Exhibit 10.8
FORM OF RESTRICTED STOCK AGREEMENT
(Non-Assignable)
____________ Shares
Regarding Class A Common Stock of
TRITEL, INC.
Issued Pursuant to the
Tritel, Inc. 1999 Stock Option Plan
THIS CERTIFIES that effective January __, 1999, [name] ______________
is granted the right to purchase [number of shares] ____________ restricted but
fully paid and non-assessable shares of the Class A Common Stock of Tritel, Inc.
pursuant to the Tritel, Inc. 1999 Stock Option Plan, upon and subject to the
following terms and conditions and the terms and conditions of the Plan:
1. Subscription for Restricted Shares. Grantee hereby purchases from
the Company, and the Company hereby sells to Grantee, the Restricted Shares for
a cash subscription price of $.01 per share.
2. Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Plan. The following terms have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled" means
the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
"Automatic Repurchase Event" means (v) the consummation of a Company
Merger after giving effect to which the Cash Equity Investors, in the aggregate,
shall beneficially own on a Fully Diluted Basis less than 33% of the capital
stock or other equity interests in the surviving entity, (w) the consummation of
a Company Asset Sale, (x) the termination of Grantee's employment, (y) if and
only if the IPO Date has theretofore occurred, the seventh (7th) anniversary of
the Date of Grant, and (z) if and only if the IPO Date has not occurred prior to
the seventh (7th) anniversary of the date hereof, the IPO Date.
"Base Price" means ONE THOUSAND AND NO/100 U.S. DOLLARS (U.S.$1,000.00)
per share appropriately adjusted for stock splits, stock dividends and similar
changes in
capitalization (but excluding changes in the liquidation preference of the
Preferred Stock of the Company in accordance with the Restated Certificate).
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means a day on which banks and foreign exchange markets
are open for the transaction of business required for this Agreement, and the
agreements to which this Agreement refers, in New York, New York as relevant to
the determination to be made or the action to be taken.
"Cause" means only:
(i) Grantee's indictment for or conviction of a felony,
(ii) Fraud, misappropriation or embezzlement by Grantee against the
Company or any subsidiary or affiliate of the Company,
(iii) Grantee's willful misconduct or gross negligence in connection
with his employment which has materially adversely affected the Company,
monetarily or otherwise, as determined by a majority vote of the Board of
Directors of the Company, or
(iv) Any other act, omission or circumstance which otherwise provides
the Company the right to terminate Grantee's employment for "Cause" as defined
under Grantee's Employment Agreement, if any, with the Company or any Subsidiary
of the Company or under applicable law.
"Class A Common Stock" means those shares of the Company's Common Stock
designated as Class A Voting Common Stock.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means the Compensation Committee of the Board of Directors,
as described in Section 13(a) of the Plan, or, in the absence of a Compensation
Committee, the full Board of Directors.
"Company" means Tritel, Inc., a Delaware corporation.
"Company Asset Sale" means any sale or disposition of all or
substantially all of the Company's assets but excludes any pledges, encumbrances
or security interests that may be granted by the Company.
"Company Merger" means any merger, combination or consolidation of the
Company or any of its Subsidiaries with or into any other entity (regardless of
whether the Company or such Subsidiary is the surviving entity in any such
transaction).
"Company Stock" means any series or class of the Company's Common or
Preferred Stock.
2
"Date of Grant" means the effective date of this Agreement.
"Disability" means any physical or mental illness, injury or condition
that would qualify the Grantee for benefits under any long-term disability
benefit plan maintained by the Company or any Affiliate and applicable to
Grantee.
"Employment Agreement" means, collectively, that certain written
employment agreement between the Company and Grantee and that certain letter
agreement concerning compensation and other matters between the Company and
Grantee, as the same may be amended, modified or supplemented in accordance with
the terms thereof.
"Escrow Holder" means the Secretary of the Company.
"Fully Diluted Basis" means, with respect to the shares of Common Stock
outstanding, all of the shares of Common Stock then outstanding (regardless of
whether subject to repurchase), plus (without duplication) all the shares of
Common Stock issuable upon the exercise of outstanding options or convertible
securities (excluding the Company's Series A Preferred Stock, par value $.01 per
share).
"Governmental Authority" means a Federal, state or local court,
legislature, governmental agency (including, without limitation, the United
States Department of Justice), commission or regulatory or administrative
authority or instrumentality.
"Grantee" means the person whose name appears above in the first
paragraph of this Agreement.
"Investors Stockholders' Agreement" means that certain Investors
Stockholders' Agreement, by and among the Company and certain other partners as
the same may be amended, modified or supplemented in accordance with the terms
thereof.
