EXHIBIT 99.1
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NEXTWAVE WIRELESS INC.
2005 STOCK INCENTIVE PLAN
SECTION 1. Purpose of the Plan.
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The NextWave Wireless Inc. 2005 Stock Incentive Plan (the "Plan") is
intended to promote the interests of NextWave Wireless Inc., a Delaware
corporation (the "Company"), and its stockholders by encouraging officers,
employees, non-employee directors and consultants of the Company and its
Affiliates to acquire or increase their equity interests in the Company and to
provide a means whereby they may develop a sense of proprietorship and personal
involvement in the development and financial success of the Company, and to
encourage them to remain with and devote their best efforts to the business of
the Company thereby advancing the interests of the Company and its stockholders.
The Board of Directors of the Company also contemplates that through the Plan,
the Company and its Affiliates will be better able to attract and retain the
services of individuals who are essential for the growth and profitability of
the Company. The Plan provides for payment of various forms of incentive
compensation and accordingly is not intended to be a plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended, and shall be
administered accordingly.
SECTION 2. Definitions.
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As used in the Plan, the following terms shall have the meanings set
forth below:
"Affiliate" shall mean, 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, the Person in question. As used
herein, the term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"Award" shall mean any Option, Restricted Share, Performance Award,
Phantom Share, Bonus Shares or Other Stock-Based Award.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Bonus Shares" shall mean an award of Shares granted pursuant to
Section 6(d) of the Plan.
"Change in Control" shall mean the occurrence of any one of the
following events:
(a) any "person" (as defined in Section 3(a)(9) of the Exchange
Act, and as modified in Section 13(d) and 14(d) of the
Exchange Act) other than (A) the Company or any of its
subsidiaries, (B) any employee benefit plan of the Company or
any of its subsidiaries, (C) any Affiliate, (D) a company
owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of the Company, or (E) an underwriter temporarily
holding securities pursuant to an offering of such securities
(a "Person"), becomes the "beneficial owner" (as defined in
Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the
combined voting securities of the Company then outstanding;
(b) the consummation of any merger, organization, business
combination or consolidation of the Company or one of its
subsidiaries with or into any other entity or organization;
provided, however, that a merger, reorganization, business
combination or consolidation which would result in the holders
of the voting securities of the Company outstanding
immediately prior thereto holding securities which represent
immediately after such merger, reorganization, business
combination or consolidation more than 50% of the combined
voting power of the voting securities of the Company or the
surviving company or the parent of such surviving company
shall not be covered by this subparagraph (b);
(c) the consummation of a sale, lease, transfer, conveyance or
other disposition (including by merger or consolidation) by
the Company in one or a series of related transactions, of all
or substantially all of the Company's assets, other than any
such transaction if the holders of the voting securities of
the Company outstanding immediately prior thereto hold
securities immediately thereafter which represent more than
50% of the combined voting power of the voting securities of
the acquiror, or parent of the acquiror, of such assets;
(d) the Board of Directors of the Company approves a plan of
complete liquidation or dissolution of the Company, except in
connection with a transaction described in the proviso to
subparagraph (b); or
(e) individuals who, as of the Effective 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
the Effective Date whose election by the Board, was approved
by a vote of at least a majority of the Directors then
comprising the Incumbent Board shall be considered as though
such individual were a Director of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either (i) an
actual or threatened election contest (as such terms are used
in Rule 14A-11 of Regulation 14A promulgated under the
Exchange Act) with respect to the election or removal of
Directors or an actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board
or (ii) a plan or agreement to replace a majority of the
Directors of the Board then comprising the Incumbent Board.
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Solely with respect to any Award that is subject to Section 409A of the Code,
this definition is intended to comply with the definition of change in control
under Section 409A of the Code as in effect commencing January 1, 2005 and, to
the extent that the above definition does not so comply, such definition shall
be void and of no effect and, to the extent required to ensure that this
definition complies with the requirements of Section 409A of the Code, the
definition of such term set forth in regulations or other regulatory guidance
issued under Section 409A of the Code by the appropriate governmental authority
is hereby incorporated by reference into and shall form part of this Plan as
fully as if set forth herein verbatim and the Plan shall be operated in
accordance with the above definition of Change in Control as modified to the
extent necessary to ensure that the above definition complies with the
definition prescribed in such regulations or other regulatory guidance insofar
as the definition relates to any Award that is subject to Section 409A of the
Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations thereunder.
