exv10w5



 




Exhibit 10.5



STOCK OPTION PLAN




OF




MICROCELL TELECOMMUNICATIONS INC.




May 1, 2003



as amended on November 20, 2003








 




TABLE OF CONTENTS



	 	 	 	 	 	 	 
					Page
					

	
    
    1.

    	 	
    INTERPRETATION	 	 	2	 
	 	 	
    1.1. Definitions
    	 	 	2	 
	 	 	
    1.2. Headings and References
    	 	 	3	 
	 	 	
    1.3. Extended Meanings
    	 	 	3	 
	 	 	
    1.4. Currency
    	 	 	3	 
	 	 	
    1.5. Governing Law
    	 	 	3	 
	 	 	
    1.6. Schedules
    	 	 	3	 
	
    
    2.

    	 	
    ESTABLISHMENT OF THE PLAN	 	 	3	 
	 	 	
    2.1. Establishment
    	 	 	3	 
	 	 	
    2.2. Purpose
    	 	 	3	 
	 	 	
    2.3. No Employment Rights
    	 	 	3	 
	
    
    3.

    	 	
    GRANT OF OPTION	 	 	3	 
	 	 	
    3.1. Grant
    	 	 	3	 
	 	 	
    3.2. Delegation
    	 	 	4	 
	 	 	
    3.3. Limitations on Grant
    	 	 	4	 
	 	 	
    3.4. Exercise Price
    	 	 	4	 
	 	 	
    3.5. No Payment on Grant
    	 	 	4	 
	 	 	
    3.6. Option Agreement
    	 	 	4	 
	 	 	
    3.7. Changes in Shares
    	 	 	4	 
	 	 	
    3.8. Fractional Shares
    	 	 	5	 
	 	 	
    3.9. Designation of Subsidiary
    	 	 	5	 
	
    
    4.

    	 	
    EXERCISE OF OPTIONS	 	 	5	 
	 	 	
    4.1. Exercise of Options
    	 	 	5	 
	 	 	
    4.2. Vesting of Options
    	 	 	5	 
	 	 	
    4.3. Death of Participant
    	 	 	5	 
	 	 	
    4.4. Termination of Service
    	 	 	5	 
	 	 	
    4.5. Order of Exercise
    	 	 	6	 
	 	 	
    4.6. Method of Exercise and Class of Shares
    	 	 	6	 
	 	 	
    4.7. Option Not Transferable
    	 	 	6	 
	 	 	
    4.8. Permitted Assignments
    	 	 	6	 
	
    
    5.

    	 	
    TERMINATION OF OPTION	 	 	7	 
	 	 	
    5.1. Expiration of Exercise Period
    	 	 	7	 
	 	 	
    5.2. Bankrupt Participant
    	 	 	7	 
	
    
    6.

    	 	
    GENERAL	 	 	7	 
	 	 	
    6.1. Delivery of Shares, etc
    	 	 	7	 
	 	 	
    6.2. Issuance of Shares
    	 	 	7	 
	 	 	
    6.3. Administration
    	 	 	7	 
	 	 	
    6.4. Incapacity
    	 	 	7	 
	 	 	
    6.5. Amendment and Termination
    	 	 	7	 
	 	 	
    6.6. Approvals
    	 	 	7	 
	 	 	
    6.7. Reorganization
    	 	 	8	 












 




1. INTERPRETATION



     1.1. Definitions


     
(a) Board means the board of
directors of the Corporation.



     
(b) Business Day means a day,
other than Saturday, Sunday or a statutory holiday, on which
banks are generally open for business in Montreal, Québec
and Toronto, Ontario.



     
(c) Canadian means a Canadian
within the meaning ascribed to such term in the
Telecommunications Act (Canada) S.C. 1993, c. 38 and
the regulations thereunder, as amended from time to time.



     
(d) Change in Control means
any of the following occurrences: (a) the acquisition by
any one shareholder, or group of shareholders acting jointly or
in concert, of more than 50% of the outstanding voting shares of
the Corporation; (b) a sale by the Corporation of all or
substantially all of its assets to an unrelated third party, or
other liquidation or dissolution; (c) a change in the
composition of the Board involving at least one-half of the
Board which occurs at the same time or within a 60 day
period; or (d) a merger, consolidation, or other
reorganization of the Corporation which results in the
Corporation’s shareholders owning less than 50% of the
voting shares of the resulting entity.



