EXHIBIT 10.3
US Unwired Inc.
1999
Equity Incentive Plan
US Unwired Inc.
Equity Incentive Plan
1. Definitions. The terms defined in this Section 1 or elsewhere in the
Plan shall, for all purposes of this Plan, have the meanings herein specified:
1.1 "Affiliate" means, with respect to an entity, a person or entity
that directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, such entity.
1.2 "Applicable Percentage" shall have the meaning provided in
Section 12.11(a)(iii)b.
1.3 "Approval Date" shall have the meaning provided in Section
12.11(a)(ii).
1.4 "Base Price" shall mean the price established at the time of
grant of an SAR or an LSAR from which the appreciation of a share of Stock
between the date of grant and exercise will be calculated.
1.5 "Board" shall mean the Board of Directors of the Company, acting
as such.
1.6 "Business Combination" shall have the meaning provided in Section
12.11(a)(iii).
1.7 "Cause" shall mean, with respect to any particular Employee, (i)
the material and willful failure of such Employee to perform duties
assigned to him if such failure is not waived by the Company or cured by
such Employee within 30 days after the Company expressly notified the
Employee in writing of the basis for the Company's claim that the Employee
has materially and willfully failed to perform his duties, (ii) the
Employee is found guilty of fraud, theft, embezzlement or the
misappropriation of funds or is convicted of any felony crime, (iii) a
violation of the Company's policy manual, as amended from time to time (the
"Policy Manual"), which is a grounds for termination of employment or (iv)
termination pursuant to a provision of the Policy Manual.
1.8 "Change of Control" shall have the meaning provided in section
12.11(a).
1.9 "Change of Control Value" shall have the meaning provided in
Section 12.11(d).
1.10 "Code" shall mean the Internal Revenue Code of 1986, as amended.
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1.11 "Committee" shall mean the committee of the Board authorized to
administer the Plan. Until such time as the Board has designated a
committee to administer the Plan, references herein to the "Committee"
shall be deemed to mean the "Board."
1.12 "Company" shall mean US Unwired Inc., a Louisiana corporation,
and its Subsidiaries.
1.13 "Consultant" shall mean any person who is engaged by the Company
or a Subsidiary to render consulting services and is compensated for such
consulting services.
1.14 "Employee" or "Employees" shall mean key persons (including
officers and directors) employed by the Company, or a Subsidiary thereof,
on a full-time basis and who are compensated for such employment by a
regular salary.
1.15 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
1.16 "Exercise Date" shall mean the date USU receives written notice
of exercise of an exercisable option, SAR or LSAR.
1.17 "Exercise Price" shall mean the price to be paid for the shares
of Stock being purchased pursuant to a stock option agreement.
1.18 "Fair Market Value" shall mean the price determined as follows:
(a) if the Stock is listed on an established stock exchange or any
automated quotation system that provides sale quotations, the closing sale
price for a share of Stock on such exchange or quotation system on the
applicable date, or if no sale of the Stock shall have been made on that
day, on the next preceding day on which there was a sale of the Stock; (b)
if the Stock is not listed on any exchange or quotation system, but bid and
asked prices are quoted and published, the mean between the quoted bid and
asked prices on the applicable date, and if bid and asked prices are not
available on such day, on the next preceding day on which such prices were
available; and (c) if the Stock is not regularly quoted, the fair market
value of the Stock on the applicable date as established by the Committee
in good faith.
1.19 "Incentive Agreement" shall mean the written agreement between
the Company and participant confirming the award and setting forth the
terms and conditions of the Incentive.
1.20 "Incentives" shall mean non-qualified Stock options, incentive
Stock options, SARs, LSARs, restricted Stock, Stock awards and performance
Stock.
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1.21 "Incumbent Board" shall have the meaning provided in Section
12.11 (a)(ii).
1.22 "LSAR" shall mean a limited stock appreciation right, which is a
right to receive cash with respect to Stock subject to an option in lieu of
exercising such option upon a Change of Control of the Company as described
in Section 8 hereof.
