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EXHIBIT 10.23
CRICKET COMMUNICATIONS INC.
STOCK OPTION GRANT NOTICE
CRICKET COMMUNICATIONS INC. (the "Company"), pursuant to its 1999 Stock Option
Plan (the "Plan") hereby grants to the Optionee named below a stock option to
purchase the number of shares of the Company's common stock set forth below. As
designated below, this stock option either is or is not intended to qualify for
the federal income tax benefits available to an "incentive stock option" within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
This option is subject to all of the terms and conditions as set forth herein
and in the Stock Option Agreement and the Plan, which are incorporated herein in
their entirety.
Optionee/Employee #: ________ Grant No.: _____
Date of Grant: ________ Shares Subject to Option: _____
Exercise Price Per Share: ________ Expiration Date: _____
TYPE OF OPTION: ___ Incentive Stock Option ___ Nonstatutory Stock Option
VESTING SCHEDULE
Exercisable Shares Vesting Date Expiration Date
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ADDITIONAL TERMS/ACKNOWLEDGMENTS: The undersigned Optionee acknowledges receipt
of, and understands and agrees to the terms of the following: this Grant Notice,
the Stock Option Agreement and the Plan. Optionee further acknowledges that as
of the Date of Grant, this Grant Notice, the Stock Option Agreement and the Plan
set forth the entire understanding between Optionee and the Company regarding
the acquisition of stock in the Company and supersedes all prior oral and
written agreements pertaining to this particular option.
CRICKET COMMUNICATIONS INC. OPTIONEE:
By: Name:
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Harvey P. White
Title: President Date:
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Date:
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Attachment I: Option Agreement
Attachment II: 1999 Stock Option Plan
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CRICKET COMMUNICATIONS INC.
STOCK OPTION AGREEMENT
Pursuant to the Grant Notice and this Stock Option Agreement, the Company
has granted you an option to purchase the number of shares of the Company's
common stock ("Common Stock") indicated in the Grant Notice at the exercise
price indicated in the Grant Notice. Defined terms not explicitly defined in
this Stock Option Agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of this option are as follows:
1. Vesting. Subject to the limitations contained herein, this option will
vest as provided in the Grant Notice, provided that vesting will cease
upon the termination of your Continuous Service, unless such termination
is due to Disability or death. If termination of Continuous Service is due
to Disability or death, then this option will continue to vest and remain
outstanding as provided in paragraph 5 below.
2. Method of Payment. Payment of the exercise price by cash (or check) is due
upon exercise of all or any part of this option which has become
exercisable by you. Notwithstanding the foregoing, this option may be
exercised pursuant to a program developed under Regulation T as
promulgated by the Federal Reserve Board which, prior to the issuance of
Common Stock results in either the receipt of cash (or check) by the
Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company. Payment of the exercise price may also be
made by a combination of the above methods.
3. Exercise for Minimum Number of Shares. The minimum number of shares with
respect to which this option may be exercised at any one time is one
hundred (100), except (a) as to an installment subject to exercise, as set
forth in paragraph 1, which amounts to fewer than one hundred (100)
shares, in which case, as to the exercise of that installment, the number
of such shares in such installment shall be the minimum number of shares,
and (b) with respect to the final exercise of this option, this minimum
shall not apply. This option may only be exercised for whole shares.
4. Securities Law Compliance. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares
issuable upon exercise of this option are then registered under the
Securities Act or, if such shares are not then so registered, the Company
has determined that such exercise and issuance would be exempt from the
registration requirements of the Securities Act.
5. Term.
(a) The term of this option commences on the Date of Grant (as specified
in the Grant Notice) and expires upon the earliest of:
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(i) the Expiration Date indicated in the Grant Notice;
(ii) the tenth (10th) anniversary of the Date of Grant; or
(iii) thirty (30) days after the termination of your Continuous
Service for any reason other than Disability or death,
provided that if the option is not exercisable during any part
of such thirty (30) day period solely because of the condition
set forth in paragraph 4 (Securities Law Compliance), then the
option shall not expire until the earlier of the Expiration
Date or until it shall have been exercisable for an aggregate
period of thirty (30) days after the termination of Continuous
Service.
(b) Notwithstanding the foregoing:
(i) If your Continuous Service terminates due to your Disability,
then this option will continue under its original terms and
expire upon the Expiration Date indicated in the Grant Notice.
(ii) If your Continuous Service terminates due to (x) your death,
or (y) your Disability and you subsequently die prior to the
Expiration Date, then this option shall immediately become
fully vested and exercisable for all of the option shares as
of the date of your death. This option will then expire on the
earlier occurring of either the Expiration Date or twelve (12)
months after the date of your death.
