EXHIBIT 10.18
Option No.: ___
IPCS, INC. 2004 LONG-TERM INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in paragraph
1), by and between the Participant and iPCS, Inc. (the "Company");
WITNESSETH THAT:
WHEREAS, the Company maintains the iPCS, Inc. 2004 Long-Term Incentive Plan
(the "Plan"), which is incorporated into and forms a part of this Agreement, and
the Participant has been selected by the committee administering the Plan (the
"Committee") to receive a Non-Qualified Stock Option Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Participant, as follows:
1. TERMS OF AWARD. The following terms used in this Agreement shall have
the meanings set forth in this paragraph 1:
(a) The "Participant" is ________________.
(b) The "Grant Date" is ________________.
(c) The number of "Covered Shares" is _______ shares of Stock.
(d) The "Exercise Price" is ______ per share.
Other terms used in this Agreement are defined pursuant to paragraph 18 or
elsewhere in this Agreement.
2. AWARD AND EXERCISE PRICE. This Agreement specifies the terms of the
option (the "Option") granted to the Participant to purchase the number of
Covered Shares of Stock at the Exercise Price per share as set forth in
paragraph 1. The Option is not intended to constitute an "incentive stock
option" as that term is used in Code section 422.
3. DATE OF EXERCISE. As of any date, the Option shall be vested with
respect to 6.25% of the Covered Shares, multiplied by the sum of one plus the
number of the Company's full fiscal quarters that have lapsed as of such date
since the Grant Date. Notwithstanding the foregoing, the Option shall become
fully vested and exercisable upon (i) a Change in Control that occurs on or
before the Date of Termination, or (ii) the occurrence of any other acceleration
event described in a written employment agreement between the Participant and
the Company or a subsidiary of the Company. The Option may be exercised on or
after the Date of Termination only as to that portion of the Covered Shares for
which it was exercisable immediately prior to
1
(or became exercisable on) the Date of Termination, or became exercisable upon
the Date of Termination.
4. EXPIRATION. The Option shall not be exercisable after the Company's
close of business on the last business day that occurs prior to the Expiration
Date. The "Expiration Date" shall be the earliest to occur of:
(a) the ten-year anniversary of the Grant Date;
(b) if the Date of Termination occurs by reason of death or
Disability, the one-year anniversary of such Date of Termination; or
(c) if the Date of Termination occurs for reasons other than death or
Disability, the 90-day anniversary of such Date of Termination [THE
FOLLOWING TO BE INSERTED FOR ▇▇▇, ▇▇▇▇, ▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇:][, except where
such Date of Termination occurs within 12 months following a Change in
Control, then the later of the 90-day anniversary of such Date of
Termination or the five-year anniversary of the Change in Control; or
(d) if the Date of Termination occurs by reason of the Participant's
termination of employment for Cause, the Date of Termination.
5. METHOD OF OPTION EXERCISE. Subject to the terms of this Agreement and
the Plan, the Option may be exercised in whole or in part by filing a written
notice with the Secretary of the Company at its corporate headquarters prior to
the Company's close of business on the last business day that occurs prior to
the Expiration Date. Such notice shall specify the number of shares of Stock
which the Participant elects to purchase, and shall be accompanied by payment of
the Exercise Price for such shares of Stock indicated by the Participant's
election. Payment shall be by cash or by check payable to the Company. Except as
otherwise provided by the Committee before the Option is exercised: (i) all or a
portion of the Exercise Price may be paid by the Participant by delivery of
shares of Stock owned by the Participant and acceptable to the Committee having
an aggregate Fair Market Value (valued as of the date of exercise) that is equal
to the amount of cash that would otherwise be required; and (ii) if the Company
securities are publicly traded, the Participant may, if allowed by the Committee
and in accordance with procedures it established, pay the Exercise Price by
authorizing a third party to sell shares of Stock (or a sufficient portion of
the shares) acquired upon exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the entire Exercise Price and any
tax withholding resulting from such exercise. Except as otherwise provided by
the Committee, payments made with shares of Stock in accordance with clause (i)
above shall be limited to shares held by the Participant for not less than six
months prior to the payment date. The Option shall not be exercisable if and to
the extent the Company determines that such exercise would violate applicable
state or Federal securities laws or the rules and regulations of any securities
exchange on which the Stock is traded. If the Company makes such a
determination, it shall use all reasonable efforts to obtain compliance with
such laws, rules and regulations. In making any determination hereunder, the
Company may rely on the opinion of counsel for the Company.
