EXHIBIT 10.5
NTELOS Inc.
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Incentive Stock Option Agreement
No. of shares subject to option: _______
THIS AGREEMENT (this "Agreement") dated the __ day of ______,
200__, between NTELOS Inc., a Virginia corporation (the "Company"), and
____________ ("Participant"), is made pursuant and subject to the provisions of
the Company's 1997 Stock Compensation Plan (as amended, the "Plan"), a copy of
which is attached. All terms used herein that are defined in the Plan have the
same meaning given them in the Plan.
1. Grant of Option. Pursuant to the Plan, the Company, on the date hereof,
granted to Participant, subject to the terms and conditions of the Plan and
subject further to the terms and conditions herein set forth, the right and
option to purchase from the Company all or any part of an aggregate of ______
shares of Common Stock at the option price of $_____ per share, being not less
than the Fair Market Value per share of the Common Stock on the date of grant.
This option is intended to be an "incentive stock option" within the meaning of
Section 422 of the Code. Such option will be exercisable as hereinafter
provided.
2. Terms and Conditions. This option is subject to the following terms and
conditions:
(a) Expiration Date. This option shall expire ten years from the date
of grant of this option.
(b) Exercise of Option. Except as provided in paragraphs 3, 4, and 5,
this option shall be exercisable with respect to all or part of ____ shares
beginning on the first anniversary of the date of grant, with respect to all or
part of an additional ____ shares beginning on the second anniversary of the
date of the grant, with respect to all or part of an additional ____ shares
beginning on the third anniversary of the date of the grant, and with respect to
all or part of the remaining ____ shares beginning on the fourth anniversary of
the date of grant. Once this option has become exercisable in accordance with
the preceding sentence it shall continue to be exercisable until the first to
occur of the termination of Participant's rights hereunder pursuant to paragraph
3, 4, or 5, or the Expiration Date. A partial exercise of this option shall not
affect Participant's right to exercise this option with respect to the remaining
shares, subject to the conditions of the Plan and this Agreement.
(c) Method of Exercising and Payment for Shares. This option shall be
exercised by written notice delivered to the attention of the Company's
Secretary at the Company's principal office in Waynesboro, Virginia. The
exercise date shall be (i) in the case of notice by mail, the date of postmark,
or (ii) if delivered in person, the date of delivery. Such notice shall be
accompanied by payment of the option price in full, in cash or cash equivalent
acceptable to the Committee, or by the surrender of shares of Common Stock with
an aggregate Fair Market Value (determined as of the day preceding the exercise
date) which, together with any cash or cash
equivalent paid, is not less than the option price for the number of shares of
Common Stock for which this option is being exercised.
(d) Nontransferability. This option is nontransferable except by will
or by the laws of descent and distribution. During Participant's lifetime, this
option may be exercised only by Participant.
3. Exercise in the Event of Death. This option shall be exercisable with
respect to the shares of Common Stock granted under this option, reduced by the
number of shares for which the option was previously exercised, in the event
Participant dies while employed by the Company or an Affiliate and prior to the
Expiration Date. In that event, it may be exercised by Participant's estate, or
the person or persons to whom his rights under this option shall pass by will or
the laws of descent and distribution. Participant's estate or such persons may
exercise this option within one year of Participant's death or during the
remainder of the option period preceding the Expiration Date, whichever is
shorter.
4. Exercise in the Event of Permanent and Total Disability. This option
shall be exercisable with respect to the shares granted under this option,
reduced by the number of shares for which the option was previously exercised,
if Participant becomes permanently and totally disabled within the meaning of
Section 22(e)(3) of the Code ("Permanently and Totally Disabled") while employed
by the Company or an Affiliate and prior to the Expiration Date. In that event,
Participant may exercise this option within one year of the date he ceases to be
employed by the Company or an Affiliate as a result of his becoming Permanently
and Totally Disabled or, during the period preceding the Expiration Date or
whichever is shorter.
5. Exercise After Termination of Employment. If Participant terminates his
employment with the Company or an Affiliate on or after his Early Retirement
Date under the Revised Retirement Plan for the Employees of NTELOS Inc.
("Retirement") and prior to the Expiration Date, this option may be exercised
with respect to the shares granted under this option, reduced by the number of
shares for which this option was previously exercised, within two years of the
date he ceases to be employed by the Company or an Affiliate as a result of
Retirement or, during the period preceding the Expiration Date or whichever is
shorter. Except as provided in paragraphs 3 and 4 and the preceding sentence,
this option may not be exercised after Participant ceases to be employed by the
Company or an Affiliate.