     
(e) Class A Shares means
the Class A Restricted Voting Shares in the capital of the
Corporation.



     
(f) Class B Shares means
the Class B Non-Voting Shares in the capital of the
Corporation.



     
(g) Corporation means
Microcell Telecommunications Inc., a corporation existing under
the laws of Canada and any successor corporation.



     
(h) Employee means a person in
the full-time or part-time employ of the Corporation or a
Subsidiary, including an officer of the Corporation or a
Subsidiary.



     
(i) Exercise Price of an
Option has the meaning given to it in Section 3.4(a).



     
(j) Family Member means a
Participant’s spouse, minor child or minor grandchild.



     
(k) Market Price of an Option
means the greater of the closing price of the Class A
Shares or the closing price of the Class B Shares, as the
case may be, on the TSX or any other stock exchange on which the
shares are listed, on the last trading day immediately preceding
the date of grant of the Option (or if no Shares of any
particular class were traded, the average, rounded up to the
nearest cent, of the bid and ask prices for the Shares of such
class at the close of trading on such day).



     
(l) Option means a right to
subscribe for one or more Shares pursuant to this Plan.



     
(m) Option Agreement means the
written agreement between the Corporation and a Participant
evidencing the grant and acceptance of an Option substantially
in the form of Schedule A.



     
(n) Participant means an
Employee who has been granted an Option.



     
(o) Plan means this stock
option plan including the Schedules, as amended from time to
time.



     
(p) Service Termination Date
means the date on which a person ceases to be an
Employee. For greater certainty, a person ceases to be an
Employee at the time he/she is no longer obligated to work under
the direction or control of the employer even if he/she may
continue to receive payments from the employer as indemnity in
lieu of notice of termination or otherwise.



     
(q) Shares means Class A
Shares or Class B Shares, as determined by the Board in
accordance with Section 3 of this Plan.



     
(r) Subsidiary of the
Corporation at a particular time means a corporation that is
controlled, directly or indirectly, by the Corporation and is
designated as a “Subsidiary” by the Board for the
purpose of this Plan.



     
(s) TSX means the Toronto
Stock Exchange, a division of TSX Inc. through which the senior
listing operations of TSX Group Inc. are conducted.



-2-








 




     1.2. Headings
and References


     
The division of this Plan into sections and the
insertion of headings and a table of contents are for
convenience of reference only and shall not affect the
construction or interpretation of this Plan.




     1.3. Extended
Meanings


     
Unless otherwise specified, words importing the
singular include the plural and vice versa and words importing
gender include all genders.




     1.4. Currency


     
All references to currency or dollar amounts in
this Plan are to lawful currency of Canada.




     1.5. Governing
Law


     
This Plan shall be governed by and interpreted in
accordance with the laws of Québec and the laws of Canada
applicable therein, and the Corporation and the Participants
irrevocably attorn to the non-exclusive jurisdiction of the
courts of Québec.




     1.6. Schedules


     
The following Schedules are annexed to this Plan
and form part of this Plan:




	 	 	 
	
    
    Schedule A
    

    	 	
    Option Agreement
    
	
    
    Schedule B
    

    	 	
    Notice
    
	
    
    Schedule C
    

    	 	
    Residency Declaration
    





2. ESTABLISHMENT OF THE PLAN



     2.1. Establishment


     
The Corporation hereby established this Plan,
effective on May 1, 2003.




     2.2. Purpose


     
The purpose of this Plan is to advance the
interests of the Corporation by providing Employees with a
financial incentive for the continued improvement in the
performance of the Corporation and encouragement to continue
employment with the Corporation or a Subsidiary, as the case may
be.




     2.3. No
Employment Rights


     
Participation in this Plan does not give any
Employee the right to continue as an employee of the Corporation
or a Subsidiary or any right to, or interest in, any Option or
Share, except as specifically provided in this Plan. Nothing in
this Plan or in any Option shall be deemed, interpreted or
construed to constitute an agreement, or an expression of
intent, on the part of the Corporation or a Subsidiary, to
extend the employment of any Employee beyond the time at which
such Employee would normally be required to retire in accordance
with any applicable employment agreement, or retirement plan or
policy of the Corporation or a Subsidiary, then in effect.