"IPO Date" means the first date on which (a) the Class A Common Stock
shall have been registered pursuant to an effective registration statement
("Registration Statement") under the Securities Act, (b) the aggregate gross
proceeds received by the Company in connection with such Registration
Statement(s) equals or exceeds $20,000,000, and (c) the Class A Common Stock
shall be listed for trading on the New York Stock Exchange or the American Stock
Exchange or authorized for trading on NASDAQ, including without limitation its
National Market System.
"Market Price" means in the case of (I) an Automatic Repurchase Event:
(A) specified in clause (v) or (w) of the definition thereof, the
per share consideration paid or payable to the holders of Class A Common Stock
in connection with such event,
(B) specified in clause (x) of the definition thereof if the IPO
Date shall not have occurred prior to the date of termination, the fair market
value per share of Class A Common Stock as determined in good faith by the Board
of Directors,
3
(C) specified in clause (x) of the definition thereof if the IPO
Date shall have occurred on or prior to the date of termination, the average
closing price of the Class A Common Stock during the ten (10) trading days prior
to such date of termination,
(D) specified in clause (y) of the definition thereof, the average
closing price of the Class A Common Stock during the ten (10) trading days prior
to such seventh (7th) anniversary of the date hereof, or
(E) specified in clause (z) of the definition thereof, the per share
offering price of the Class A Common Stock issued in connection with the public
offering occurring on the IPO Date, or
(II) a Trigger Date:
(A) which is on the IPO Date, the per share offering price of the
Class A Common Stock issued in connection with the public offering occurring on
the IPO Date, or
(B) which is after the IPO Date, the average closing price of share
of Class A Common Stock during the ten (10) trading days prior to such Trigger
Date.
"NASDAQ" means the National Association of Securities Dealers'
Automated Quotation System.
"Non-Released Restricted Shares" means the number of shares of Class A
Common Stock initially issued to Grantee as Restricted Shares less the aggregate
number of Grantee's Restricted Shares that have (x) become Trigger Shares, or
(y) been repurchased by the Company.
"Person" means an individual, corporation, partnership, limited
liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization or other legal entity.
"Plan" means the Company's 1999 Stock Option Plan, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
"Preferred Stock" means the Company's preferred stock, par value $.01
per share.
"Repurchase Price" means $.01 per share.
"Restated Certificate" means the Amended and Restated Certificate of
Incorporation of the Company.
"Restricted Shares" means the [number] __________________ shares of
Class A Common Stock granted and subscribed for hereunder.
"Securities Act" means the Securities Act of 1933, as amended.
4
"Securities Purchase Agreement" means the Securities Purchase Agreement
by and among the Company and certain other parties, dated as of May 20, 1998, as
the same may be amended, modified or supplemented in accordance with the terms
thereof.
"Stockholders" means those Persons who are issued shares of Company
Stock and are a party to the Stockholders' Agreement.
"Stockholders' Agreement" means the Stockholders' Agreement by and
among the Company and certain other parties, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
"Trigger Date" means the date of delivery to the Company by Grantee of
a Trigger Notice.
"Trigger Notice" means a notice given by Grantee with respect to a
specified number of Restricted Shares to determine the number of Trigger Shares.
"Trigger Shares" means Restricted Shares set forth in a Trigger Notice
and not repurchased in connection with such notice pursuant to Section 3;
provided, however, that Restricted Shares that are not so repurchased shall, to
the extent applicable, continue to be subject to vesting in accordance with the
Vesting Schedule annexed hereto.
3. Vesting, Transfer and Repurchase of Unvested Shares, Etc.
a. General. The Restricted Shares shall be subject to repurchase by
the Company at the Repurchase Price in accordance with the terms of this Section
3.
b. Repurchase of Restricted Shares upon Automatic Repurchase Event.
Upon an Automatic Repurchase Event, Grantee shall sell to the Company, and the
Company shall purchase from Grantee, the aggregate of :
i. all Restricted Shares that shall not have vested (or are
stated to be subject to repurchase) in accordance with the Vesting Schedule
annexed hereto, plus
ii. a number of Restricted Shares equal to the number of
Non-Released Restricted Shares beneficially owned by Grantee multiplied by a
fraction, the numerator of which is the Base Price and the denominator of which
is the Market Price on the date of such event.