"Committee" shall mean the compensation committee of the Board.
"Company" shall mean NextWave Wireless Inc. or any successor thereto
that assumes and continues the Plan.
"Consultant" shall mean any individual, other than a Director or an
Employee, who renders consulting services to the Company or an Affiliate for a
fee.
"Director" shall mean a member of the Board.
"Effective Date" means the date that the Plan is adopted by the Board.
"Employee" shall mean any employee of the Company or an Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, with respect to Shares, the closing
sales price on any national securities exchange of a Share as of the trading day
immediately prior to the date of determination, or if the Shares are not listed
on a national securities exchange, the average of the closing bid and closing
ask prices quoted in the Over-The-Counter Market Summary immediately prior to
the date of determination (or if there is no trading in the Shares on such date,
the next preceding date on which there was trading) as reported in The Wall
Street Journal (or other reporting service approved by the Committee), unless a
different measure of Fair Market Value is determined by the Committee. In the
event the Shares are not publicly traded at the time a determination of its fair
market value is required to be made hereunder, the determination of fair market
value shall be made in good faith by the Committee.
"Liquidity Event" shall mean a Change in Control.
"Option" shall mean an option granted under Section 6(a) of the Plan.
Options granted under the Plan may constitute nonqualified stock options, but
shall not constitute "incentive options" for purposes of Section 422 of the
Code.
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"Other Stock-Based Award" shall mean an award granted pursuant to
Section 6(f) of the Plan that is not otherwise specifically provided for, the
value of which is based in whole or in part upon the value of a Share.
"Participant" shall mean any Employee, Director or Consultant granted
an Award under the Plan.
"Performance Award" shall mean any right granted under Section 6(c) of
the Plan.
"Performance Objectives" means the objectives, if any, established by
the Committee that are to be achieved with respect to an Award granted under
this Plan, which may be described in terms of Company-wide objectives, in terms
of objectives that are related to performance of a division, subsidiary,
department or function within the Company or an Affiliate in which the
Participant receiving the Award is employed or in individual or other terms, and
which will relate to the period of time determined by the Committee. Which
objectives to use with respect to an Award, the weighting of the objectives if
more than one is used, and whether the objective is to be measured against a
Company-established budget or target, an index or a peer group of companies,
shall be determined by the Committee in its discretion at the time of grant of
the Award. A Performance Objective need not be based on an increase or a
positive result and may include, for example, maintaining the status quo or
limiting economic losses.
"Person" shall mean an individual or a corporation, limited liability
company, partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
"Phantom Share" shall mean an Award of the right to receive Shares
issued at the end of a Restricted Period which is granted pursuant to Section
6(e) of the Plan.
"Plan" means the plan described in Section 1 of the Plan and set forth
in this document, as amended from time to time.
"Restricted Period" shall mean any period established by the Committee
with respect to an Award during which the Award remains subject to forfeiture,
is not exercisable by the Participant, and/or remains subject to the occurrence
of a Liquidity Event.
"Restricted Share" shall mean any Share, prior to the lapse of
restrictions thereon, granted under Sections 6(b) of the Plan.
"SEC" shall mean the Securities and Exchange Commission, or any
successor thereto.
"Shares" shall mean shares of common stock of the Company, and such
other securities or property as may become the subject of Awards under the Plan
or into which Shares may be converted.
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SECTION 3. Administration.
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The Plan shall be administered by the Committee. A majority of the
Committee shall constitute a quorum, and the acts of the members of the
Committee who are present at any meeting thereof at which a quorum is present,
or acts unanimously approved by the members of the Committee in writing, shall
be the acts of the Committee. No member of the Committee shall vote or act upon
any matter relating solely to himself. Grants of Awards to members of the
Committee must be ratified by the Board.