(c) If this option is designated an incentive stock option, then to
obtain the federal income tax advantages associated with an
"incentive stock option," the Code requires that at all times
beginning on the Date of Grant and ending on the day three (3)
months before the date of exercise, you must be an employee of
the Company or a "parent corporation" or a "subsidiary
corporation" (as those terms are defined in Section 424 of the
Code), except in the event of your death or your Disability. The
Company does not represent or guarantee that this option will
necessarily be treated as an "incentive stock option."
6. Exercise.
(a) You may exercise the vested portion of this option during its term
by delivering a notice of exercise (in a form designated by the
Company) together with the exercise price to the Secretary of the
Company, or to such other person as the Company may designate,
during regular business hours, together with such additional
documents as the Company may then require pursuant to subparagraph
9(e) of the Plan.
(b) By exercising this option you agree that as a condition to any
exercise of this option, the Company may require you to enter an
arrangement providing for the payment by you to the Company of
any tax withholding obligation of the Company arising by reason
of (1) the exercise of this option; (2) the lapse of any
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substantial risk of forfeiture to which the shares are subject at
the time of exercise; or (3) the disposition of shares acquired
upon such exercise.
(c) If this option is an incentive stock option, then by exercising this
option you agree to notify the Company in writing within fifteen
(15) days after the date of any disposition of any of the shares of
the Common Stock issued upon exercise of this option that occurs
within two (2) years after the Date of Grant or within one (1) year
after such shares of Common Stock are transferred upon exercise of
this option.
7. Transferability. This option is not transferable, except by will or by the
laws of descent and distribution, and is exercisable during your life only
by you.
8. Market Stand-Off Provisions.
(a) In connection with any underwritten public offering by the
Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, including
the Company's initial public offering, you shall not sell, make
any short sale of, loan, hypothecate, pledge, grant any option
for the purchase of, or otherwise dispose or transfer for value
or otherwise agree to engage in any of the foregoing transactions
with respect to, any Common Stock (or other equity securities of
the Company) acquired upon the exercise of the Option (the
"Purchased Shares") without the prior written consent of the
Company or its underwriters. Such limitations shall be in effect
for such period of time from and after the effective date of such
registration statement as may be requested by the Company or such
underwriters, but in no event shall such period exceed one
hundred-eighty (180) days.
(b) You shall be subject to the market stand-off provisions of this
Section 8 provided and only if the officers and directors of the
Company are also subject to similar arrangements.
(c) In the event of any stock dividend, stock split, recapitalization or
other change affecting any of the Company's outstanding equity
securities effected as a class without receipt of consideration,
then any new, substituted or additional securities distributed with
respect to the Purchased Shares shall be immediately subject to the
provisions of this Section 8, to the same extent the Purchased
Shares are at such time covered by such provisions.
9. Right Of First Refusal.
(a) Grant. You hereby grant to the Company rights of first refusal (the
"First Refusal Right"), exercisable in connection with any proposed
transfer of the Purchased Shares by you. For purposes of this
Section 9, the term "transfer" shall include any sale, assignment or
other disposition for value of the Purchased Shares intended to be
made by you.
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(b) Notice of Intended Disposition. If you desire to accept a bona fide
third-party offer for the transfer of any or all of the Purchased
Shares (the shares subject to such offer are referred to as the
"Target Shares"), then you shall promptly: (i) deliver to the
Secretary of the Company written notice (the "Disposition Notice")
of the terms and conditions of the offer, including the purchase
price and the identity of the third-party offeror; and (ii) provide
satisfactory proof that the disposition of the Target Shares to such
third-party offeror would not violate the provisions of this
Agreement or the Plan and would be in compliance with applicable
law, including without limitation, all federal and state securities
laws.