3. GRANT OF OPTION



     3.1. Grant


     
(a) Subject to the provisions of this Plan,
the Board may, from time to time in its discretion, determine
those Employees to whom Options are to be granted, the number of
Shares which may be purchased pursuant to such Options, the time
or times when such Options shall vest and become exercisable,
and the duration of the exercise period.



-3-








 



     
(b) The class of Shares which may be
purchased pursuant to the exercise of Options will be determined
as set forth in Section 4.6.




     3.2. Delegation


     
The Board may delegate any of its
responsibilities or powers under this Plan to a committee of the
Board. In such event, all references to the Board in this Plan
in respect of such responsibilities or powers shall be deemed to
be references to the committee.




     3.3. Limitations
on Grant


     
The number of Shares that may be issued pursuant
to Options granted under this Plan shall not exceed 3,000
Class A Shares and 2,006,818 Class B Shares or such
greater number as shall have been approved by the shareholders,
the Board and the TSX or any other stock exchange on which the
Shares are listed.



     
No Option shall be granted under the Plan if such
Option together with all previously established or proposed
share compensation arrangements of the Corporation could result,
at any time, in:




		
	 	     
    (i) the number of Shares reserved for
    issuance pursuant to stock options granted to insiders exceeding
    10% of the number of Shares outstanding on a non-diluted basis
    immediately prior to the time of such grant excluding Shares
    issued pursuant to share compensation arrangements over the
    preceding one-year period;
    
	 
	 	     
    (ii) the issuance to insiders within a
    one-year period of a number of Shares exceeding 10% of the
    number of Shares outstanding immediately prior to the time of
    issuance excluding Shares issued pursuant to share compensation
    arrangements over the preceding one-year period; or
    
	 
	 	     
    (iii) the issuance to any one insider and
    such insider’s associates within a one-year period of a
    number of Shares exceeding 5% of the Shares outstanding on a
    non-diluted basis immediately prior to the time of issuance
    excluding Shares issued pursuant to share compensation
    arrangements over the preceding one-year period.
    





     3.4. Exercise
Price


     
(a) Subject to paragraph 3.4(b) and
applicable rules of the TSX or of any other stock exchange on
which the Shares are listed, at the time that it grants an
Option, the Board shall fix the price per Share payable on the
exercise of the Option (the “Exercise Price”).



     
(b) The Exercise Price of an Option shall
not be less than the Market Price.




     3.5. No
Payment on Grant


     
No payment to the Corporation shall be required
or made on the grant of an Option.




     3.6. Option
Agreement


     
The grant and acceptance of grant of an Option
shall be evidenced by the execution of an Option Agreement
between the Corporation and the Participant substantially in the
form of Schedule A.




     3.7. Changes
in Shares


     
If the Shares are subdivided, consolidated,
converted or reclassified or the number of Shares varies as a
result of a stock dividend, the Board shall adjust one or more
of:




		
	 	     
    (a) the number or class of Shares that may
    be subject to Options at any particular time;
    
	 
	 	     
    (b) the number or class of Shares that are
    subject to outstanding Options; and
    
	 
	 	     
    (c) the Exercise Price of outstanding
    Options,
    




-4-








 




in such manner as the Board considers appropriate
in the circumstances and all Option Agreements executed in
respect of outstanding Options shall be deemed to have been
amended accordingly without any further action or consent of the
Corporation and the Employees parties to Option Agreements.



     
If any Option has terminated or expired without
being fully exercised, any unissued Shares which have been
reserved to be issued upon the exercise of the Option shall
become available to be issued upon the exercise of Options
subsequently granted under the Plan.




     3.8. Fractional
Shares


     
No fractional shares shall be issued upon the
exercise of an Option nor shall any scrip certificates in lieu
therefore be issuable at any time. Accordingly, if as a result
of any adjustment under Section 3.7, a Participant would
otherwise have become entitled to a fractional share upon the
exercise of an Option, the Participant shall have the right to
purchase only the next lower whole number of Shares and no
payment or other adjustment will be made with respect to the
fractional interest so disregarded.




     3.9. Designation
of Subsidiary


     
The Board may revoke the designation of a
corporation as a Subsidiary, so long as such revocation does not
have retroactive effect. For the purposes of section 4.4,
the Service Termination Date of a Participant who is an Employee
of such corporation shall be deemed to be the date of such
revocation.