1.23 "USU" shall mean US Unwired Inc., a Louisiana corporation.
1.24 "Plan" shall mean the US Unwired Inc. 1999 Equity Incentive
Plan.
1.25 "Pyramid" shall mean the method of paying the Exercise Price in
a number of successive steps using Stock received upon the exercise of
other Stock options. The Optionee begins by paying the exercise price of
an option to purchase a small number of shares of Stock in cash or Stock.
Upon receipt of the option Stock, the Optionee delivers those same shares
of Stock back to USU to pay the exercise price of additional options. This
process continues with Stock received upon exercise being delivered back to
USU in successive steps until all options desired to be exercised have been
exercised.
1.26 "Restricted Period" shall have the meaning provided in
Section 9.2.
1.27 "Subsidiary" shall mean any corporation in which USU owns,
directly or indirectly through Subsidiaries, at least 50% of the total
combined voting power.
1.28 "Tax Date" shall have the meaning provided in Section 12.7.
1.29 "SAR" shall mean a Stock appreciation right as described in
Section 8 hereof.
1.30 "Stock" shall mean Class A common stock of the Company
representing an equity ownership interest in the Company with one vote per
share, except as this definition may be modified as provided in Section
12.5 hereof
2. Purpose. The purpose of this Plan is to increase stockholder value and
to advance the interests of USU and its Subsidiaries by furnishing a variety of
economic incentives designed to attract, retain and motivate key Employees,
officers, directors and Consultants and to strengthen the mutuality of interests
between such Employees, officers, directors and Consultants and USU's
stockholders. Incentives may consist of opportunities to purchase or receive
Stock, monetary payments related thereto or both, through options, Stock
appreciation rights, Stock awards, restricted Stock and performance Stock awards
on terms determined under the Plan.
3. Administration.
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3.1 Composition. Prior to the registration of the Stock under the
Exchange Act, the Plan shall be administered by the Board of Directors of
USU or by any committee of the Board of Directors to which the Board may
delegate the function. After registration of the Stock under the Exchange
Act, the Plan shall be administered by the compensation committee of the
Board of Directors of USU, the members of which shall qualify to administer
the Plan under applicable laws and regulations.
3.2 Authority. The Committee shall have plenary authority to award
Incentives under the Plan, to interpret the Plan, to establish any rules or
regulations relating to the Plan that it determines to be appropriate, to
enter into agreements with participants as to the terms of the Incentives
(the "Incentive Agreements") and to make any other determination that it
believes necessary or advisable for the proper administration of the Plan.
Its decisions in matters relating to the Plan shall be final and conclusive
on the Company and participants. The Committee may delegate its authority
hereunder to the extent provided in Section 4 hereof.
4. Eligible Participants. Employees of the Company, officers, directors
and Consultants shall be eligible to receive Incentives under the Plan when
designated by the Committee. Employees, officers, directors and Consultants may
be designated individually or by groups or categories, as the Committee deems
appropriate. With respect to participants not subject to Section 16 of the
Exchange Act, the Committee may delegate to an officer of the Company its
authority to designate participants, to determine the size and type of Incentive
to be received by those participants and to determine or modify performance
objectives for those participants.
5. Types of Incentives. Incentives may be granted under the Plan in any
of the following forms, either individually or in combination: (a) incentive
Stock options and nonqualified Stock options; (b) Stock appreciation rights; (c)
limited Stock appreciation rights; (d) Stock awards; (e) restricted Stock and
(f) performance Stock.
6. Stock Subject to the Plan.
6.1 Number of Stock. Subject to adjustment as provided in Section
12.5, a total of 2,300,000 shares of Stock are authorized to be issued
under the Plan. In the event that a Stock option, LSAR or performance
Stock granted hereunder expires or is terminated or canceled prior to
exercise or payment, any shares of Stock that were issuable under such
Incentives may again be issued under the Plan. If Stock is issued as
restricted Stock or pursuant to a Stock award and thereafter are forfeited
or reacquired by the Company pursuant to rights reserved upon issuance
thereof, such forfeited and reacquired Stock may again be issued under the
Plan. Incentives that are paid in cash are not counted against the
limitations provided in this Section 6.1.