-2-
6. WITHHOLDING. All deliveries and distributions under this Agreement are
subject to withholding of all applicable taxes. At the election of the
Participant, and subject to such rules and limitations as may be established by
the Committee from time to time, such withholding obligations may be satisfied
through the surrender of shares of Stock which the Participant already owns, or
to which the Participant is otherwise entitled under the Plan; provided,
however, that such shares may be used to satisfy not more than the Company's
minimum statutory withholding obligation (based on minimum statutory withholding
rates for Federal and state tax purposes, including payroll taxes, that are
applicable to such supplemental taxable income).
7. TRANSFERABILITY. The Option is not transferable other than as
designated by the Participant by will or by the laws of descent and
distribution, and during the Participant's life, may be exercised only by the
Participant. However, the Participant, with the approval of the Committee, may
transfer the Option for no consideration to or for the benefit of the
Participant's Immediate Family (including, without limitation, to a trust for
the benefit of the Participant's Immediate Family or to a partnership or limited
liability company for one or more members of the Participant's Immediate
Family), subject to such limits as the Committee may establish, and the
transferee shall remain subject to all the terms and conditions applicable to
the Option prior to such transfer. The foregoing right to transfer the Option
shall apply to the right to consent to amendments to this Agreement and, in the
discretion of the Committee, shall also apply to the right to transfer ancillary
rights associated with the Option. The term "Immediate Family" means the
Participant's spouse, parents, children, stepchildren, adoptive relationships,
sisters, brothers and grandchildren (and, for this purpose, shall also include
the Participant).
8. HEIRS AND SUCCESSORS. This Agreement shall be binding upon, and inure
to the benefit of, the Company and its successors and assigns, and upon any
person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company's assets and business. If any
rights exercisable by the Participant or benefits deliverable to the Participant
under this Agreement have not been exercised or delivered, respectively, at the
time of the Participant's death, such rights shall be exercisable by the
Designated Beneficiary, and such benefits shall be delivered to the Designated
Beneficiary, in accordance with the provisions of this Agreement and the Plan.
The "Designated Beneficiary" shall be the beneficiary or beneficiaries
designated by the Participant in a writing filed with the Committee in such form
and at such time as the Committee shall require. If a deceased Participant fails
to designate a beneficiary, or if the Designated Beneficiary does not survive
the Participant, any rights that would have been exercisable by the Participant
and any benefits distributable to the Participant shall be exercised by or
distributed to the legal representative of the estate of the Participant. If a
deceased Participant designates a beneficiary and the Designated Beneficiary
survives the Participant but dies before the Designated Beneficiary's exercise
of all rights under this Agreement or before the complete distribution of
benefits to the Designated Beneficiary under this Agreement, then any rights
that would have been exercisable by the Designated Beneficiary shall be
exercised by the legal representative of the estate of the Designated
Beneficiary, and any benefits distributable to the Designated Beneficiary shall
be distributed to the legal representative of the estate of the Designated
Beneficiary.
9. ADMINISTRATION. The authority to manage and control the operation and
administration of this Agreement shall be vested in the Committee, and the
Committee shall have
-3-
all powers with respect to this Agreement as it has with respect to the Plan.
Any interpretation of the Agreement by the Committee and any decision made by it
with respect to the Agreement is final and binding on all persons.
10. PLAN GOVERNS. Notwithstanding anything in this Agreement to the
contrary, the terms of this Agreement shall be subject to the terms of the Plan,
a copy of which may be obtained by the Participant from the office of the
Secretary of the Company; and this Agreement is subject to all interpretations,
amendments, rules and regulations promulgated by the Committee from time to time
pursuant to the Plan.
11. NOT AN EMPLOYMENT CONTRACT. The Option will not confer on the
Participant any right with respect to continuance of employment or other service
with the Company or any Subsidiary, nor will it interfere in any way with any
right the Company or any Subsidiary would otherwise have to terminate or modify
the terms of such Participant's employment or other service at any time.