c. Repurchase of Restricted Shares on Trigger Date. On any Trigger
Date Executive may elect, by delivery of a Trigger Notice with respect to the
number of Restricted Shares to determine the number of Trigger Shares. Within 20
days of the giving of a Trigger Notice the Company shall repurchase from Grantor
and Grantee shall sell to the Company for the Repurchase Price a number of
Restricted Shares specified in the Trigger Notice multiplied by a fraction, the
numerator of which is the Base Price and the denominator of which is the Market
Price on the date of such notice. Each Trigger Notice shall be with respect to
at least 20% of the Restricted Shares initially issued to Grantee. A Trigger
Notice may be delivered only as follows: (x) not less than twenty (20) Business
Days prior to the IPO Date if
5
the Trigger Date is the IPO Date, or (y) following the IPO Date, annually, no
later than the eleventh Business Day following the Company's public announcement
of its earnings for the six (6) month period ended June 30 of each fiscal year.
d. Vesting Schedule. In connection with any such repurchases of
Restricted Shares, the Restricted Shares to be repurchased by the Company shall
proportionately reduce the number of Restricted Shares initially issued to
Grantee and allocable to each Vesting Date or Event set forth on the Vesting
Schedule annexed hereto.
e. Purchase Price; Closing of Repurchase, Assignment of Repurchase
Right. Any repurchase pursuant to this Section 3 shall be for the Repurchase
Price. The closing of a purchase and sale of repurchased shares shall take place
on a date mutually agreed by Grantee and the Company, but in no event later than
twenty (20) days after (i) the date that employment of Grantee shall have
terminated or (ii) in the case of an Automatic Repurchase Event other than
termination of employment of Grantee, the occurrence of the applicable event or
(iii) the date of a Trigger Notice (except that in connection with a Trigger
Notice given with respect to the IPO Date, the closing shall take place on the
IPO Date). At such closing, the Company shall deliver to the Grantee a check in
the amount of the aggregate Repurchase Price and, upon delivery thereof, the
Company shall become the legal and beneficial owner of the Restricted Shares so
sold and all rights and interests therein or relating thereto, and the Company
shall have the right to retain and transfer to its own name such shares being
repurchased by the Company.
4. Escrow of Shares. The certificate(s) representing all Restricted
Shares shall be held by the Escrow Holder, along with a stock power executed by
the Grantee in blank. Grantee directs the Company to deliver all certificates
representing Restricted Shares to the Escrow Holder. The Escrow Holder is hereby
directed to permit transfer of such shares only in accordance with this
Agreement, the Stockholders Agreement and the Investors Stockholders' Agreement.
In the event further instructions are desired by the Escrow Holder, he shall be
entitled to rely upon written directions of the Board of Directors of the
Company. The Escrow Holder shall have no liability for any act or omission
hereunder while acting in good faith in the exercise of his own judgment. The
Company agrees to indemnify and hold Escrow Holder free and harmless from and
against any and all losses, costs, damages, liabilities or expenses, including
counsel fees to which Escrow Holder may be put or which he may incur by reason
of or in connection with the escrow arrangement hereunder. If the Company or any
assignee repurchases any of the Restricted Shares pursuant to Section 3, the
Escrow Holder, upon receipt of written notice of such repurchase from the
proposed transferee, shall take all steps necessary to accomplish such
repurchase. From time to time, upon Grantee's request, Escrow Holder shall: (i)
cancel the certificate(s) held by the Escrow Holder and representing Restricted
Shares, (ii) cause new certificate(s) to be issued representing the number of
Restricted Shares no longer subject to repurchase pursuant to Section 3, which
certificate(s) the Escrow Holder shall deliver to Grantee and (iii) cause new
certificate(s) to be issued representing the balance of the Restricted Shares,
which certificate(s) shall be held in escrow by the Escrow Holder in accordance
with the provisions of this Section 4. Subject to the terms hereof, Grantee
shall have all the rights of stockholder with respect to the Restricted Shares
while they are held in escrow, including without limitation, the right to vote
the Restricted Shares and receive any cash dividends declared thereon. If, from
time to time during the term of the Company's repurchase
6
right, there is (i) any stock dividend, stock split or other change in the
Restricted Shares, or (ii) any merger or sale of all or substantially all of the
assets or other acquisition of the Company, any and all new, substituted or
additional securities to which such Grantee is entitled by reason of his
ownership of the Restricted Shares shall be immediately subject to this escrow,
deposited with the Escrow Holder and included thereafter as Restricted Shares
for purposes of this Agreement and the Company's repurchase right.
5. Legends. The share certificates evidencing the Restricted Shares
shall be endorsed with any and all legends required to be placed thereon under
Section 7(b) hereof, applicable federal or state securities laws or the
Stockholders' Agreement and the Investors Stockholders' Agreement.
6. Compliance With Law. The Company and Grantee will make reasonable
efforts to comply with all applicable securities laws. In addition,
notwithstanding any provision of this agreement to the contrary, the Restricted
Shares will not become vested at any time that such vesting would result in a
violation of any such law.