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6.2 Cancellation. The Committee may also determine to cancel, and
agree to the cancellation of, options in order to make a participant
eligible for the grant of an option at a lower price or the grant of
another Incentive.
6.3 Type of Stock. Stock issued under the Plan may be authorized and
unissued Stock or issued Stock held as treasury Stock.
7. Stock Options. A Stock option is a right to purchase shares of Stock
from USU. Each Stock option granted by the Committee under this Plan shall be
subject to the following terms and conditions:
7.1 Price. The exercise price per Stock shall be determined by the
Committee, subject to adjustment under Section 12.5.
7.2 Number. The number of shares of Stock subject to the option
shall be determined by the Committee, subject to adjustment as provided in
Section 12.5.
7.3 Duration and Time for Exercise. The term of each Stock option
shall be determined by the Committee. Each Stock option shall become
exercisable at such time or times during its term as shall be determined by
the Committee at the time of grant. Notwithstanding the foregoing, the
Committee may accelerate the exercisability of any Stock option.
7.4 Repurchase. Upon approval of the Committee, the Company may
repurchase a previously granted Stock option from a participant by mutual
agreement before such option has been exercised by payment to the
participant of the amount per share of Stock by which the Fair Market Value
of the Stock subject to the option on the date of purchase exceeds the
exercise price, or on such other terms as may be provided in the Incentive
Agreement.
7.5 Manner of Exercise. An option may be exercised, in whole or in
part, by giving written notice to the Company, specifying the number of
shares of Stock to be purchased. The exercise notice shall be accompanied
by payment of the full exercise price. The exercise price shall be payable
in United States dollars and may be paid (a) by cash or check; (b) by
delivery of Stock held by the optionee for at least six months, which
shares of Stock shall be valued for this purpose at their Fair Market Value
on the date such option is exercised; (c) if permitted by the Committee in
the Incentive Agreement or otherwise, by delivery of Stock that have not
been held for six months including the use of the Pyramid method of
exercise; (d) if the Stock is listed on an established stock exchange or
any automated quotation system that provides sale quotations, by delivery
of a properly executed exercise notice together with irrevocable
instructions to a broker approved by the Company (with a copy to the
Company) to promptly deliver to the Company the amount of sale or loan
proceeds to pay the exercise price; or (e) in such other manner as may be
authorized from time to time by the Committee. In the case of
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delivery of an uncertified check upon exercise of an option, no Stock shall
be issued until the check has been paid in full. Prior to the issuance of
Stock upon the exercise of an option, a participant shall have no rights as
a Stockholder.
7.6 Incentive Options. Notwithstanding anything in the Plan to the
contrary, the following additional provisions shall apply to the grant of
options that are intended to qualify as incentive options (as such term is
defined in Section 422 of the Code):
(a) Any incentive option Agreement authorized under the Plan
shall contain such other provisions as the Committee shall deem
advisable, but shall in all events be consistent with and contain or
be deemed to contain all provisions required in order to qualify the
options as incentive options.
(b) All incentive options must be granted within ten years from
the date on which this Plan is adopted by the Board of Directors.
(c) Unless sooner exercised, all incentive options shall expire
no later than ten years after the date of grant.
(d) The Exercise Price for incentive options shall be not less
than the Fair Market Value of the Shares subject to the option on the
date of grant.
(e) No incentive options shall be granted to any participant who,
at the time such option is granted, would own (within the meaning of
Section 422 of the Code) interests possessing more than 10% of the
total combined voting power of all classes of equity interests of the
employer corporation or of its parent or subsidiary corporation.
