exv10w12



 






Exhibit 10.12




SUNCOM WIRELESS HOLDINGS, INC.

DIRECTOR RESTRICTED STOCK AWARD AGREEMENT




     THIS
AGREEMENT is made effective as of this
          
day of
                  ,
200       by and between
SunCom Wireless Holdings, Inc., a Delaware corporation (“SunCom”) (SunCom and its subsidiaries
being referred to herein collectively as the “Company”), and                    (the “Director”).



W I T N E S S E T H




     WHEREAS, the Board of Directors of the Company (the “Board”), by action duly taken, has
approved an award to the Director consisting of
                
shares (the “Shares”) of the Company’s
Class A Common Stock (the “Common Stock”), subject to certain vesting and transferability
restrictions as set forth herein (the “Restricted Stock Award” or the “Award”) and the terms of the
SunCom Wireless Holdings, Inc. Directors’ Stock and Incentive Plan, as amended and restated (the
“Plan”); and



     WHEREAS, as a condition of the grant of the Restricted Stock Award, the Director is required
to execute this Restricted Stock Award Agreement (this “Agreement”).



     In consideration of the mutual promises and covenants contained in this Agreement, the parties
hereto, intending to be legally bound, agree as follows:



     1. Grant of Restricted Stock Award; Terms and Conditions of the Plan. Effective as of
the date of this Agreement (the “Grant Date”), and subject to all the terms and conditions set
forth herein and in the Plan, the Company hereby grants the Director a Restricted Stock Award
consisting of
                 shares (as defined above, the “Shares”). This Award is granted pursuant to
the Plan and is subject in its entirety to the terms of the Plan, the terms of which are
incorporated herein, and this Agreement. Unless the context otherwise requires, terms not defined
herein shall have the meanings given such terms in the Plan. To the extent that any conflict may
exist between any term or provision of this Agreement and any term or provision of the Plan, the
term or provision of the Plan will control. All questions of interpretation concerning this Award
are determined by the Board. All determinations by the Board will be final and binding upon all
persons having or claiming any interest in the Award or the Shares.



     2. Vesting; Effect of Termination of Service.



     (a) The Restricted Stock Award will vest as follows:



                           Shares will vest on                                  , 200     (such period between the Grant
Date and the vesting date being referred to as the “Restriction Period”).




     (b) Upon the Director’s termination of service as a member of the Board prior to                                  , 200    ], for any reason, including as a result of death, retirement or disability, the
Director will forfeit any remaining interest in the Restricted Stock Award and any corresponding
unvested Shares.



1









 




     (c) Notwithstanding the vesting date set forth in subsection (a) of this Section 2, in the
event of a Change of Control, as defined herein, all unvested Shares will vest immediately.
“Change of Control” means any transaction or event, or series of transactions or events, whether
voluntary or involuntary, that results in, or as a consequence of which, any of the following
events shall occur: (A) any person (as defined in Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “1934 Act”)), shall acquire, directly or
indirectly, beneficial ownership (as defined in Rule 13d-3 of the 1934 Act) of more than 50% of the
voting stock of SunCom; or (B) any sale of all or substantially all of the assets of SunCom; or (C)
a proxy contest for the election of directors of SunCom results in the persons constituting the
Board of Directors of SunCom immediately prior to the initiation of such proxy contest ceasing to
constitute a majority of the Board of Directors upon the conclusion of such proxy contest.



     3. Nontransferability. Unless otherwise permissible under the terms of the Plan or
this Agreement, the Restricted Stock Award will not be assignable or transferable by the Director
other than by will or the laws of descent and distribution. No right or interest of the Director
in the Shares or the Restricted Stock Award shall be pledged to or encumbered in favor of any
party, or will be subject to any lien, obligation or liability of the Director to any party other
than the Company. Any purported assignment or transfer of the Shares or the Restricted Stock Award
that is not in accordance with the express terms of this Agreement will be null and void and of no
effect whatsoever. The sale of vested Shares may be further restricted due to applicable
securities or other laws or pursuant to the Company’s policies, including but not limited to its
Insider Trading Policy.



