained in SECTION
15 do not preclude you from earning a livelihood, nor do they unreasonably
impose limitations on your ability to earn a living. In addition, you
acknowledge (i) that the business of the Company or its Subsidiaries will be
international in scope and without geographical limitation, (ii) notwithstanding
the state of incorporation or principal office of the Company or its
Subsidiaries, or any of their respective executives or employees (including the
you), it is expected that the Company or its Subsidiaries will have business
activities and have valuable business relationships within its industry
throughout the world, and (iii) as part of you responsibilities, you will be
traveling and conducting business throughout the world in furtherance of the
Company's business and its relationships. You agree and acknowledge that the
potential harm to the Company or its Subsidiaries of the non-enforcement of this
SECTION 15 outweighs any potential harm to you of its enforcement by injunction
or otherwise. You acknowledge that you has carefully read this Agreement and
have given careful consideration to the restraints imposed upon you by this
Agreement, and are in full accord as to their necessity for the reasonable and
proper protection of confidential and proprietary information of the Company,
its Subsidiaries and Affiliates now existing or to be developed in the future.
You expressly acknowledge and agree that each and every restraint imposed by
this Agreement is reasonable with respect to subject matter, time period and
geographical area.
16. REMEDIES. The parties hereto (and the Investors as third-party
beneficiaries hereof) shall be entitled to enforce their respective rights under
this Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement, and to exercise all other rights existing in their
favor. The parties hereto acknowledge and agree that money damages would not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party hereto (and the Investors as third-party beneficiaries hereof) may, in
their sole discretion, apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
17. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the meanings set forth below:
"AGREEMENT" shall mean this stock option agreement.
10
"AFFILIATE" shall mean, with respect to any Person, any other Person,
which, directly or indirectly, controls, is controlled by, or is under common
control with such Person.
"BOARD" shall mean the Board of Directors of the Company.
"CAUSE" shall mean (i) the commission of a felony or a crime involving
moral turpitude or the commission of any other act or omission involving
material dishonesty, material disloyalty, or fraud with respect to the Company
or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct
tending to bring the Company or any of its Subsidiaries into public disgrace or
disrepute, (iii) your failure (other than by reason of Disability) to carry out
effectively your duties and obligations to the Company or to participate
effectively and actively in the management of the Company, as determined in the
reasonable judgment of the Board, (iv) gross negligence or willful misconduct
with respect to the Company, (v) any material breach of this Agreement, or (vi)
any material breach of your employment agreement, if any, with the Company or a
Subsidiary.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute.
"COMMITTEE" shall mean the committee of the Board that shall be
designated by the Board to administer the Plan. The Committee shall be composed
of two or more directors as appointed from time to time to serve by the Board a
majority of whom shall be Investor members of the Board.
"COMMON SHARES" shall mean the Company's non-voting common stock, par
value $.01 per share, and any other shares into which such stock may be changed
or convert by reason of a recapitalization, reorganization, merger,
consolidation, or any other change in the corporate structure or capital stock
of the Company.
"COMPANY" shall mean TSI Telecommunication Holdings, Inc., a Delaware
corporation and (except to the extent the context requires otherwise) any
"subsidiary corporation" of TSI Telecommunication Holdings, Inc. as such term is
defined in SECTION 424(f) of the Code.
"DISABILITY" shall mean your inability, due to documented illness,
accident, injury, physical or mental incapacity, or other disability, to carry
out effectively your duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 90 consecutive days or for shorter periods aggregating at least 120 days
(whether or not consecutive) during any twelve-month period, as determined in
the reasonable judgment of the Board.
"FAIR MARKET VALUE" of the Common Shares shall mean the fair market
value of such stock, taking into account all relevant factors determinative of
value, as determined solely by the Committee.
"FAMILY GROUP" shall mean, with respect to a Person who is an
individual, such Person's spouse and descendants (whether natural or adopted),
and any trust, family limited partnership, limited liability company or other
entity wholly owned, directly or indirectly, by such Person or
11
such Person's spouse and/or descendants that is and remains solely for the
benefit of such Person and/or such Person's spouse and/or descendants and any
retirement plan for such Person.
"GTCR" shall mean GTCR Fund VII, L.P., a Delaware limited partnership.
"INVESTORS" shall mean GTCR and any other investment fund managed by
GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
"OPTION SHARES" shall mean (i) all Common Shares issued or issuable
upon the exercise of the Option and (ii) all Common Shares issued with respect
to the Common Shares referred to in clause (i) above by way of stock dividend or
stock split or in connection with any conversion, merger, consolidation or
recapitalization or other reorganization affecting the Common Shares. Option
Shares shall continue to be Option Shares in the hands of any holder other than
you (except for the Company or the Investors and, to the extent that you are
permitted to transfer Option Shares pursuant to SECTION 12 or SECTION 13 hereof,
purchasers pursuant to a Public Offering under the Securities Act), and each
such transferee thereof shall succeed to the rights and obligations of a holder
of Option Shares hereunder.