8. Stock Appreciation Rights and Limited Stock Appreciation Rights. A SAR
is a right to receive, without payment to the Company, a number of shares of
Stock, cash or any combination thereof, the amount of which is determined
pursuant to the formula set forth in Section 8.4(a). A LSAR is a right to
receive, without payment to the Company, cash in an amount determined pursuant
to the formula set forth in Section 8.4(b) upon a Change of Control of the
Company. A SAR or LSAR may be granted (a) in tandem with any option granted
under the Plan, either concurrently with the grant of such option or at such
later time as determined by the Committee (as to all or any portion of the Stock
subject to the option), or (b) separately, without reference to any related
option. Each SAR and LSAR granted by the Committee under the Plan shall be
subject to the following terms and conditions:
8.1 Number and Base Price. Each SAR and LSAR granted to any
participant shall relate to such number of shares of Stock as shall be
determined by the Committee, subject to adjustment as provided in Section
12.5. In the case of a SAR or LSAR granted in tandem with an option, the
number of shares of Stock to which the SAR
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or LSAR pertains shall be reduced in the same proportion that the holder of
the option exercises the related option. The Committee shall determine the
Base Price for each SAR or LSAR. If a SAR or LSAR is granted in tandem with
an option, the Base Price shall be equal to the Exercise Price.
8.2 Duration and Exercisability. The term of each SAR and LSAR shall
be determined by the Committee. Each SAR shall become exercisable at such
time or times, to such extent and upon such conditions as shall be
determined by the Committee. Each LSAR shall become exercisable upon the
earlier of a Change of Control of the Company or immediately prior to the
closing of a transaction that will result in a Change of Control of the
Company if consummated. Notwithstanding the foregoing, the Committee may
in its discretion accelerate the exercisability of any SAR or LSAR. The
Committee shall also determine whether the SAR is payable in cash, Stock or
a combination thereof.
8.3 Exercise Procedure. A SAR or LSAR may be exercised, in whole or
in part, by giving written notice to the Company, specifying the number of
SARs or LSARs that the holder wishes to exercise. The Company shall,
within 30 days of an Exercise Date, deliver to the exercising holder
certificates for the Stock or cash or both to which the holder is entitled
pursuant to Section 8.4.
8.4 Payment.
(a) SARS.
(i) The number of shares of Stock that shall be issuable
upon the exercise of a SAR payable partly or wholly in Stock
shall be determined by dividing:
1. the product of (1) the number of shares of Stock as
to which the SAR is exercised, multiplied by (2) the amount
by which the Fair Market Value or of a share of Stock on the
Exercise Date exceeds the Base Price of the SAR; by
2. the Fair Market Value of a share of Stock on the
Exercise Date.
No fractional share of Stock shall be issued upon the
exercise of a SAR; instead, the holder of a SAR shall be entitled to
receive a cash adjustment equal to the same fraction of the Fair
Market Value of a share of Stock on the Exercise Date or to purchase
the portion necessary to make a whole share of Stock at its Fair
Market Value on the Exercise Date.
(ii) The cash payment that shall be made upon the exercise
of a SAR payable partly or wholly in cash shall be equal to the
amount by
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which the Fair Market Value on the Exercise Date of a share of
Stock exceeds the Base Price of the SAR, which amount is then
multiplied by the number of shares of Stock with respect to which
the SAR is exercised.
(b) LSARs. Upon exercise of a LSAR, the participant shall
receive a cash payment equal to the amount by which the per share
Change of Control Value on the Exercise Date exceeds the Base Price,
which amount is then multiplied by the number of shares of Stock with
respect to which the LSAR is exercised.
9. Restricted Stock.
9.1 Grant of Restricted Stock. An award of restricted Stock is an
issuance of shares of Stock that may be subject to the attainment of
specified performance goals or targets, restrictions on transfer,
forfeitability provisions and such other terms and conditions as the
Committee may determine, subject to the provisions of the Plan.
