Exhibit 10.4
AMENDED AND RESTATED
TRITEL, INC.
1999 STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
1. PURPOSE. The purpose of this Plan is to attract and retain qualified
individuals to serve as non-employee members of the Board of Directors of
Tritel, Inc. (the "Company") and to provide such persons with appropriate
incentives. The Company adopted the Plan effective as of January 7, 1999, and
has subsequently amended the Plan. Unless extended by amendment in accordance
with the terms of the Plan, no Option Rights will be granted hereunder after the
tenth anniversary of such effective date.
2. DEFINITIONS. As used in this Plan,
"BOARD" means the Board of Directors of the Company.
"CHANGE IN CONTROL" means a change in control of the Company, which
will be deemed to have occurred after the effective date of this Plan if:
(i) any "person" as such term is used in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof except that such term shall not include (A) the Company
or any of its subsidiaries, (B) any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of its
affiliates, (C) an underwriter temporarily holding securities pursuant
to an offering of such securities, (D) any corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of Common Shares, or (E) any person
or group as used in Rule 13d-1(b) under the Exchange Act, is or becomes
the Beneficial Owner, as such term is defined in Rule 13d-3 under the
Exchange Act, directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person any
securities acquired directly from the Company or its affiliates other
than in connection with the acquisition by the Company or its
affiliates of a business) representing 50% or more of the combined
voting power of the Company's then outstanding securities.
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board,
and any new director (other than (A) a director designated by a person
who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii), or (iv) of this definition
or (B) a director whose initial assumption of office is in connection
with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of
directors of the Company) whose election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the Company with
any other corporation, other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) in combination with the
ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company,
at least 75% of the combined voting power of the securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no person (as defined above) is or
becomes the beneficial owner, directly or indirectly, of securities of
the Company (not including in the securities beneficially owned by such
person any securities acquired directly from the Company or its
affiliates other than in connection with the acquisition by the Company
or its affiliates of a business) representing 25% or more of the
combined voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets (or any transaction
having a similar effect) other than a sale or disposition by the
Company of all or substantially all of the Company's assets to an
entity, at least 75% of the combined voting power of the voting
securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, no change in voting power triggered solely by the
holders of shares of Voting Preference Stock of the Company beginning to vote as
a class with holders of Class A Voting Common Stock of the Company shall be
deemed a Change in Control under this Plan.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMON SHARES" means (i) shares of the Class A Common Stock, par value
$.01 per share, of the Company and (ii) any security into which Common Shares
may be converted by reason of any transaction or event of the type referred to
in Section 6 of this Plan.
"DATE OF GRANT" means the date specified by the Board on which a grant
of Option Rights shall become effective, which shall not be earlier than the
date on which the Board takes action with respect thereto.
"DISABILITY" means any physical or mental illness, injury or condition
that would qualify a Participant for benefits under any long-term disability
benefit plan maintained by the Company or any Subsidiary and applicable to such
Participant (or, if the Participant is not eligible for any such plan, to senior
executive officers of the Company).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"MARKET VALUE PER SHARE" means the fair market value of the Common
Shares as determined by the Board from time to time.
"OPTION PRICE" means the purchase price payable upon the exercise of an
Option Right.
"OPTION RIGHT" means the right to purchase Common Shares from the
Company upon the exercise of a nonqualified stock option granted pursuant to
Section 4 of this Plan.
"PARTICIPANT" means an individual who, at the time of any automatic
award of Option Rights pursuant to Section 4 below, is a member of the Board and
both a "non-employee director" within the meaning of Rule 16b-3 and an "outside
director" within the meaning of Section 162(m) of the Code.
"RULE 16B-3" means Rule 16b-3, as promulgated and amended from time to
time by the Securities and Exchange Commission under the Exchange Act, or any
successor rule to the same effect.
"SUBSIDIARY" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Company has a direct or
indirect ownership or other equity interest.