(c) Exercise of Right. Until the later of:
(i) thirty (30) days following the Company's receipt of the
Disposition Notice, and
(ii) ten (10) days after the determinative cash valuation has been
made pursuant to this Section 9(c), if the purchase price
specified in the Disposition Notice is payable in property
other than cash or evidences of indebtedness (the "Exercise
Period"),
the Company shall have the right to repurchase any or all of the
Target Shares specified in the Disposition Notice upon the same
terms and conditions specified therein or upon terms and conditions
which do not materially vary from those specified therein. Such
right shall be exercisable by delivery of written notice (the
"Exercise Notice") to you prior to the expiration of such Exercise
Period. If such right is exercised with respect to all the Target
Shares specified in the Disposition Notice, then the Company (or its
assignees) shall effect the repurchase of the Target Shares,
including payment of the purchase price, not more than ten (10) days
after delivery of the Exercise Notice; and at such time you shall
deliver to the Company the certificates representing the Target
Shares to be repurchased, each certificate to be properly endorsed
for transfer. Should the purchase price specified in the Disposition
Notice be payable in property other than cash or evidences of
indebtedness, the Company (or its assignees) shall have the right to
pay the purchase price in the form of cash equal in amount to the
fair value of such property. If you and the Company (or its
assignees) cannot agree on such cash value within ten (10) days
after the Company's receipt of the Disposition Notice, the valuation
shall be made by an appraiser of recognized standing selected by you
and the Company (or its assignees) or, if they cannot agree on an
appraiser within twenty (20) days after the Company's receipt of the
Disposition Notice, each shall select an appraiser of recognized
standing and the two appraisers shall designate a third appraiser of
recognized standing, whose appraisal shall be determinative of such
value. The cost of such appraisal shall be shared equally by you and
the Company.
(d) Non-Exercise of Right. If the Exercise Notice is not given to you at
or prior to the expiration of the Exercise Period, you shall have a
period of sixty (60) days
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thereafter in which to sell or otherwise dispose of the Target
Shares to the third-party offeror identified in the Disposition
Notice upon the terms and conditions (including the purchase price)
no more favorable to such third-party offeror than those specified
in the Disposition Notice; provided, however, that any such sale or
disposition must not violate the provisions of this Agreement or the
Plan or applicable law, including all federal and state securities
laws. The third-party offeror shall acquire the Target Shares
subject to the Company's First Refusal Right hereunder, applicable
securities law restrictions and the market stand-off provisions of
Section 8. If Optionee does not effect such sale or disposition of
the Target Shares, the Target shares shall remain subject to this
Section 9 until such right lapses in accordance with Section 9(f).
(e) Partial Exercise of Right. If the Company (or its assignees) makes a
timely exercise of the First Refusal Right with respect to a
portion, but not all, of the Target Shares specified in the
Disposition Notice, then (i) the Company (or its assignees) shall
effect the repurchase of such portion of the Target Shares,
including payment of the purchase price, not more than ten (10) days
after delivery of the Exercise Notice; and at such time you shall
deliver to the Company the certificates representing the Target
Shares to be repurchased, each certificate to be properly endorsed
for transfer and (ii) you shall have the option, exercisable by
written notice to the Company delivered within sixty (60) days after
the date of the Disposition Notice, to effect the sale of all of the
remaining Target Shares to the third-party offeror identified in the
Disposition Notice, but in full compliance with the requirements of
Section 9(d), as if the Company did not exercise the First Refusal
Right hereunder.
(f) Termination of First Refusal Rights. The First Refusal Right with
respect to any Purchased Shares shall expire upon the consummation
of an initial public offering of the Company's Common Stock which is
registered under the Securities Act.
10. Option Not a Service Contract. This option is not an employment or service
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the service of the
Company or an Affiliate, or of the Company or an Affiliate to continue
your service with the Company or the Affiliate. In addition, nothing in
this option shall obligate the Company or any Affiliates, their
stockholders, Board of Directors, Officers or Employees to continue any
relationship as a Director or Consultant for the Company or any Affiliate.
11. Notices. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after
deposit in the United States mail, postage prepaid, addressed to you at
the last address you provided to the Company.
12. Restriction on Pledge or Encumbrance. Until the consummation of an initial
public offering of the Company's Common Stock which is registered under
the Securities Act,
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you shall not pledge or otherwise encumber, nor permit to exist any liens
or other charges against, any of your Purchased Shares.
13. Restrictive Legends and Stop-Transfer Orders. Optionee understands and
agrees that the Company may cause restrictive legends to be placed upon
any certificate(s) evidencing ownership of Purchased Shares relating to
the obligations of and restrictions on the holder thereof arising under
this Agreement and any other legends that may be necessary or
appropriate under state or federal securities laws. Optionee agrees
that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate "stop transfer" instructions
to its transfer agent, if any, and that, if the Company transfers its
own securities, it may make appropriate notations to the same effect in
its own records.
14. Governing Plan Document. This option is subject to all the provisions of
the Plan, the provisions of which are hereby made a part of this option,
and is further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted
pursuant to the Plan. In the event of any conflict between the provisions
of this option and those of the Plan, the provisions of the Plan shall
control.
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