9.2 Award and Delivery of Restricted Stock. At the time an award of
restricted Stock is made, the Committee shall establish a period of time
(the "Restricted Period") applicable to such an award. Each award of
restricted Stock may have a different Restricted Period. The Committee
may, in its sole discretion, prescribe conditions for the termination of
the Restricted Period upon death, disability, retirement or other
termination of employment or service or upon the satisfaction of other
conditions with respect to all or any portion of the shares of restricted
Stock. Unless otherwise provided in the Incentive Agreement, the Committee
shall have the power to accelerate provided the expiration of the
Restricted Period with respect to all or any part of the Stock awarded to a
participant and the expiration of the Restricted Period shall automatically
occur under the conditions described in Section 12.11 hereof
9.3 Escrow. In order to enforce the restrictions imposed by the
Committee pursuant to this Section 9, the participant receiving restricted
Stock shall enter into an Incentive Agreement with the Company setting
forth the conditions of the grant. Certificates representing restricted
Stock shall be registered in the name of the participant and deposited with
the Company, together with a stock power endorsed in blank by the
participant. Each such certificate shall bear a legend in substantially
the following form:
The transferability of this certificate and the Stock represented by
it are subject to the terms and conditions (including conditions of
forfeiture) contained in the US Unwired Inc. Equity Incentive Plan
(the "Plan"), and an Agreement entered into between the registered
owner and US Unwired Inc. Copies of the Plan and the Agreement are on
file at the principal office of the Company.
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9.4 Dividends on Restricted Stock. Any and all cash and Stock
dividends paid with respect to the restricted Stock shall be subject to any
restrictions on transfer, forfeitability provisions or reinvestment
requirements as the Committee may, in its discretion, determine.
9.5 Forfeiture. Upon the forfeiture of any restricted Stock
(including any additional restricted Stock that may result from the
reinvestment of cash and Stock dividends in accordance with such rules as
the Committee may establish pursuant to Section 9.4), such forfeited Stock
shall be surrendered. The participants shall have the same rights and
privileges, and be subject to the same forfeiture provisions with respect
to any additional Stock received pursuant to Section 12.5 due to a
recapitalization, merger or other change in capitalization.
9.6 Expiration of Restricted Period. Upon the expiration or
termination of the Restricted Period and the satisfaction of any other
conditions prescribed by the Committee or at such earlier time as provided
for in Section 9.2 and in the restricted Stock Agreement, the restrictions
applicable to the restricted Stock shall lapse and a certificate for the
number of shares of Stock with respect to which the restrictions have
lapsed shall be delivered, free of all such restrictions, except any that
may be imposed by law, to the participant or the participant's estate, as
the case may be.
9.7 Rights as a Stockholder. Subject to the terms and conditions of
the Plan and subject to any restrictions on the receipt of dividends that
may be imposed by the Committee, each participant receiving restricted
Stock shall have all the rights of a stockholder with respect to Stock
during any period in which such shares of Stock are subject to forfeiture
and restrictions on transfer, including without limitation, the right to
vote such Stock. Unless otherwise restricted by the Committee, dividends
paid on Stock, in cash or property, other than Stock, shall be paid to the
participant currently.
10. Stock Awards. A Stock award consists of the transfer by the Company
to a participant of Stock, without other payment therefor, as additional
compensation for services to the Company. The number of shares of Stock to be
transferred by the Company to a participant pursuant to a Stock award shall be
determined by the Committee.
11. Performance Stock. A performance Stock consists of an award that may
be paid in Stock or in cash, as described below. The award of performance Stock
shall be subject to such terms and conditions as the Committee deems
appropriate, including the following:
11.1 Performance Objectives. Each performance Stock will be subject
to performance objectives for USU or one of its Subsidiaries or divisions
to be achieved by the end of a specified period. The number of shares of
performance Stock awarded shall be determined by the Committee and may be
subject to such terms and conditions, as the Committee shall determine. If
the performance objectives are achieved, each participant
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will be paid (a) a number of shares of Stock equal to the number of shares
of performance Stock initially granted to that participant; (b) a cash
payment equal to the Fair Market Value of such number of shares of Stock on
the date the performance objectives are met or such other date as may be
provided by the Committee or (c) a combination of Stock and cash, as may be
provided by the Committee. If such objectives are not met, each award of
performance Stock may provide for lesser payments in accordance with the
established formula.
11.2 Not a Stockholder. The award of performance Stock to a
participant shall not create any rights in such participant as a
stockholder of the Company until the payment of Stock with respect to an
award.