Subject to the terms of the Plan and applicable law, and in addition to
other express powers and authorizations conferred on the Committee by the Plan,
the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to a
Participant; (iii) determine the number of Shares to be covered by, or with
respect to which payments, rights, or other matters are to be calculated in
connection with, Awards; (iv) determine the terms and conditions of any Award;
(v) determine whether, to what extent, and under what circumstances Awards may
be settled or exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited, or suspended and the method or methods by
which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi)
determine whether, to what extent, and under what circumstances cash, Shares,
other securities, other Awards, other property, and other amounts payable with
respect to an Award shall be deferred either automatically or at the election of
the holder thereof or of the Committee; (vii) interpret and administer the Plan
and any instrument or agreement relating to an Award made under the Plan; (viii)
establish, amend, suspend, or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (ix) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations, and other decisions under or with respect to
the Plan or any Award shall be within the sole discretion of the Committee, may
be made at any time and shall be final, conclusive, and binding upon all
Persons, including the Company, any Affiliate, any Participant, any holder or
beneficiary of any Award, any stockholder of the Company and any Employee,
Director or Consultant. No Director or member of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any Award granted hereunder and the Directors and the members of the Committee
shall be entitled to indemnification and reimbursement by the Company and its
Affiliates in respect of any claim, loss, damage or expense (including legal
fees) arising therefrom to the full extent permitted by law.
SECTION 4. Shares Available for Awards.
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(a) Shares Available. Subject to adjustment as provided in Section
4(c), the number of Shares with respect to which Awards may be
granted under the Plan shall be 12.5 million. In the event
that any outstanding Award expires, is cancelled or otherwise
terminated, any rights to acquire Shares allocable to the
unexercised or unvested portion of such Award shall again be
available for the purposes of the Plan. In the event that
Shares issued under the Plan are reacquired by the Company
pursuant to any forfeiture provision, such Shares shall again
be available for the purposes of the Plan. In the event a
Participant pays for any Award through the delivery of
previously acquired Shares, the number of Shares available
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shall be increased by the number of Shares delivered by the
Participant.
(b) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may only be authorized and
unissued Shares and, unless permitted under Delaware law, may
not be treasury Shares. No fractional Shares shall be issued
under the Plan; payment for any fractional Shares shall be
made in cash.
(c) Adjustments. In the event that the Committee determines that
any distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of
Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other
securities of the Company, or other similar transaction or
event affects the Shares such that an adjustment is determined
by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and type of Shares (or
other securities or property) with respect to which Awards may
be granted, (ii) the number and type of Shares (or other
securities or property) subject to outstanding Awards, and
(iii) the grant or exercise price with respect to any Award
or, if deemed appropriate, make provision for a cash payment
to the holder of an outstanding Award; provided, however, the
Committee shall not take any action -------- ------- otherwise
authorized under this subparagraph (c) to the extent that (i)
such action would cause (A) the application of Section 409A or
162(m) of the Code to the Award or (B) create adverse tax
consequences under Section 409A or 162(m) of the Code should
either or both of those Code sections apply to the Award or
(ii) except as permitted in Section 7(c), materially reduce
the benefit to the Participant without the consent of the
Participant.
SECTION 5. Eligibility.
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Any Employee, Director or Consultant shall be eligible to be designated
a Participant and receive an Award under the Plan.
SECTION 6. Awards.
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(a) Options. Subject to the provisions of the Plan, the Committee
shall have the authority to determine the Participants to whom
Options shall be granted, the number of Shares to be covered
by each Option, the purchase price therefor and the conditions
and limitations applicable to the exercise of the Option,
including the following terms and conditions and such
additional terms and conditions (including Performance
Objectives), as the Committee shall determine, that are not
inconsistent with the provisions of the Plan.
(i) Exercise Price. The purchase price per Share
purchasable under an Option shall be determined by
the Committee at the time the Option is granted, but
shall not be less than 100% of the Fair Market Value
per Share as of the date of determination.
