exv10w28



 





Exhibit 10.28









N O N-Q U A L I F I E
D  S T O C K  O P T I O N




Non-transferable




G R A N T  TO




(the“Optionee”)




the right to purchase (the “Options”) from AirGate PCS, Inc. (the “Company”)




shares of its common stock, par value $0.01 per share, at the price of




$

per share




pursuant to and subject to the provisions of the AirGate PCS, Inc. Amended and
Restated 2002 Long-Term Incentive Plan (the “Plan”) and to the terms and
conditions set forth on the reverse hereof. By accepting the Options, the
Optionee shall be deemed to have agreed to the terms and conditions set forth
in this Certificate and the Plan.



IN WITNESS WHEREOF, AirGate PCS, Inc., acting by and through its duly
authorized officers, has caused this Certificate to be executed on behalf of
the Company.



	 	 	 	 	 
	 	 	AIRGATE PCS, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	Its:
	 	Authorized Officer
	 
	 	 	 	 
	

	 	 	 	Option Grant Date:







 









 






Terms and Conditions




     1. Grant of Option. AirGate PCS, Inc. (the “Company”) hereby grants to the
Optionee named on the reverse hereof (“Optionee”), under the AirGate PCS, Inc.
Amended and Restated 2002 Long-Term Incentive Plan (the “Plan”), Non-Qualified
Stock Options to purchase from the Company (the “Options”), on the terms and on
conditions set forth in this certificate (this “Certificate”), the number of
shares (“Shares”) indicated on the reverse hereof of the Company’s $0.01 par
value common stock, at the exercise price per share set forth on the reverse
hereof. Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Plan.



     2. Vesting of Options. The Options shall vest as follows:



	 	 	 	 	 
	Years of Continuous Status as an	 	Percentage of Option
	Employee After Date of Grant
	 	Shares Vested

	Less than 1
	 	 	0	%
	1
	 	 	25	%
	2
	 	 	50	%
	3
	 	 	75	%
	4
	 	 	100	%







       For purposes of computing the number of Shares which Optionee has a right
to acquire by exercise of these Options in accordance with the vesting schedule
set forth above, fractional shares shall be disregarded and the next higher
whole number of Shares shall be used, rounding all fractions upward.



       Notwithstanding the foregoing vesting schedule, if Optionee’s employment
is terminated by the Company without Cause or by Optionee for Good Reason
within 24 months after the occurrence of a Change of Control (a “Qualifying
Change in Control Termination”), all Options shall become fully vested and
exercisable.



     3. Term of Options and Limitations on Right to Exercise. The term of the
Options will be for a period of ten years, expiring at 5:00 p.m., Eastern Time,
on the tenth anniversary of the Option Grant Date (the “Expiration Date”). To
the extent not previously exercised, the Options will lapse prior to the
Expiration Date upon the earliest to occur of the following circumstances:




     (a) Three months after the termination of Optionee’s Continuous Status
as a Participant for any reason other than (i) for Cause, (ii) by reason of
Optionee’s death, Disability or Retirement, or (iii) in a Qualifying Change
in Control Termination.




     (b) Twelve months after the date of the termination of Optionee’s
Continuous Status as a Participant by reason of Disability or Retirement or
in a Qualifying Change in Control Termination.




     (c) Twelve months after the date of Optionee’s death, if Optionee dies
while employed, or during the three-month period described in subsection (a)
above, or during the twelve-month period described in subsection (b) above
and before the Options otherwise lapse. Upon Optionee’s death, the Options
may be exercised by Optionee’s beneficiary designated pursuant to the Plan.



       Notwithstanding any provision in the Plan or this Certificate to the
contrary, if Optionee is terminated for Cause, Optionee shall forfeit the right
to exercise the Options as to all Shares then subject to the Options, whether
or not vested at that time.



       The Board may, prior to the lapse of the Options under the circumstances
described in paragraphs (a), (b) and (c) above, extend the time to exercise the
Options as determined by the Board in writing. If Optionee returns to
employment with the Company during the designated post-termination exercise
period, then Optionee shall be restored to the status Optionee held prior to
such termination but no vesting credit will be earned for any period Optionee
was not in Continuous Status as a Participant. If Optionee or his or her
beneficiary exercises an Option after termination of service, the Options may
be exercised only with respect to the Shares that were otherwise vested on
Optionee’s termination of service.