     4. Rights as a Stockholder; No Right to Continued Service; Forfeiture.




     (a) Except as otherwise provided in the Plan or this Agreement, during the Restriction Period,
the Director will have all of the rights of a stockholder of the Company with respect to the
Restricted Stock Award, including but not limited to the right to vote the Shares subject to the
Restricted Stock Award and to have dividends, if any, declared with respect to such Shares,
regardless of whether or not the Director has an unrestricted right to retain the Shares subject to
the Restricted Stock Award, provided that any dividends declared with respect to the Restricted
Stock Award will be withheld by the Company and paid to the Director, without interest, only when
and to the extent the Director vests in the Restricted Stock Award. Such dividends will be paid no
later than March 15th of the year following the year in which the corresponding portion
of the Award vests. Notwithstanding the foregoing, (i) the Director will not be entitled to
delivery of the stock certificate(s) representing unvested Shares subject to the Award (or any
dividends thereon) unless and until the Restriction Period with respect to such shares has expired
and any Forfeiture Restrictions have lapsed (in which case delivery of such Shares will be made as
soon as practicable), (ii) the Company will (or will designate an agent or representative to)
retain custody of the stock certificate(s) during the Restriction Period, (iii) the Director may
not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the Shares during the
Restriction Period, and (iv) a breach of any terms and conditions established by the Board
regarding the Award will cause a forfeiture of the Award and the underlying Shares related to the
Award.



     (b) Nothing in this Agreement will confer upon the Director any right to continue serving on
the Board. Except as may be otherwise provided in the Plan, if the service of the Director
terminates for any reason and all or any part of an Award has not vested or been earned pursuant to
the terms of the Plan and this Agreement, the Award, to the extent not then vested or earned, will
be forfeited immediately upon such termination of service and the Director will have no further
rights with respect to the Award or any Shares of Common Stock or other benefit related to the
Award.



2









 




     5. Legends. The Company may at any time place legends referencing any applicable
federal or state securities law restrictions on certificates representing the Shares subject to the
Restricted Stock Award. The Director will, at the request of the Company, promptly present to the
Company any and all certificates representing such Shares that are in the possession of the
Director in order to effectuate the provisions of this Section 5.



     6. Transfer Restrictions. The Director agrees that while serving as a Director of the
Company (or any successor), the Director will not, directly or indirectly, sell, transfer, assign,
pledge, place in trust or otherwise dispose of (collectively, “Transfer”) beneficial ownership of
any shares of the Common Stock, including the Shares, whether now owned or subsequently acquired,
however acquired (“SunCom Shares”), except as otherwise expressly permitted in this Section. Any
such Transfer will be subject to the terms and conditions of any other agreements applicable to any
Transfer of SunCom Shares as may be in effect during the term of this Agreement.



     (a) The Director may Transfer SunCom Shares provided the price per share is at least eight
dollars (as such amount may be appropriately adjusted for stock splits, stock dividends,
combinations, recapitalizations and such similar events) or such lower amount as may be established
by the Committee from time to time in its sole discretion.



     (b) The Director may Transfer such SunCom Shares as may be necessary to satisfy any tax
obligation arising as a result of the award or vesting of any SunCom Shares or upon the exercise of
any option to acquire any SunCom Shares.



     (c) The Director may Transfer SunCom Shares provided the Director has not been a director of
or employed by the Company or any of its affiliates for a period of at least 90 days.



     (d) The Director may Transfer any SunCom Shares that have been acquired in an open market
acquisition on or after January 1, 2001.



     (e) In the event of a Transfer of the Common Stock by J.P. Morgan Partners (23 A SBIC), LLC,
Equity-Linked Investors-II or Private Equity Investors III, L.P., the Director may Transfer an
equivalent proportion of SunCom Shares.


Nothing in this Section will be deemed to preclude any Transfer of SunCom Shares either: (i) to
members of the Director’s immediate family, or to a trust for the benefit of members of the
Director’s immediate family, provided that the family member or trust agrees to continue to be
bound by the transfer restrictions set forth in this Section 6; or (ii) to or for the benefit of
any charitable organization.




     7. Modification. No change, termination, waiver or modification of this Agreement
will be valid unless in writing and signed by all of the parties to this Agreement. However,
notwithstanding the preceding sentence, the Board has unilateral authority to amend the Plan and
this Agreement (without the Director’s consent) to the extent necessary to comply with applicable
laws, rules or regulations or changes to applicable laws, rules and regulations (including but in
no way limited to Code Section 409A and related regulations or other guidance and federal
securities laws).