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(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be
exercised in whole or in part (which may include the
achievement of one or more Performance Objectives),
and the method or methods by which, and the form or
forms (which may include, without limitation, cash,
check acceptable to the Company, Shares already owned
for more than six months, outstanding Awards, other
securities or other property, or any combination
thereof, having a Fair Market Value on the exercise
date equal to the relevant exercise price) in which
payment of the exercise price with respect thereto
may be made.
(iii) Option Repricing. With approval of the Company's
stockholders, the Committee, in its absolute
discretion, may grant to holders of outstanding
Options, in exchange for the surrender and
cancellation of such Options, new Options having
exercise prices lower (or higher with any required
consent) than the exercise price provided in the
Options so surrendered and canceled and containing
such other terms and conditions as the Committee may
deem appropriate.
(b) Restricted Shares. Subject to the provisions of the Plan, the
Committee shall have the authority to determine the
Participants to whom Restricted Shares shall be granted, the
number of Restricted Shares to be granted to each such
Participant, the duration of the Restricted Period during
which, and the conditions, including Performance Objectives,
if any, under which if not achieved, the Restricted Shares may
be forfeited to the Company, and the other terms and
conditions of such Awards. Unless subject to the achievement
of Performance Objectives or a special determination is made
by the Committee as to a shorter Restricted Period, the
Restricted Period shall not be less than three years.
(i) Share Distribution Right ("SDR"). To the extent
provided by the Committee, in its discretion, a grant
of Restricted Shares may provide that distributions
made by the Company with respect to the Restricted
Shares shall be subject to the same forfeiture and
other restrictions as the Restricted Share and, if
restricted, such distributions shall be held, without
interest, until the Restricted Share vests or is
forfeited with the SDR being paid or forfeited at the
same time, as the case may be. Absent such a
restriction on the SDRs in the Award agreement, SDRs
shall be paid to the holder of the Restricted Share
without restriction.
(ii) Registration. Any Restricted Share may be evidenced
in such manner as the Committee shall deem
appropriate, including, without limitation,
book-entry registration or issuance of a Share
certificate or certificates. In the event any Share
certificate is issued in respect of Restricted Share
granted under the Plan, such certificate shall be
registered in the name of the Participant and shall
bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such
Restricted Share.
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(iii) Forfeiture and Restrictions Lapse. Except as
otherwise determined by the Committee or the terms of
the Award that granted the Restricted Share, upon
termination of a Participant's employment (as
determined under criteria established by the
Committee) for any reason during the applicable
Restricted Period, all Restricted Shares shall be
forfeited by the Participant and reacquired by the
Company. Unrestricted Shares, evidenced in such
manner as the Committee shall deem appropriate, shall
be issued to the holder of Restricted Shares promptly
after the applicable restrictions have lapsed or
otherwise been satisfied.
(iv) Transfer Restrictions. During the Restricted Period,
Restricted Shares will be subject to the limitations
on transfer as provided in Section 6(g)(iii).
(c) Performance Awards. The Committee shall have the authority to
determine the Participants who shall receive a Performance
Award, which shall be denominated as a cash amount (e.g., $100
per award unit) at the time of grant and confer on the
Participant the right to receive payment of such Award, in
whole or in part, upon the achievement of such Performance
Objectives during such performance periods as the Committee
shall establish with respect to the Award.
(i) Terms and Conditions. Subject to the terms of the
Plan and any applicable Award Agreement, the
Committee shall determine the Performance Objectives
to be achieved during any performance period, the
length of any performance period, the amount of any
Performance Award and the amount of any payment or
transfer to be made pursuant to any Performance
Award.
(ii) Payment of Performance Awards. Performance Awards, to
the extent earned, shall be paid (in cash and/or in
Shares, in the sole discretion of the Committee)
following the close of the performance period.
Payment described in the immediately preceding
sentence shall be made by the later of (i) the date
that is 2 1/2 months after the end of the
Participant's first taxable year in which the
Performance Award is earned and payable under the
Plan and (ii) the date that is 2 1/2 months after the
end of the Company's first taxable year in which the
Performance Award is earned and payable under the
Plan, and such payment shall not be subject to any
election by the Participant to defer the payment to a
later period.