4. Exercise of Option. The Options shall be exercised by (a) written notice
directed to the Secretary of the Company or his or her designee at the address
and in the form specified by the Secretary from time to time and (b) payment to
the Company in full for the Shares subject to such exercise. If the person
exercising an Option is not Optionee, such person shall also deliver with the
notice of exercise appropriate proof of his or her right to exercise the
Option. Payment for such Shares shall be in cash for the number of Shares
specified in such written notice, unless another method is approved by the
Secretary.



5. Beneficiary Designation. Optionee may, in the manner determined by the
Committee, designate a beneficiary to exercise the rights of Optionee hereunder
and to receive any distribution with respect to the Options upon Optionee’s
death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights hereunder is subject to all terms and conditions of this
Certificate and the Plan, and to any additional restrictions deemed necessary
or appropriate by the Committee. If no beneficiary has been designated or
survives Optionee, the Options may be exercised by the legal representative of
Optionee’s estate, and payment shall be made to Optionee’s estate. Subject to
the foregoing, a beneficiary designation may be changed or revoked by Optionee
at any time provided the change or revocation is filed with the Company.



6. Withholding. The Company has the authority and the right to deduct or
withhold, or require Optionee to remit to the Company, an amount sufficient to
satisfy federal, state, and local taxes (including Optionee’s FICA obligation)
required by law to be withheld with respect to any taxable event arising as a
result of the exercise of the Options. Such withholding requirement may be
satisfied, in whole or in part, at the election of the Company, by withholding
from the Options Shares having a Fair Market Value on the date of withholding
equal to the minimum amount (and not any greater amount) required to be
withheld for tax purposes, all in accordance with such procedures as the
Secretary establishes.



7. Limitation of Rights. The Options do not confer to Optionee or Optionee’s
beneficiary designated pursuant to Paragraph 5 any rights of a shareholder of
the Company unless and until Shares are in fact issued to such person in
connection with the exercise of the Options. Nothing in this Certificate shall
interfere with or limit in any way the right of the Company or any Affiliate to
terminate Optionee’s service at any time, nor confer upon Optionee any right to
continue in the service of the Company or any Affiliate.



8. Stock Reserve. The Company shall at all times during the term of this
Certificate reserve and keep available such number of Shares as will be
sufficient to satisfy the requirements of this Certificate.



9. Restrictions on Transfer and Pledge. No right or interest of Optionee in
the Options may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or an Affiliate, or shall be subject to any lien,
obligation, or liability of Optionee to any other party other than the Company
or an Affiliate. The Options are not assignable or transferable by Optionee
other than by will or the laws of descent and distribution or pursuant to a
domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if
such Section applied to an Option under the Plan; provided, however, that the
Committee may (but need not) permit other transfers where the Committee
concludes that such transferability (i) does not result in accelerated taxation
and (ii) is otherwise appropriate and desirable, taking into account any
factors deemed relevant, including without limitation, state or federal tax or
securities laws applicable to transferable options. The Options may be
exercised during the lifetime of Optionee only by Optionee or any permitted
transferee.



10. Restrictions on Issuance of Shares. If at any time the Committee shall
determine in its discretion, that registration, listing or qualification of the
Shares covered by the Options upon any Exchange or under any foreign, federal,
or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to the exercise of
the Options, the Options may not be exercised in whole or in part unless and
until such registration, listing, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the
Committee.



11. Plan Controls. The terms contained in the Plan are incorporated into and
made a part of this Certificate and this Certificate shall be governed by and
construed in accordance with the Plan. In the event of any actual or alleged
conflict between the provisions of the Plan and the provisions of this
Certificate, the provisions of the Plan shall be controlling and determinative.



12. Successors. This Certificate shall be binding upon any successor of the
Company, in accordance with the terms of this Certificate and the Plan.



13. Severability. If any one or more of the provisions contained in this
Certificate is invalid, illegal or unenforceable, the other provisions of this
Certificate will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.



14. Notice. Notices and communications under this Certificate must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to:


AirGate PCS, Inc.

Harris Tower, Suite 1700

233 Peachtree Street, NE

Atlanta, Georgia 30303

Attn: Secretary



or any other address designated by the Company in a written notice to Optionee.
Notices to Optionee will be directed to the address of Optionee then currently
on file with the Company, or at any other address given by Optionee in a
written notice to the Company.