7. Investment Representations; Registration.
a. Grantee represents and warrants that:
(i) Grantee is acquiring the Restricted Shares hereunder for the
purpose of investment and not with a view to or for sale in connection with any
distribution thereof (other than in compliance with the Securities Act and all
applicable state securities laws).
(ii) Grantee is not relying on and acknowledges that no
representation is being made by the Company or any of its officers, employees,
Affiliates, agents or representatives, and, in particular, it is not relying on,
and acknowledges that no representation is being made in respect of, (x) any
projections, estimates or budgets delivered to or made available to them of
future revenues, expenses or expenditures, or future results of operations and
(y) any other information or documents delivered or made available to it or its
representatives.
(iii) In deciding to purchase the Restricted Shares, Grantee has
relied exclusively on the investigations made by Grantee and Grantee's
representatives and Grantee's and such representatives' knowledge of the
industry in which the Company proposes to operate.
b. Grantee agrees that all Restricted Shares shall only be sold
following registration under the Securities Act or pursuant to an exemption
therefrom.
c. The Company may affix a legend to the certificates
representing unregistered shares of Class A Common Stock issued pursuant to this
Agreement to the effect that such shares have not been registered under the
Securities Act and may only be sold or transferred upon registration or pursuant
to an exemption therefrom.
d. Except as may be provided under the Stockholders' Agreement,
the Company shall have no obligation to register under the Securities Act any
shares of Class A Common Stock or any other securities issued pursuant to this
Agreement.
7
8. Applicability of Other Instruments. The Restricted Shares are
issued, and this Agreement is entered into, pursuant to and subject to all of
the terms and conditions of the Plan, the terms and conditions of which are
hereby incorporated as though set forth at length, and the receipt of a copy of
which the Grantee hereby acknowledges by his receipt of this Agreement. A
determination of the Committee of the Board of Directors of the Company under
the Plan as to any questions which may arise with respect to the interpretation
of the provisions of this Agreement and of the Plan shall be final. The
Committee may authorize and establish such rules, regulations and revisions
thereof not inconsistent with the provisions of the Plan, as it may deem
advisable. In addition, Grantee hereby acknowledges receipt of a copy of, and by
executing this Agreement, joins in and is bound by the terms of, the
Stockholders' Agreement and the Investors Stockholders' Agreement as a party
thereto, effective upon the execution hereof.
9. Severability. In the event that one or more of the provisions of
this Agreement may be invalidated for any reason by a court, any provision so
invalidated will be deemed to be separable from the other provisions hereof, and
the remaining provisions hereof will continue to be valid and fully enforceable.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Mississippi without giving effect to
the conflicts of law principles thereof. The parties hereto hereby irrevocably
and unconditionally consent to submit to the non-exclusive jurisdiction of the
courts of the State of Mississippi and of the United States of America located
in ▇▇▇▇▇ County, Mississippi (the "Mississippi Courts") for any litigation
arising out of or relating to this Agreement, waive any objection to the laying
of venue of any such litigation in the Mississippi Courts and agrees not to
plead or claim in any Mississippi Court that such litigation brought therein has
been brought in an inconvenient forum.
8
WITNESS the seal of the Company and the signature of its duly
authorized officer.
Dated: ____________, ____
TRITEL, INC.
By: _________________________
Name: ______________________
Title: _____________________
ACKNOWLEDGED AND AGREED:
By: ________________________________
Name: __________________________
9
VESTING SCHEDULE
---------------------------------------------------------------------------
VESTING DATE OR EVENT PERCENT OF RESTRICTED
---------------------------------------------------------------------------
Date of Grant *%
---------------------------------------------------------------------------
First Anniversary of the Date of Grant *%
---------------------------------------------------------------------------
Second Anniversary of the Date of Grant *%
---------------------------------------------------------------------------
Third Anniversary of the Date of Grant *%
---------------------------------------------------------------------------
Fourth Anniversary of the Date of Grant *%
---------------------------------------------------------------------------
Fifth Anniversary of the Date of Grant *%
---------------------------------------------------------------------------
Completion of _____ 10%
---------------------------------------------------------------------------
Completion of _____ 10%
---------------------------------------------------------------------------
Accelerated Vesting
o Upon termination of Grantee's employment by reason of a Company Merger
or a Company Asset Sale, 100% of the Restricted Shares shall vest.
o Upon termination of Grantee's employment for any reason all Restricted
Shares that have not yet become vested shall be repurchased in
accordance with Section 3.
** To be determined in granting directors resolution.