12. NOTICES. Any written notices provided for in this Agreement or the
Plan shall be in writing and shall be deemed sufficiently given if either hand
delivered or if sent by fax or overnight courier, or by postage paid first class
mail. Notices sent by mail shall be deemed received three business days after
mailing but in no event later than the date of actual receipt. Notices shall be
directed, if to the Participant, at the Participant's address indicated by the
Company's records, or if to the Company, at the Company's principal executive
office.
13. FRACTIONAL SHARES. In lieu of issuing a fraction of a share upon any
exercise of the Option, resulting from an adjustment of the Option pursuant to
paragraph 4.2(f) of the Plan or otherwise, the Company will be entitled to pay
to the Participant an amount equal to the fair market value of such fractional
share.
14. NO RIGHTS AS SHAREHOLDER. The Participant shall not have any rights of
a shareholder with respect to the shares subject to the Option, until a stock
certificate has been duly issued following exercise of the Option as provided
herein.
15. AMENDMENT. This Agreement may be amended in accordance with the
provisions of the Plan, and may otherwise be amended by written agreement of the
Participant and the Company without the consent of any other person.
16. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
17. APPLICABLE LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Delaware, without regard to the
conflict of law provisions of any jurisdiction.
18. DEFINITIONS. For purposes of this Agreement, the terms used in this
Agreement shall be subject to the following:
-4-
(a) CAUSE. The term "Cause" shall be as defined in any existing
employment, consulting or any other agreement between the Participant and
the Company or a Subsidiary or an Affiliate provided the Participant is in
fact terminated for cause pursuant to such agreement, or, in the absence of
such an employment, consulting or other agreement, shall be defined as (i)
the determination by the Committee, in consultation with the Chief
Executive Officer, that the Participant has ceased to perform his duties to
the Company, an Affiliate (other than as a result of his incapacity due to
physical or mental illness or injury), which failure amounts to an
intentional and extended neglect of his duties to such party, (ii) the
determination by the Committee, in consultation with the Chief Executive
Officer, that the Participant has engaged or is about to engage in conduct
materially injurious to the Company or a Subsidiary or an Affiliate,
monetarily or otherwise, (iii) the Participant having been convicted of, or
pleaded guilty or no contest to, a felony, (iv) conduct by Participant that
involves theft, fraud or dishonesty, (v) repeated instances of drug or
alcohol abuse or unauthorized absences during scheduled work hours, or (vi)
the failure of the Participant to follow the lawful instructions of the
Board or his direct superiors.
(b) DATE OF TERMINATION. The term "Date of Termination" means the
first day occurring on or after the Grant Date on which the Participant is
not employed by the Company or any Subsidiary, regardless of the reason for
the termination of employment; provided that a termination of employment
shall not be deemed to occur by reason of a transfer of the Participant
between the Company and a Subsidiary or between two Subsidiaries; and
further provided that the Participant's employment shall not be considered
terminated while the Participant is on a leave of absence from the Company
or a Subsidiary approved by the Participant's employer. If, as a result of
a sale or other transaction, the Participant's employer ceases to be a
Subsidiary (and the Participant's employer is or becomes an entity that is
separate from the Company), [and the Participant is not, at the end of the
30-day period following the transaction, employed by the Company or an
entity that is then a Subsidiary, then] the occurrence of such transaction
shall be treated as the Participant's Date of Termination caused by the
Participant being discharged by the employer.
(c) DISABILITY. The Participant shall be considered to have a
"Disability" during the period in which the Participant is unable, by
reason of a medically determinable physical or mental impairment, to engage
in any substantial gainful activity, which condition, in the opinion of a
physician selected by the Committee, is expected to have a duration of not
less than 120 days.
(d) PLAN DEFINITIONS. Except where the context clearly implies or
indicates the contrary, a word, term, or phrase used in the Plan is
similarly used in this Agreement.
-5-
IN WITNESS WHEREOF, the Participant has executed this Agreement, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Grant Date.
Participant
--------------------------------------
iPCS inc.
By:
-----------------------------------
Its:
----------------------------------
-6-