11.3 Dividend Equivalent Payments. A performance Stock award may be
granted by the Committee in conjunction with dividend equivalent payment
rights or other such rights. If so granted, such amounts shall be paid
currently in cash or an adjustment shall be made in performance Stock
awarded on account of cash dividends that may be paid or other rights that
may be issued to the holders of Stock prior to the end of any period for
which performance objectives were established.
12. General.
12.1 Duration. Subject to earlier termination under Section 12.10,
the Plan shall remain in effect until all Incentives granted under the Plan
have either been satisfied by the issuance of Stock or the payment of cash
or been terminated under the terms of the Plan and all restrictions imposed
on Stock in connection with their issuance under the Plan have lapsed. No
termination of the Plan by the Board of Directors may materially impair the
rights of a participant without the consent of the participant.
12.2 Non-transferability of Incentives. No option, SAR, LSAR or
performance Stock may be transferred, pledged or assigned by the holder
thereof (except in the event of the holder's death, by will or the laws of
descent and distribution) and the Company shall not be required to
recognize any attempted assignment of such Incentive by any participant.
During a participant's lifetime, an Incentive may be exercised only by him
or by his guardian or legal representative. Restricted Stock may only be
transferred, pledged or assigned following termination of the Restricted
Period and the transfer of all Stock may be subject to the additional
conditions provided in Section 12.4 or the applicable Incentive Agreement.
12.3 Effect of Termination of Employment. If a participant ceases to
be an Employee, officer, director or Consultant of the Company for any
reason, including death, any Incentives may be exercised or shall expire at
such times as may be determined by the Committee in the Incentive
Agreement.
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12.4 Additional Condition. Anything in this Plan to the contrary
notwithstanding: (a) the Company may, if it shall determine it necessary or
desirable for any reason, at the time of award of any Incentive or the
issuance of any share of Stock pursuant to any Incentive, require the
recipient of the Incentive, as a condition to the receipt thereof or to the
receipt of any share of Stock issued pursuant thereto, to deliver to the
Company a written representation of present intention to acquire the
Incentive or the Stock issued pursuant thereto for his own account for
investment and not for distribution; and (b) if at any time the Company
further determines, in its sole discretion, that the listing, registration
or qualification (or any updating of any such document) of any Incentive or
the Stock issuable pursuant thereto is necessary on any securities exchange
or under any federal or state securities or blue sky law, or that the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with the award of any
Incentive, the issuance of Stock pursuant thereto, or the removal of any
restrictions imposed on such Stock, such Incentive shall not be awarded or
such Stock shall not be issued or such restrictions shall not be removed,
as the case may be, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Company.
12.5 Adjustment. In the event of any recapitalization,
reclassification, Stock dividend, Stock split, combination of Stock or
other similar change in the Stock, the number of shares of Stock issuable
or issued under the Plan, including Stock subject to restrictions, options
or achievement of performance objectives, shall be adjusted in proportion
to the change in the number of outstanding shares of Stock. In the event
of any such adjustments, the purchase price of any option, the performance
objectives of any Incentive, and the Stock issuable pursuant to any
Incentive shall be adjusted as and to the extent appropriate, in the
reasonable discretion of the Committee, to provide participants with the
same relative rights before and after such adjustment.
12.6 Incentive Agreements. Except in the case of Stock awards, the
terms of each Incentive shall be stated in an Agreement approved by the
Committee. Notwithstanding anything to the contrary contained in the Plan,
the Company is under no obligation to grant an Incentive to a participant
or continue an Incentive in force unless the participant executes all
appropriate agreements with respect to such Incentives in such form as the
Committee may determine from time to time.
12.7 Withholding.
(1) The Company shall have the right to withhold from any
payments made under the Plan or to collect as a condition of payment,
any taxes required by law to be withheld. At any time that a
participant is required to pay to the Company an amount required to be
withheld under applicable income tax laws in connection with the
issuance of Stock, the lapse of restrictions on Stock or the exercise
of an option or SAR under the Plan, the participant may satisfy this
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obligation in whole or in part by electing (the "Election") to have
the Company withhold Stock having a value equal to the amount required
to be withheld. The value of the Stock to be withheld shall be based
on the Fair Market Value of the Stock on the date that the amount of
tax to be withheld shall be determined ("Tax Date"). Each Election
must be made prior to the Tax Date. If a participant makes an
election under Section 83(b) of the Code with respect to restricted
Stock, Election is not permitted to be made.