(iii) General. Performance Objectives shall be designed to
be objective and shall be substantially uncertain at
the time of grant. The Committee may determine that
such Performance Awards shall be granted and/or
settled upon achievement of any one performance goal
or that two or more of the performance goals must be
achieved as a condition to the grant and/or
settlement of such Performance Awards. Performance
Objectives may differ among Performance Awards
granted to any one Participant or for Performance
Awards granted to different Participants.
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(iv) Performance Period Timing for Establishing
Performance Goals. Achievement of Performance
Objectives shall be measured over a performance
period of not less than six months and not more than
ten years, as specified by the Committee. Performance
Objectives in the case of any Award granted to a
Participant shall be established not later than 90
days after the beginning of any performance period
applicable to such Performance Awards, or at such
other date as may be determined by the Committee.
(v) Written Determinations. All determinations by the
Committee as to the establishment of Performance
Objectives, the amount of any Performance Award, and
the achievement of Performance Objectives relating to
Performance Awards shall be made in a written
agreement or other document covering the Performance
Award.
(d) Bonus Shares. The Committee shall have the authority, in its
discretion, to grant Bonus Shares to Participants. Each Bonus
Share shall constitute a transfer of an unrestricted Share to
the Participant, without other payment therefor, as additional
compensation for the Participant's services to the Company.
Bonus Shares shall be in lieu of a cash bonus that otherwise
would be granted.
(e) Phantom Shares. The Committee shall have the authority to
grant Awards of Phantom Shares to Participants upon such terms
and conditions as the Committee may determine; provided,
however, any such Award shall contain terms that are designed
to avoid application of Section 409A of the Code to the Award
or are designed to avoid adverse tax consequences under
Section 409A of the Code should that Code section apply to the
Award. Phantom Shares that are vested on the date of grant
shall be in lieu of a cash bonus that otherwise would have
been granted.
(i) Terms and Conditions. Each Phantom Share Award shall
constitute an agreement by the Company to issue or
transfer a specified number of Shares or pay an
amount of cash equal to a specified number of Shares,
or a combination thereof to the Participant in the
future, subject to the fulfillment during the
Restricted Period or other period set by the
Committee of such conditions, including Performance
Objectives, if any, as the Committee may specify at
the date of grant. During the Restricted Period, the
Participant shall not have any rights of ownership in
the Phantom Shares and shall not have any right to
vote such Shares.
(ii) Distributions. Any Phantom Shares Award may provide
that an amount equal to any distributions made by the
Company with respect to Shares during the Restricted
Period be credited in a cash bookkeeping account
(without interest) or that equivalent additional
Phantom Shares be awarded, which account or Shares
may be subject to the same restrictions as the
underlying Award or such other restrictions as the
Committee may determine. Notwithstanding any other
provision of the Plan to the contrary, any award of
distributions on Shares (described in the immediately
preceding sentence) shall contain terms that (i) are
designed to avoid application of Section 409A of the
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Code to the Award or (ii) are designed to avoid
adverse tax consequences under Section 409A should
that Code section apply.
(f) Other Stock-Based Awards. The Committee may also grant to
Participants an Other Stock-Based Award, which shall consist
of a right which is an Award denominated or payable in, valued
in whole or in part by reference to, or otherwise based on or
related to, Shares as is deemed by the Committee to be
consistent with the purposes of the Plan. Subject to the terms
of the Plan, including the Performance Objectives, if any,
applicable to such Award, the Committee shall determine the
terms and conditions of any such Other Stock-Based Award.
Notwithstanding any other provision of the Plan to the
contrary, any Other Stock-Based Award granted under the Plan
shall contain terms that (i) are designed to avoid application
of Section 409A of the Code or (ii) are designed to avoid
adverse tax consequences under Section 409A should that Code
section apply to such Award.
(g) General Provisions applicable to all Awards.