3. SHARES AVAILABLE UNDER THE PLAN.
(a) Subject to adjustment as provided in Section 6 of this Plan, the
number of Common Shares which may be issued or transferred upon the exercise of
Option Rights shall not in the aggregate exceed 100,000 Common Shares, which may
be Common Shares of original issuance or Common Shares held in treasury or a
combination thereof. For the purposes of this Section 3(a):
(i) Upon payment in cash of the benefit provided by any award
granted under this Plan, any Common Shares that were covered by that award
shall again be available for issuance or transfer hereunder; and
(ii) Upon the full or partial payment of any Option Price by the
transfer to the Company of Common Shares or upon satisfaction of tax
withholding obligations in connection with any such exercise or any other
payment made or benefit realized under this Plan by the transfer or
relinquishment of Common Shares, there shall be deemed to have been issued
or transferred under this Plan only the net number of Common Shares
actually issued or transferred by the Company less the number of Common
Shares so transferred or relinquished.
4. OPTION RIGHTS. Subject to adjustment as provided in Section 6 of
this Plan, the Board may grant to each Participant Option Rights to purchase
Common Shares upon such terms and conditions as the Board shall determine in
accordance with the following provisions:
(a) Each grant shall specify an Option Price per Common Share, which
shall equal the Market Value per Share on the Date of Grant.
(b) Each grant shall specify the form of consideration to be paid in
satisfaction of the Option Price and the manner of payment of such
consideration, which consist of (i) cash in the form of currency or check or
other cash equivalent acceptable to the Company, (ii) nonforfeitable,
unrestricted Common Shares, which are already owned by the Participant and (iii)
any combination of the foregoing.
(c) Any grant shall, if there is then a public market for the Common
Shares, provide for deferred payment of the Option Price from the proceeds of
sale through a broker of some or all of the Common Shares to which the exercise
relates.
(d) Successive grants may be made to the same Participant regardless of
whether any Option Rights previously granted to the Participant remain
unexercised.
(e) Each grant shall specify that the Option Rights awarded thereby
shall become exercisable in full no later than upon the earliest to occur of (i)
the 10th anniversary of the Date of Grant, (ii) the date of the Participant's
death or Disability, and (iii) the effective date of a Change in Control,
provided, in each case, that the Participant remains in continuous service with
the Company until such date.
(f) Option Rights granted pursuant to this Section 4 shall be
nonqualified stock options.
(g) No Option Right granted pursuant to this Section 4 may be exercised
more than 10 years from the Date of Grant.
(h) Each grant shall be evidenced by an agreement, which shall be
executed on behalf of the Company by any designated officer thereof and
delivered to and accepted by the Participant and shall contain such terms and
provisions as the Board may determine consistent with this Plan.
5. TRANSFERABILITY. No Option Right granted under this Plan may be
transferred by a Participant, except (i) by will or the laws of descent and
distribution, (ii) to one or more members of the Participant's immediate family,
or (iii) to a trust established for the benefit of the Participant and/or one or
more members of the Participant's immediate family. Option Rights granted under
this Plan may not be exercised during a Participant's lifetime except by (i) the
Participant, (ii) a transferee of the Participant described in the preceding
sentence, or (iii) in the event of the legal incapacity of the Participant or
any such transferee, by the guardian or legal representative of the Participant
or such transferee (as applicable) acting in a fiduciary capacity on behalf
thereof under state law and court supervision.