4. EXERCISE OF OPTIONS


 


		
	     4.1. 	
    Exercise of Options



     
A Participant may exercise an Option, in whole or
in part, at any time after the Option vests and before its
expiration.



 


		
	     4.2. 	
    Vesting of Options



     
Subject to the provisions of this Plan, at the
time that it grants an Option, the Board shall fix the vesting
period of such Option.



 


		
	     4.3. 	
    Death of Participant



     
If a Participant dies:




		
	 	     
    (a) subject to paragraph (c) below, any
    unvested Option held by the Participant at the time of the
    Participant’s death shall immediately terminate;
    
	 
	 	     
    (b) any vested Option held by the
    Participant at the time of the Participant’s death shall
    continue in effect and be exercisable as if the Participant had
    remained an Employee until the earlier of (a) the expiration
    date of the Option or (b) 180 days after the death of
    the Participant; and
    
	 
	 	     
    (c) the Board may permit the exercise of an
    Option even though the Option is unvested at the time of the
    Participant’s death for such period of time, as may be
    determined by the Board, but which shall in any event not be
    later than the earlier of (a) the expiration date of the
    Option or (b) 180 days after the death of the
    Participant.
    




 


		
	     4.4. 	
    Termination of Service



     
If a Participant ceases to be an Employee for any
reason other than death then:




		
	 	     
    (a) subject to paragraph (c) below, any
    unvested Option held by the Participant at the Service
    Termination Date shall immediately terminate;
    




-5-








 




		
	 	     
    (b) any vested Option held by the
    Participant at the Service Termination Date shall continue in
    effect and be exercisable only for a period of 30 days
    after the Service Termination Date. If it is not exercised
    within such 30 day period, the vested Option shall
    terminate; and
    
	 
	 	     
    (c) the Board may permit the exercise of an
    Option even though the Option is unvested at the Service
    Termination Date for such period of time as may be determined by
    the Board but which shall in any event not be later than the
    expiration date of the Option.
    




 


		
	     4.5. 	
    Order of Exercise



     
A Participant may exercise Options in any order
regardless of the date of grant of the Options.



 


		
	     4.6. 	
    Method of Exercise and Class of
    Shares



     
(a) A Participant or a Participant’s
heirs, executors, administrators or personal or legal
representatives may exercise an Option by delivering a written
notice of exercise in the form attached as Schedule B
together with payment in full of the Exercise Price for all
Shares in respect of which the Option is being exercised to the
Secretary of the Corporation at the registered office of the
Corporation in the City of Montreal, Québec; and, if the
Option is for Class A Shares, a residency declaration in
the form provided in Schedule C whereby the Participant
certifies whether he/she is a Canadian or a non-Canadian.



     
(b) The Option shall be deemed to have been
exercised upon actual receipt by the Secretary of the
Corporation of the materials referred to in Section 4.6(a)
and payment in full of the Exercise Price for such Shares. If
the residency declaration required by Section 4.6(a) cannot
be delivered, the Class A Shares issuable upon the exercise
of the Option will be automatically exchanged for Class B
Shares. Upon exercise in full, an Option shall be cancelled.



 


		
	     4.7. 	
    Option Not Transferable



     
Subject to Section 4.8, an Option granted
under this Plan shall be transferable only by will or by the
laws of intestacy and shall be exercisable, during the lifetime
of the Participant to whom the Option is granted, only by the
Participant (or, during any period in which the Participant
lacks capacity, by the Participant’s personal or legal
representatives) and, upon the death of the Participant, by the
Participant’s heirs, executors, administrators or personal
or legal representatives. No Option and none of the rights and
privileges thereby conferred shall be transferred, assigned,
pledged, hypothecated in any way or made the subject of any
security of any kind whatever (whether by operation of law or
otherwise), and no Option and none of the rights and privileges
thereby conferred shall be subject to execution, attachment or
similar process. Upon any attempt by a Participant to so
transfer, assign, pledge, hypothecate, make subject to a
security or otherwise dispose of an Option or any of the rights
and privileges thereby conferred contrary to the provisions
hereof, or upon the levy of any execution, attachment or similar
process upon an Option or any of the rights and privileges
thereby conferred, the Option and such rights and privileges
shall immediately terminate and cease to be exercisable.