(2) A participant may also satisfy his or her total tax liability
related to the Incentive by delivering Stock owned by the participant.
The value of the Stock delivered shall be based on the Fair Market
Value of the Stock on the Tax Date.
12.8 No Continued Employment. No participant under the Plan shall
have any right, because of his or her participation, to continue in the
employ of the Company or to continue to serve as a director for any period
of time or to any right to continue his or her present or any other rate of
compensation.
12.9 Deferral Permitted. Payment of cash or distribution of any
Stock to which a participant is entitled under any Incentive shall be made
as provided in the Incentive Agreement. Payment may be deferred at the
option of the participant if provided the Incentive Agreement.
12.10 Amendment or Termination of the Plan. The Board may amend or
terminate the Plan at any time, provided, however, that certain amendments
may require stockholder approval if deemed necessary by the Board to
satisfy applicable tax or regulatory requirements.
12.11 Change of Control.
(a) A Change of Control shall mean:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of more than 50% of the
voting power of the Company except
a. any acquisition of Stock directly from USU or its
Affiliates,
b. any acquisition of Stock by USU or its Affiliates,
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c. any acquisition of Stock by any employee benefit
plan (or related trust) sponsored or maintained by USU or
any of its Affiliates,
d. any acquisition of Stock by any entity pursuant to
a transaction that complies with clauses (a), (b) and (c) of
subsection (iii) of this Section 12.11(a); or
(ii) individuals who, as of the date this Plan was adopted
by the Board (the "Approval Date"), constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board provided, however, that any individual
becoming a director subsequent to prove the Approval Date whose
election, or nomination for election by USU's stockholders, was
approved by a vote of the majority of the voting power of US
Unwired Inc. or any of its Affiliates, or at least a majority of
the directors then comprising the Incumbent Board, shall be
considered a member of the Incumbent Board, unless such
individual's initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person
other than the Incumbent Board; or
(iii) consummation of any merger, consolidation, share
exchange or similar reorganization involving USU, or any sale or
other disposition of all or substantially all of the assets of
USU (a "Business Combination"), in each case unless, following
such Business Combination,
a. all or substantially all of the individuals and
entities who were the beneficial owners of USUs voting
securities entitled to vote generally in the election of
directors immediately before such Business Combination have
direct or indirect beneficial ownership of more than 50% of
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
directors of the entity surviving or resulting from such
Business Combination (which, for purposes of this paragraph
(a) and paragraphs (b) and (c), shall include an entity
which as a result of such transaction owns USU or all or
substantially all of USU's assets either directly or through
one or more subsidiaries), and
b. no person (excluding any entity surviving or
resulting from such Business Combination or any employee
benefit plan or related trust of USU or such entity
resulting from such Business Combination) beneficially owns,
directly or indirectly,
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the Applicable Percentage or more of the then outstanding
entity resulting from such Business Combination or the
Applicable Percentage or more of the combined voting power
of the then outstanding voting securities of such entity
(where "Applicable Percentage" means the greater of 20% or
the percentage of Stock held by the largest Stockholder of
USU immediately prior to the Business Combination), and
c. at least a majority of the members of the board of
directors of the entity surviving or resulting from such
Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business
Combination; or
(iv) approval by the stockholders of USU of a plan of
complete liquidation or dissolution of USU.
(b) Upon the earlier of a Change of Control, or immediately
prior to the closing of a transaction that will result in a Change of
Control if consummated, all outstanding options, SARs and LSARs
granted pursuant to the Plan shall automatically become fully
exercisable, all restrictions or limitations on any Incentives shall
lapse and all performance criteria and other conditions relating to
the payment of Incentives shall be deemed to be achieved or waived by
USU without the necessity of action by any person.