     8. Consent to Jurisdiction. The Director hereby consents to the jurisdiction of any
state or federal court located in the county in which the principal executive office of the Company
is then located for purposes of the enforcement of this Agreement and waives personal service of
any



3









 






and all process upon him. The Director waives any objection to venue of any action instituted
under this Agreement.



     9. Parties to Agreement. This Agreement will be binding on and will operate for the
benefit of the Company, its successors and assigns, and the Director and his heirs, estate,
personal representatives, successors and assigns.



     10. Notices. All notices, designations, consents, offers or any other communications
provided for in this Agreement must be given in writing, personally delivered, or by facsimile
transmission with an appropriate written confirmation of receipt, by nationally recognized
overnight courier or by U.S. mail. If by mail or overnight courier, notice must be sent with
first-class postage prepaid and return receipt requested, in which event it will be deemed to have
been given on the date following the date it was so posted. Notice to the Company is to be
addressed to its then principal office. Notice to the Director or any transferee is to be
addressed to his or its respective address as it appears on the transfer books of the Company, or
to such other address as may be designated by the receiving party by notice in writing to the
Secretary or Assistant Secretary of the Company.



     11. Counterparts; Further Assurances. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same instrument. At any time, and from time to time after executing this Agreement,
the Director will execute such additional instruments and take such actions as may be reasonably
requested by the Company to confirm or perfect or otherwise to carry out the intent and purpose of
this Agreement.



     12. No Restriction on Company Action. Nothing contained in this Agreement will be
construed to prevent the Company from taking any corporate action that is deemed by the Company to
be appropriate or in the Company’s best interests, whether or not such action would have an adverse
effect on the Restricted Stock Award. Neither the Director nor any beneficiary thereof, nor any
other person, will have any claim against the Company as a result of any such action.



     13. Provisions Severable. If any provision of this Agreement is invalid or
unenforceable, it will not affect the other provisions, and this Agreement will remain in effect as
though the invalid or unenforceable provisions were omitted. Upon a determination that any term or
other provision is invalid or unenforceable, the Company, in accordance with Delaware general
corporate law, will in good faith modify this Agreement so as to effect the original intent of the
parties as closely as possible.



     14. Captions. Captions herein are for convenience of reference only and will not be
considered in construing this Agreement.



     15. Entire Agreement. This Agreement supersedes any statements, representations or
agreements of the Company with respect to the grant of the Award or any related rights, and the
Director hereby waives any rights or claims related to any such statements, representations or
agreements. This Agreement does not supersede or amend any existing confidentiality agreement,
nonsolicitation agreement, noncompetition agreement, consulting agreement or any other similar
agreement between the Director and the Company, including, but not limited to, any restrictive
covenants contained in such agreements.



4









 




     16. Governing Law. This Agreement is to be governed in accordance with the laws of
the State of Delaware, without regard to the principles of conflicts of laws, and in accordance
with applicable general laws of the United States.



     17. Right of Offset. Notwithstanding any other provision of the Plan or this
Agreement, the Company may reduce the amount of any benefit or payment otherwise payable to the
Director or on his behalf by the amount of any obligation the Director has to the Company, and the
Director is deemed to have consented to such reduction by entering into this Agreement.



     18. Tax Matters; Withholding.




     (a) The Company has made no warranties or representations to the Director with respect to the
tax consequences (including but not limited to income tax consequences) related to the Award or
issuance or transfer of Shares pursuant to the Award, and the Director is in no manner relying on
the Company or its representatives for an assessment of such tax consequences. The Director
acknowledges that there may be adverse tax consequences upon acquisition or disposition of the
Shares subject to the Award and that the Director has been advised that he should consult with his
own attorney, accountant, and/or tax advisor regarding the decision to enter into this Agreement
and the consequences thereof. The Director also acknowledges that the Company has no
responsibility to take or refrain from taking any actions in order to achieve a certain tax result
for the Director. The Company will have the right to deduct in connection with the Award any taxes
required by law to be withheld and to require any payments necessary to enable it to satisfy its
withholding obligations.