(i) Awards May Be Granted Separately or Together. Awards
may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in
substitution for any other Award granted under the
Plan or any award granted under any other plan of the
Company or any Affiliate. No Award shall be issued in
tandem with another Award if the tandem awards would
result in adverse tax consequences under Section 409A
of the Code. Awards granted in addition to or in
tandem with other Awards or awards granted under any
other plan of the Company or any Affiliate may be
granted either at the same time as or at a different
time from the grant of such other Awards or awards.
(ii) Forms of Payment by Company Under Awards. Subject to
the terms of the Plan and of any applicable Award
Agreement, payments or transfers to be made by the
Company or an Affiliate upon the grant, exercise or
payment of an Award may be made in such form or forms
as the Committee shall determine, including, without
limitation, cash, Shares, other securities, other
Awards or other property, or any combination thereof,
and may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case in
accordance with rules and procedures established by
the Committee. Such rules and procedures may include,
without limitation, provisions for the payment or
crediting of reasonable interest on installment or
deferred payments.
(iii) Limits on Transfer of Awards.
(A) Except as provided in (C) below, each Award,
and each right under any Award, shall be
exercisable only by the Participant during
the Participant's lifetime, or by the person
to whom the Participant's rights shall pass
by will or the laws of descent and
distribution. Notwithstanding anything in
the Plan to the contrary, an Award of
Options shall be transferable pursuant to a
domestic relations order.
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(B) Except as provided in (C) below, no Award
and no right under any such Award may be
assigned, alienated, pledged, attached, sold
or otherwise transferred or encumbered by a
Participant and any such purported
assignment, alienation, pledge, attachment,
sale, transfer or encumbrance shall be void
and unenforceable against the Company or any
Affiliate.
(C) Notwithstanding anything in the Plan to the
contrary, to the extent specifically
provided by the Committee with respect to a
grant, an Award of Options may be
transferred to immediate family members or
related family trusts, or similar entities
on such terms and conditions as the
Committee may establish.
(iv) Term of Awards. The term of each Award shall be for
such period as may be determined by the Committee;
provided, that in no event shall the term of any
Award exceed a period of 10 years from the date of
its grant.
(v) Stock Certificates. All certificates for Shares or
other securities of the Company or any Affiliate
delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such stop
transfer orders and other restrictions as the
Committee may deem advisable under the Plan or the
rules, regulations, and other requirements of the
SEC, any stock exchange upon which such Shares or
other securities are then listed, and any applicable
federal or state laws, and the Committee may cause a
legend or legends to be put on any such certificates
to make appropriate reference to such restrictions.
(vi) Delivery of Shares or other Securities and Payment by
Participant of Consideration. No Shares or other
securities shall be delivered pursuant to any Award
until payment in full of any amount required to be
paid pursuant to the Plan or the applicable Award
Agreement (including, without limitation, any
exercise price, tax payment or tax withholding
pursuant to Section 9(b) of the Plan) is received by
the Company. Such payment may be made by such method
or methods and in such form or forms as the Committee
shall determine, including, without limitation, cash,
reduction of a current payment of compensation with
the consent of the Participant, Shares, other
securities, other Awards or other property,
withholding of Shares, cashless exercise with
simultaneous sale, or any combination thereof;
provided that the combined value, as determined by
the Committee, of all cash and cash equivalents and
the Fair Market Value of any such Shares or other
property so tendered to the Company, as of the date
of such tender, is at least equal to the full amount
required to be paid pursuant to the Plan or the
applicable Award Agreement to the Company.
(vii) Notwithstanding any other provision of the Plan to
the contrary, any Award granted under the Plan shall
contain terms that (i) are designed to avoid
application of Section 409A of the Code to the Award
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or (ii) are designed to avoid adverse tax
consequences under Section 409A of the Code should
that Code Section apply to the Award.
SECTION 7. Amendment and Termination.
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Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
(a) Amendments to the Plan. The Board or the Committee may amend,
alter, suspend, discontinue, or terminate the Plan without the
consent of any Share holder, Participant, other holder or
beneficiary of an Award, or other Person; provided, however,
no such amendment may be made without Share holder approval to
the extent that such approval is required by (i) applicable
legal requirements or (ii) the requirements of any securities
exchange or market on which the Shares are listed.