(c) No later than 30 days after the approval by the Board of a
Change of Control of the types described in Sections 12.11(a)(iii) and
(iv) above, and no later than 30 days after a Change of Control of the
type described in Sections 12.11(a)(1) and (11) above, the Committee
(as the Committee was composed immediately prior to such Change of
Control and notwithstanding any removal or attempted removal of some
or all of the members thereof as directors or Committee members),
acting in its sole discretion without the consent or approval of any
participant may act to effect one or more of the alternatives listed
below and such act by the Committee may not be revoked or rescinded by
persons not members of the Committee immediately prior to the Change
of Control:
(i) require that all outstanding options and/or SARs be
exercised on or before a specified date (before or after such
Change of Control) fixed by the Committee, after which specified
date all unexercised options and SARs shall terminate,
(ii) provide for mandatory conversion of some or all of the
outstanding options and SARs held by some or all participants as
of a date, before or after such Change of Control, specified by
the Committee, in
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which event such options and SARs shall be deemed automatically
canceled and USU shall pay, or cause to be paid, to each such
participant an amount of cash equal to, or publicly traded
securities of the surviving corporation in the Change of Control
transaction with a value equal to, the excess, if any, of the
Change of Control Value of the Stock subject to such option or
SAR, as defined and calculated below, over the Exercise Price(s)
of such options or SARS,
(iii) make such equitable adjustments to Incentives then
outstanding as the Committee deems appropriate to reflect such
Change of Control (provided, however, that the Committee may
determine in its sole discretion that no adjustment is
necessary), or
(iv) provide that thereafter upon any exercise of an
option or SAR (each of which shall be fully exercisable pursuant
to Section 12.11(b)) the participant shall be entitled to
purchase under such option or SAR, in lieu of the number of
shares of Stock then covered by such option or SAR, the number
and class of shares of stock or other securities or property
(including, without limitation, cash) to which the participant
would have been entitled pursuant to the terms of the agreement
providing for the merger, consolidation, asset sale, dissolution
or other Change of Control of the type described in Sections
12.11(a)(iii) and (iv) of the Plan, if, immediately prior to such
Change of Control, the participant had been the holder of record
of the number of shares of Stock then covered by such options or
SARS,
provided, however, that the holder of LSARs may choose instead in his
sole discretion to exercise his LSARs.
(d) For the purposes of paragraph (ii) of Section 12.11(c) and
the exercise of LSARS, "Change of Control Value" shall equal the
amount determined by whichever of the following items is applicable:
(i) the per share of Stock price to be paid to
Stockholders of USU in any such merger, consolidation or other
reorganization,
(ii) the price per Stock offered to stockholders of USU in
any tender offer or exchange offer whereby a Change of Control
takes place,
(iii) in all other events, the Fair Market Value per share
of Stock as of the date determined by the Committee to be the
date of conversion of such options or SARs or the date of
exercise of such LSARS, or
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(iv) if the consideration offered to stockholders of USU in
any transaction described in this Section 12.11(d) consists of
anything other than cash, the Committee shall determine the fair
cash equivalent of the portion of the consideration offered that
is other than cash.
12.12 Loans. In order to assist a participant to acquire Stock
pursuant to an Incentive granted under the Plan and to assist a participant
to satisfy his tax liabilities arising in connection with such Incentive,
the Committee may authorize, at either the time of the grant of the
Incentive, at the time of the acquisition of Stock pursuant to the
Incentive, or at the time of the lapse of restrictions on restricted Stock
granted under the Plan, the extension of a loan, in compliance with
Regulation G of the Federal Reserve Board, to the participant by the
Company. The terms of any loans, including the interest rate, collateral
and terms of repayment will be subject to the discretion of the Committee.
The maximum credit available hereunder shall be the purchase price, if any,
of the Stock acquired pursuant to the Incentive, plus the maximum tax
liability that may be incurred in connection with the acquisition.
Adopted by the Board of Directors: September 27, 1999
Approved by the Stockholders: September 27, 1999
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