6. ADJUSTMENTS.
(a) The Board may make or provide for such adjustments in the number of
Common Shares covered by outstanding Option Rights granted hereunder, the Option
Prices per Common Share applicable to any such Option Rights, and the kind of
shares (including shares of another issuer) covered thereby, as the Board may in
good faith determine to be equitably required in order to prevent dilution or
expansion of the rights of Participants that otherwise would result from (i) any
stock dividend, stock split, combination of shares, recapitalization or similar
change in the capital structure of the Company or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial
or complete liquidation or other distribution of assets, issuance of warrants or
other rights to purchase securities or any other corporate transaction or event
having an effect similar to any of the foregoing. In the event of any such
transaction or event, the Board may provide in substitution for any or all
outstanding awards under this Plan such alternative consideration as it may in
good faith determine to be equitable under the circumstances and may require in
connection therewith the surrender of all awards so replaced. Moreover, the
Board may on or after the Date of Grant provide in the agreement evidencing any
award under this Plan that the holder of the award may elect to receive an
equivalent award in respect of securities of the surviving entity of any merger,
consolidation or other transaction or event having a similar effect, or the
Board may provide that the holder will automatically be entitled to receive such
an equivalent award. The Board may also make or provide for such adjustments in
the maximum numbers of Common Shares specified in Section 3 of this Plan as the
Board may in good faith determine to be appropriate in order to reflect any
transaction or event described in this Section 6.
(b) If another corporation is merged into the Company or the Company
otherwise acquires another corporation, the Board may elect to assume under this
Plan any or all outstanding stock options or other awards granted by such
corporation under any stock option or other plan adopted by it prior to such
acquisition. Such assumptions shall be on such terms and conditions as the Board
may determine; PROVIDED, HOWEVER, that the awards as so assumed do not contain
any terms, conditions or rights that are inconsistent with the terms of this
Plan. Unless otherwise determined by the Board, such awards shall not be taken
into account for purposes of the limitations contained in Section 3 of this
Plan.
7. FRACTIONAL SHARES. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions or for the settlement thereof in cash.
8. WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for the withholding are insufficient, it
shall be a condition to the receipt of any such payment or the realization of
any such benefit that the Participant or such other person make arrangements
satisfactory to the Company for payment of the balance of any taxes required to
be withheld. At the discretion of the Board, any such arrangements may without
limitation include voluntary or mandatory relinquishment of a portion of any
such payment or benefit or the surrender of outstanding Common Shares. The
Company and any Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
9. ADMINISTRATION OF THE PLAN.
(a) This Plan shall be administered by the Board. A majority of the
Board shall constitute a quorum, and the acts of the members of the Board who
are present at any meeting thereof at which a quorum is present, or acts
unanimously approved by the members of the Board in writing, shall be the acts
of the Board.
(b) The interpretation and construction by the Board of any provision
of this Plan or any agreement, notification or document evidencing the grant of
Option Rights, and any determination by the Board pursuant to any provision of
this Plan or any such agreement, notification or document, shall be final and
conclusive. No member of the Board shall be liable for any such action taken or
determination made in good faith.
10. AMENDMENTS AND OTHER MATTERS.
(a) This Plan may be amended from time to time by the Board; PROVIDED,
HOWEVER, that except as expressly authorized by this Plan, no such amendment
shall cause this Plan to cease to satisfy any applicable condition of Rule 16b-3
without the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the Board may
cancel any agreement evidencing Option Rights or any other award granted under
this Plan. In the event of any such cancellation, the Board may authorize the
granting of new Option Rights or other awards hereunder, which may or may not
cover the same number of Common Shares as had been covered by the cancelled
Option Rights or other award, at such Option Price, in such manner and subject
to such other terms, conditions and discretion as would have been permitted
under this Plan had the cancelled Option Rights or other award not been granted.
(c) This Plan shall not confer upon any Participant any right with
respect to continuance of service with the Board, the Company or any Subsidiary
and shall not interfere in any way with any right that the Company, its
stockholders or any Subsidiary would otherwise have to terminate any
Participant's service at any time.
(d) Any award that may be made pursuant to an amendment to this Plan
that shall have been adopted without the approval of the stockholders of the
Company shall be null and void if it is subsequently determined that such
approval was required under the terms of the Plan or applicable law.
(e) Unless otherwise determined by the Board, this Plan is intended to
comply with Rule 16b-3 at all times that awards hereunder are subject to such
Rule.