 


		
	     4.8. 	
    Permitted Assignments



     
Subject to the prior approval of the Board or, as
the case may be, the committee of the Board, a Participant may
transfer Options to his or her Family Member, (i) his or
her registered retirement savings plan, which is established for
the sole benefit of the Participant, (ii) a family trust
(if he or she is a trustee and no person, other than the
Participant or a Family Member of the Participant, is a
beneficiary), (iii) a wholly-owned corporation, or
(iv) a corporation controlled by the Participant and all of
the minority shareholders are Family Members of the Participant,
provided, that, in any such case, the transfer is permitted by,
and is effected in accordance with the then applicable policies
of the TSX. Upon any such permitted transfer, the transferred
Options shall be deemed, for purposes of the Plan, to continue
to be held by the Participant, and shall continue to be subject
to the terms and conditions of the Plan as if the Participant
remained the sole holder thereof.



-6-








 




5. TERMINATION OF OPTION


 


		
	     5.1. 	
    Expiration of Exercise Period



     
Options shall expire on the date specified in the
Option Agreement or on the date specified in Section 4.3 or
4.4 and, in any event, the term of an Option shall not exceed
10 years from the date of grant.



 


		
	     5.2. 	
    Bankrupt Participant



     
If a Participant becomes bankrupt within the
meaning of the Bankruptcy and Insolvency Act (Canada) or
any other applicable bankruptcy legislation, any unexercised
Option held by such Participant shall immediately terminate and
cease to be exercisable.




6. GENERAL


 


		
	     6.1. 	
    Delivery of Shares, etc.



     
Any Shares to be issued to a Participant pursuant
to the exercise of an Option shall be issued not later than
30 days after the date of exercise of the Option.



 


		
	     6.2. 	
    Issuance of Shares



     
Any issue of Shares under this Plan shall be
subject to applicable law and to prior receipt of all necessary
or appropriate consents, if any, of any governmental or
regulatory authorities or agencies.



 


		
	     6.3. 	
    Administration



     
Subject to Section 3.2, this Plan shall be
administered by the Board which may prescribe rules and
regulations respecting this Plan. The Board has the exclusive
authority to interpret and construe this Plan and to determine
all questions respecting this Plan or any Option. Any such
interpretation, construction or determination shall be final,
binding and conclusive for all purposes in respect of all
persons affected thereby. The Board may take such other actions
as it considers necessary or desirable in respect of this Plan.



 


		
	     6.4. 	
    Incapacity



     
If a person to whom Shares are to be delivered or
a payment made under this Plan is a minor or is physically or
mentally incapable of giving a valid receipt, delivery or
payment may instead be made to a person having the legal care or
custody of the person to whom delivery or payment is to be made
and any such delivery or payment constitutes a complete
discharge of the obligation to make such delivery or payment.
Any delivery or payment so made shall be deemed to be a delivery
or payment made to the person entitled to such delivery or
payment. Once such delivery or payment is made, no further claim
may be made in respect of such delivery or payment by any person
whatsoever against: (a) the Corporation, (b) any of
the Corporation’s affiliates or subsidiaries, (c) any
of the Corporation’s or any of its affiliates’ or
subsidiaries’ directors, officers, employees or agents, or
(d) this Plan.



 


		
	     6.5. 	
    Amendment and Termination



     
The Board may at any time by resolution amend,
suspend or terminate this Plan in any manner whatsoever, except
that, subject to the provisions of Section 6.7, no such
amendment, suspension or termination shall adversely affect the
terms of any Option previously granted and not yet exercised or
expired, without the written consent of the affected
Participants.



 


		
	     6.6. 	
    Approvals



     
This Plan and any amendments hereto shall be
subject to the approval of the Board and any other approvals
required by applicable law or the requirements of any stock
exchange upon which the Shares are listed. Any Option granted
prior to receipt of any such approval shall be conditional upon
such approval being given and no Option may be exercised until
such approval is given. Notwithstanding any other term of this
Plan, the Corporation is not obliged to take any action or to
refrain from taking any action if such action (or refraining



-7-








 




therefrom) would result in a breach of any
applicable law, regulation, judgment, directive, rule, consent,
approval, authorization, guideline, order or policy of any
governmental or other regulatory authority (including any stock
exchange upon which the Shares are listed).