Notwithstanding the foregoing, the Board or the Committee may
amend the Plan in such manner as it deems necessary in order
to permit Awards to meet the requirements of the Code or other
applicable laws, or to prevent adverse tax consequences to the
Company or the Participants.
(b) Amendments to Awards. The Committee may waive any conditions
or rights under, amend any terms of, or alter any Award
theretofore granted, provided no change in any Award (i) shall
(A) cause the application of Section 409A or 162(m) of the
Code to the Award or (B) create adverse tax consequences under
Section 409A or 162(m) of the Code should either or both of
those Code sections apply to the Award or (ii) except as
provided in Section 7(c), shall materially reduce the benefit
to Participant without the consent of such Participant.
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. Except as provided in Section 7(b), the
Committee is hereby authorized to make adjustments in the
terms and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4(c) of
the Plan) affecting the Company, any Affiliate, or the
financial statements of the Company or any Affiliate, or of
changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such
adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to
be made available under the Plan.
SECTION 8. Adjustments Upon Changes in Shares/Change in Control.
----------------------------------------------------
(a) If any change is made in the Shares subject to the Plan, or
subject to any Award, without the receipt of consideration by
the Company through merger, consolidation, reorganization,
recapitalization, reincorporation, Share distribution, stock
split, liquidating distribution, combination of Shares,
exchange of Shares, change in corporate structure or other
transaction not involving the receipt of consideration by the
Company), the Plan will be appropriately adjusted in the
class(es) and maximum number of Shares subject to the Plan
pursuant to, and subject to the limits of, Section 4(c) and
the outstanding Awards will be appropriately adjusted in the
class(es) and number of Shares and exercise price per Share
subject to such outstanding Awards. Such adjustments shall be
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made by the Board or the Committee, the determination of which
shall be final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as
a "transaction not involving the receipt of consideration by
the Company".)
(b) In the event of a Change in Control, (1) if the Company does
not survive as an independent entity or organization
(excluding as a subsidiary), the surviving entity or
organization or an affiliate of such surviving entity or
organization shall assume the Awards outstanding under the
Plan or substitute similar awards (including an award to
acquire the same consideration paid to the security holders of
the Company in the transaction effecting the Change in
Control) for those outstanding under the Plan, or (2) if the
Company continues as an independent entity or organization
(excluding as a subsidiary), such Awards shall continue in
full force and effect. In addition, upon a Change in Control
all Awards shall become fully vested immediately prior to the
Change in Control. In the event of a Change in Control in
which the Company does not survive as an independent entity or
organization (excluding as a subsidiary), if any surviving
entity or organization and its affiliates refuse to assume or
continue the Awards, or to substitute similar awards for those
outstanding under the Plan, then the Awards not exercised or
paid prior to such event shall terminate on such event.
SECTION 9. General Provisions.
------------------
(a) No Rights to Awards. No Employee, Director, Consultant or
other Person shall have any claim to be granted any Award, and
there is no obligation for uniformity of treatment of
Employees, Directors, Consultants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the
same with respect to each recipient.
(b) Withholding. The Company or any Affiliate is authorized to
withhold at the minimum statutory rate from any Award, from
any payment due or transfer made under any Award or under the
Plan or from any compensation or other amount owing to a
Participant the amount (in cash, Shares, other securities,
Shares that would otherwise be issued pursuant to such Award,
other Awards or other property) of any applicable federal,
state or local taxes payable in respect of an Award, its
exercise, the lapse of restrictions thereon, or any payment or
transfer under an Award or under the Plan and to take such
other action as may be necessary in the opinion of the Company
to satisfy all obligations for the payment of such taxes. In
addition, the Committee may provide, in an Award Agreement,
that the Participant may direct the Company to satisfy such
Participant's tax obligation through the "constructive" tender
of already-owned Shares or the withholding of Shares otherwise
to be acquired upon the exercise or payment of such Award.