"PERSON" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, and a governmental entity or any
department, agency, or political subdivision thereof.
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of shares of the Company's Common Stock as
approved by the Board or GTCR.
"PUBLIC SALE" shall mean any sale of Common Shares to the public
pursuant to which such Common Shares have been effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering such Common Shares or to the public through a broker, dealer, or market
maker pursuant to the provisions of Rule 144 (or any similar provision then in
force) under the Securities Act, other than Rule 144(k) prior to a Public
Offering.
"SALE OF THE COMPANY" means any transaction or series of transactions
as a consequence of which any Person or group of related Persons (other than the
Investors and their Affiliates) in the aggregate acquire(s) (i) capital stock of
the Company possessing the voting power (other than voting rights accruing only
in the event of a default, breach or event of noncompliance) to elect a majority
of the Company's board of directors (whether by merger, consolidation,
reorganization, combination, sale or transfer of the Company's capital stock,
shareholder or voting agreement, proxy, power of attorney or otherwise) or (ii)
all or substantially all of the Company's assets determined on a consolidated
basis; provided that a Public Offering shall not constitute a Sale of the
Company.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and any successor statute.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of
12
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a limited liability company, partnership, association or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity. For purposes hereof, references to a "SUBSIDIARY" of any Person shall be
given effect only at such times that such Person has one or more Subsidiaries,
and, unless otherwise indicated, the term "SUBSIDIARY" refers to a Subsidiary of
the Company.
"TERMINATION" shall have the meaning set forth in SECTION 11(a).
18. AMENDMENT. Except as otherwise provided herein, any provision of this
Agreement may be amended or waived only with the prior written consent of you
and the Company; PROVIDED that no provision of SECTION 11, 12, 13, 14, 15 or 16
or of this SECTION 18 may be amended or waived without the prior written consent
of GTCR.
19. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto whether so
expressed or not.
20. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
21. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts (including by means of telecopied or electronically
transcribed signature pages), each of which shall constitute an original, but
all of which taken together shall constitute one and the same Agreement.
22. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
23. GOVERNING LAW. The corporate law of the State of Delaware shall
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by the internal law, and not
the law of conflicts, of the State of Delaware.
24. NOTICES. All notices, demands, or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to
13
have been given when delivered personally or mailed by certified or registered
mail, return receipt requested and postage prepaid, to the recipient. Such
notices, demands, and other communications shall be sent to you and to the
Company and the Investors at the addresses indicated on the Notices Schedule
attached hereto or to such other address or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party.
25. THIRD-PARTY BENEFICIARY. The Company and you acknowledge that
each of the Investors is a third-party beneficiary under this Agreement.
26 RULE 701 COMPENSATION. The Company and you acknowledge and agree
that this Agreement has been executed and delivered, and the Option has been
granted hereunder, in connection with and as a part of the compensation and
incentive arrangements between the Company and you. The grant of the Option
hereunder and any issuance of Option Shares upon exercise of the Option are
intended to qualify as an exempt offering under Rule 701 of the Securities Act.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between you and the Company, and supersedes all other agreements,
whether written or oral, with respect to the subject matter hereof.
* * * *
14
Please execute the extra copy of this Agreement in the space below and
return it to the Company's Secretary at its executive offices to confirm your
understanding and acceptance of the agreements contained in this Agreement.
Very truly yours,
TSI Telecommunication Holdings, Inc.
--------------------------------
By: G. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
Enclosures: 1. Extra copy of this Agreement
2. Copy of the Plan
The undersigned hereby acknowledges having read this Agreement and the Plan
and hereby agrees to be bound by all provisions set forth herein and in the
Plan.
Dated as of: PARTICIPANT
-------------------------
Number of Option Shares
------- ------------------------------------
[PARTICIPANT IN CAPS]
Exercise Price $5.00
CONSENT
The undersigned spouse of Participant hereby acknowledges that I have read
the foregoing Stock Option Agreement and that I understand its contents. I am
aware that the Agreement provides for the repurchase of my spouse's Common
Shares under certain circumstances and imposes other restrictions on the
transfer of such Common Shares. I agree that my spouse's interest in the Common
Shares is subject to this Agreement and any interest I may have in such Common
Shares shall be irrevocably bound by this Agreement and further that my
community property interest, if any, shall be similarly bound by this Agreement.
I am aware that the legal, financial, and other matters contained in this
Agreement are complex and I am free to seek advice with respect thereto from
independent counsel. I have either sought such advice or determined after
carefully reviewing this Agreement that I will waive such right.
----------------------------------------
Name:
-----------------------------------
-----------------------------------------
Witness
NOTICES SCHEDULE
IF TO THE PARTICIPANT: IF TO THE INVESTORS:
[Name] GTCR Fund VII, L.P.
[Address] c/o GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE COMPANY: AND:
TSI Telecommunication Holdings, Inc. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY (WHICH WILL NOT CONSTITUTE NOTICE TO
THE COMPANY) TO:
GTCR Fund VII, L.P.
c/o GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AND:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