6. Change in Control. The option will become fully exercisable upon a
"Change in Control".
For purposes of this Agreement, a "Change in Control" will result from
any of the following events:
(a) any "person," as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than
the Company, any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any company owned, directly or indirectly, by
the shareholders of the Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the owner or
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of Company securities representing more than 30% of the combined
voting power of the then outstanding securities;
(b) during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (a), (c), (d) or (e) of this
subsection) whose election by the Board or nomination for election by the
Company's shareholders was approved by a vote of a majority of the directors
then still in office who either (l) were directors at the beginning of such
period or (2) were so elected or nominated with such approval, cease for any
reason to constitute at least a majority of the Board;
(c) the shareholders of the Company approve a merger or consolidation
of the Company with any other Company and such merger or consolidation is
consummated, other than (l) 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) more than 50% of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation or (2) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (as hereinabove defined) acquires more
than 30% of the combined voting power of the Company's then outstanding
securities;
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets and such liquidation
or sale of assets is consummated; or
(e) the sale, transfer, conveyance or other disposition of all or
substantially all of the assets (whether by asset sale, stock sale, merger,
combination or otherwise) of one or more of the Company's Material Lines of
Business;
provided, however, a Change in Control shall not include an acquisition,
directly or indirectly, of more than 30% of the combined voting power of the
Company's then outstanding securities by Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, VIII,
L.P. or Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, IX, L.P. (collectively "WCAS"), any
Controlled Entity, and any Permitted Transferee (a Permitted Transferee,
together with WCAS and their Controlled Entities, the "WCAS Entities"), pursuant
to the Amended and Restated Shareholders Agreement dated as of October 23, 2000,
as amended, restated or modified from time to time in accordance with the terms
thereof (the "Shareholders Agreement") but only so long as (i) the WCAS Entities
shall comply with Article 5 of the Shareholders Agreement and (ii) the WCAS
Entities', in the aggregate, do not own more than 40% of the Company's then
outstanding securities or more than 37.5% of the voting power of the Company's
then outstanding securities. For purposes of
this Agreement, "Controlled Entity" shall mean any entity in which WCAS owns the
majority of the voting shares or securities or has the ability (whether through
the ownership of voting securities, contract or otherwise) to elect a majority
of the board of directors or other similar governing body or of which WCAS has
the authority to control or direct the investment decisions. For purposes of
this Agreement, "Permitted Transferee" shall mean any person that shall become a
party to or agree to be bound by the terms of the Shareholders Agreement by
acquiring any of the Company's common stock, warrants or securities convertible
or exchangeable into shares of the Company's common stock, from any other person
who is a party to or agrees to be bound by the terms of the Shareholders
Agreement.
For purposes of this Agreement, "Material Line of Business" means any line or
lines of business or service or group of services which represent(s) in the
aggregate either 25% or more of the Company's consolidated revenues or 25% or
more of the Company's consolidated EBITDA (earnings before interest, taxes,
depreciation and amortization) for the twelve month period ended on the last day
of the most recently ended fiscal quarter for the Company.
7. Notice. Any notice or other communication given pursuant to this
Agreement shall be in writing and shall be personally delivered or mailed by
United States registered or certified mail, postage prepaid, return receipt
requested, to the following addresses:
If to the Company:
NTELOS Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Participant: _________________
((Address1))
((Address2))
8. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Participant to a fractional share such
fraction shall be disregarded.
9. No Right to Continued Employment. This option does not confer upon
Participant any right with respect to continuance of employment by the Company
or an Affiliate, nor shall it interfere in any way with the right of the Company
or an Affiliate to terminate his employment at any time.
10. Change in Capital Structure. The terms of this option shall be adjusted
as the Committee determines is equitably required in the event the Company
effects one or more share dividends, share split-ups, subdivisions or
consolidations of shares or other similar changes in capitalization.
11. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia.
12. Conflicts. In the event of any conflict between the provisions of the
Plan as in effect on the date hereof and the provisions of this Agreement, the
provisions of the Plan shall govern. All references herein to the Plan shall
mean the Plan as in effect on the date hereof.
13. Participant Bound by Plan. Participant hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all the terms and provisions thereof.
14. Binding Effect. Subject to the limitations stated above and in the
Plan, this Agreement shall be binding upon and inure to the benefit of the
legatees, distributees, and personal representatives of Participant and the
successors of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by a duly authorized officer, and Participant has affixed his signature
hereto.
NTELOS Inc.
By:______________________________________
______________________________________
Participant