(c) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in
the employ of the Company or any Affiliate. Further, the
Company or an Affiliate may at any time dismiss a Participant
from employment, free from any liability or any claim under
the Plan, unless otherwise expressly provided in the Plan or
in any Award Agreement.
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(d) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall
be determined in accordance with the laws of the State of
Delaware and applicable federal law.
(e) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable
in any jurisdiction or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed
or deemed amended to conform to the applicable laws, or if it
cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent
of the Plan or the Award, such provision shall be stricken as
to such jurisdiction, Person or Award and the remainder of the
Plan and any such Award shall remain in full force and effect.
(f) Other Laws. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its
sole discretion, it determines that the issuance of transfer
or such Shares or such other consideration might violate any
applicable law or regulation or entitle the Company to recover
the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder
or beneficiary in connection with the exercise of such Award
shall be promptly refunded to the relevant Participant, holder
or beneficiary.
(g) No Trust or Fund Created. Neither the Plan nor the Award shall
create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or
any Affiliate and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments
from the Company or any Affiliate pursuant to an Award, such
right shall be no greater than the right of any general
unsecured creditor of the Company or any Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee
shall determine whether cash, other securities, or other
property shall be paid or transferred in lieu of any
fractional Shares or whether such fractional Shares or any
rights thereto shall be canceled, terminated, or otherwise
eliminated.
(i) Securityholders' Agreement. The Committee may condition the
grant, payment and/or exercise of any Award upon the
Participant's already being, or becoming subject to, an
agreement between and among holders of securities in the
Company covering, inter alia, the transferability of the
Shares, rights of the Company to repurchase such Shares and
such other matters as the Committee deems appropriate;
provided, however, any such restrictions shall automatically
lapse upon the Shares becoming readily tradeable on a national
securities market.
(j) Securities Laws Compliance. Unless the Shares have been
registered under the Securities Act of 1933 (and, in the case
of any Participant who may be deemed an affiliate of the
Company for securities law purposes, such Shares have been
registered under such Act for resale by such Participant), or
the Company has determined that an exemption from registration
is available, the Company may require prior to and as a
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condition of the exercise or payment of any Award that (i) the
Participant desiring to exercise or receive payment such Award
give the Company written notice thereof and that such notice
may not be given by the Participant until 45 days thereafter
(which time period may be waived by the Committee in its sole
discretion) in order to allow the Company the opportunity to
provide to such Participant any disclosure materials, or to
make such filings, as may be required under federal and state
securities laws and (ii) the Participant desiring to exercise
or be paid such Award famish the Company with a written
representation in a form prescribed by the Committee to the
effect that such person is acquiring said Shares solely with a
view to investment for his or her own account and not with a
view to the resale or distribution of all or any part thereof,
and that such person will not dispose of any of such Shares
otherwise than in accordance with the provisions of Rule 144
under the Act unless and until either the Shares are
registered under the Act or the Company is satisfied that an
exemption from such registration is available.
(k) Headings. Headings are given to the Sections and subsections
of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or
any provision thereof.
(l) No Guarantee of Tax Consequences. None of the Board, the
Company nor the Committee makes any commitment or guarantee
that any federal, state or local tax treatment will apply or
be available to any person participating or eligible to
participate hereunder.
SECTION 10. Effective Date of the Plan.
--------------------------
The Plan, formerly known as the NextWave LLC 2005 Units Plan, became
effective on April 13, 2005. The Plan was renamed and amended by the Committee
in connection with the assumption of the Plan by NextWave Wireless Inc. on
November 13, 2006.
SECTION 11. Term of the Plan.
----------------
No Award shall be granted under the Plan after the 10th anniversary of
April 12, 2015 and the Plan shall expire on that date unless earlier terminated
pursuant to Section 7. However, unless otherwise expressly provided in the Plan
or in an applicable Award Agreement, any Award granted prior to such expiration
or termination, and the authority of the Board or the Committee to amend, alter,
adjust, suspend, discontinue, or terminate any such Award or to waive any
conditions or rights under such Award, shall extend beyond such expiration or
termination date.
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