     (b) Within thirty (30) days of the Grant Date, the Director may file an “83(b) election” with
the Internal Revenue Service to recognize as income 100% of the Fair Market Value of the Shares as
of the Grant Date. The 83(b) election should be sent via certified mail to the Internal Revenue
Service. This election is generally irrevocable. The Director must also send a copy of the 83(b)
election to the Company’s Human Resources Department in Berwyn, PA (Attention: Manager of
Qualified Plans).



19. Forfeiture of Shares and/or Gain from Shares.




     (a) Notwithstanding any other provision of this Agreement, if, at any time during the period
of his service on the Board or during the 24-month period following termination of his service on
the Board for any reason (regardless of whether such termination was by the Company or the
Director, and whether voluntary or involuntary), the Director engages in a Prohibited Activity (as
defined herein), then (i) the Award will immediately be terminated and forfeited in its entirety,
(ii) any Shares subject to the Award, regardless of whether such Shares are vested or unvested
and/or deferred or undeferred, will immediately be forfeited and returned to the Company and the
Director will cease to have any rights related thereto and will cease to be recognized as the legal
owner of such Shares, and (iii) any Gain (as defined herein) realized by the Director with respect
to any Shares subject to the Award will immediately be paid by the Director to the Company.



     (b) For the purposes herein, a “Prohibited Activity” means (i) the Director’s solicitation or
assisting any other person in so soliciting, directly or indirectly, in one or a series of
transactions, of any customers, suppliers, vendors, or other service providers to or of the Company
for the purpose of inducing that customer, supplier, vendor or other service provider to terminate
or alter his or its relationship with the Company; (ii) the Director’s inducement, directly or
indirectly, in one or a series of transactions, of any employees or service providers to terminate
their employment with or service



5









 




to the Company for the purpose of performing services for, assisting, advising or otherwise
supporting any business which is competitive with the business of the Company; (iii) the Director’s
violation of any noncompetition restrictions applicable to him; (iv) the Director’s violation of
any of the Company’s policies, including, without limitation, the Company’s insider trading
policies; (v) the Director’s violation of any material (as determined by the Board) federal, state
or other law, rule or regulation; (vi) the Director’s disclosure or misuse of any confidential
information or material concerning the Company (except as otherwise required by law or as agreed to
by the parties herein); (vii) the Director’s dishonesty, theft or embezzlement in a manner which
negatively impacts the Company in any way; (viii) the Director’s refusal or failure to perform his
duties for the Company in accordance with applicable legal standards; or (ix) the Director’s
engaging in any conduct that could be materially damaging to the Company without a reasonable good
faith belief that such conduct was in the best interest of the Company. The Board has sole and
absolute discretion to determine if a Prohibited Activity has occurred.



     (c) For the purposes herein, “Gain” means, unless the Board determines otherwise, the greater
of the Fair Market Value (as defined in the Plan) of the Shares (or portion thereof) at the time of
grant or vesting or the disposition price of such Shares at the time of disposition, multiplied by
the number of Shares sold or disposed.



     (d) Notwithstanding the provisions of Section 19(a) herein, the waiver by the Company in any
one or more instances of any rights afforded to the Company pursuant to the terms of Section 19(a)
herein will not be deemed to constitute a further or continuing waiver of any rights the Company
may have pursuant to the terms of this Agreement or the Plan (including but not limited to the
rights afforded the Company in Section 19 herein).



     (e) By accepting this Agreement, and without limiting the effect of Section 17 herein, the
Director consents to a deduction (to the extent permitted by applicable law) from any amounts the
Company may owe the Director from time to time to the extent of the amounts the Director owes the
Company pursuant to this Agreement, including but not limited to Section 17 or Section 19 herein.
Whether or not the Company elects to make any set-off in whole or in part, if the Company does not
recover by means of set-off the full amount owed by the Director pursuant to this Agreement, the
Director agrees to immediately pay the unpaid balance to the Company.



     20. Gender and Number. Except where otherwise indicated by the context, words in any
gender shall include any other gender, words in the singular shall include the plural and words in
the plural shall include the singular.



[Signature Page To Follow]




6









 







     IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its
officers thereunto duly authorized, and the Director has hereunto set his hand, effective as of the
day and year first above written.



	 	 	 	 	 
	 	SUNCOM WIRELESS HOLDINGS, INC.

 	 
	 	 	 
	 	By:  Michael E. Kalogris 	 
	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	DIRECTOR

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 




7