 


		
	     6.7. 	
    Reorganization



     
In the event of a Change in Control, a
reorganization of the Corporation, an amalgamation of the
Corporation, an arrangement involving the Corporation, a
take-over bid (as that term is defined in the Securities Act
(Québec)) for all of the Shares or the sale or
disposition of all or substantially all of the property and
assets of the Corporation, the Board may make such provision for
the protection of the rights of the Participants as the Board in
its discretion considers appropriate in the circumstances,
including changing the date on which any Option vests and/or the
date on which any Option expires.



-8-








 




SCHEDULE A



Form of Option Agreement


     
This option agreement is entered into between
Microcell Telecommunications Inc. (the
“Corporation”) and the Participant named below
pursuant to the Stock Option Plan of the Corporation (the
“Plan”).



     
This agreement evidences that
on                               the
Participant has been granted an Option to
purchase                               Shares
at an Exercise Price of $ per Share.



     
The Option vests in the Participant and, subject
to early expiry in the event of death or termination of service,
expires as follows:




	 	 	 	 	 	 	 	 	 
	Number of Shares		Vesting Date		Expiry Date
	
		
		





     
The Option is subject to the terms of the Plan.
Capitalized terms used but not defined in this certificate have
the meanings given to them in the Plan.



     
This agreement and all related documents have
been drawn up in the English language at the specific request of
the parties hereto. Ce contrat et tous les documents relatifs
ont été rédigés dans la langue anglaise
à la demande expresse des parties aux présentes.



     
And the parties have signed as
of                               .




		
	 	
    MICROCELL TELECOMMUNICATIONS INC.
    





			
	 	By: 	




		
	 	
    

	 	
    Name:
    
	 	
    Title:
    
	 
	 	
    Acknowledged and accepted by:
    
	 
	 	
    

	 	
    Name of Participant
    








 




SCHEDULE B



Notice



TO: Secretary of Microcell Telecommunications
Inc.


     
I refer to the Option to
purchase                     Shares
at an Exercise Price of
$          per
Share (the “Exercise Price”) pursuant to the
Stock Option Plan of Microcell Telecommunications Inc. (the
“Plan”) that was granted to me
on                     and
is evidenced by a Stock option agreement executed as
of                               .



     
Capitalized terms used but not defined in this
notice have the meanings given to them in the Plan.



     
I hereby exercise the Option in respect
of                     Shares
(the “Exercised Shares”) thereby subscribing
for the Exercised Shares at a subscription price per Exercised
Share equal to the Exercise Price for an aggregate subscription
price of
$           (the
“Subscription Price”).



     
Please
register                               Exercised
Shares in my name and forward the share certificate evidencing
such Exercised Shares to me at the address noted below. A cheque
in the amount of
$          on
account of the Subscription Price is attached to this notice.




	 	 	 
	
    
Address of Participant
    (PLEASE PRINT)
    	 	
    ----------------------------------------------

    Name of Participant (PLEASE PRINT)
    
	 
	
    
    


    	 	
    ----------------------------------------------

    Signature of Participant
    
	 
	
    
    


    	 	
    ----------------------------------------------

    Date
    









 




SCHEDULE C



FORM OF RESIDENCY DECLARATION



TO: Microcell Telecommunications
Inc.


     
In connection with the Stock Option Plan of
Microcell Telecommunications Inc., the undersigned, being the
person in whose name shares in the capital of Microcell
Telecommunications Inc. (the “Shares”) are to
be registered, hereby DECLARES and REPRESENTS that:




		
	 	     
    o the
    undersigned is Canadian as defined herein, OR
    
	 
	 	     
    o if
    other than the undersigned is not Canadian as defined herein.
    




     
For purposes of this residency declaration
“Canadian” means:




		
	 	     
    (a) a citizen within the meaning of
    subsection 2(1) of the Citizenship Act (Canada) who is
    ordinarily resident in Canada; or
    
	 
	 	     
    (b) a permanent resident within the meaning
    of subsection 2(1) of the Immigration Act (Canada) who is
    ordinarily resident in Canada, and has been ordinarily resident
    in Canada for not more than one year after the date on which
    that person first became eligible to apply for Canadian
    citizenship.
    





		
	 	
    DATED
    the                day
    of
    20          .
    
	 
	 	
    

	 	
    Name:
    
	 	
    Address: