-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PwC2gIp8ilKjFyGyWlJT38owJbkyfG1EcMBTsmM05hEWVbxU45SKosK7oBzroUwq mpHislMl0Mr7X109PGB5zw== 0000891020-04-000642.txt : 20041230 0000891020-04-000642.hdr.sgml : 20041230 20041230172750 ACCESSION NUMBER: 0000891020-04-000642 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20041230 DATE AS OF CHANGE: 20041230 EFFECTIVENESS DATE: 20041230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WESTERN WIRELESS CORP CENTRAL INDEX KEY: 0000930738 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 911638901 STATE OF INCORPORATION: WA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-121798 FILM NUMBER: 041234963 BUSINESS ADDRESS: STREET 1: 3650 131 ST AVENUE SE STREET 2: SUITE 400 CITY: BELLEVUE STATE: WA ZIP: 98006 BUSINESS PHONE: 4255868700 MAIL ADDRESS: STREET 1: 3650 131ST AVE. S.E STREET 2: SUITE 400 CITY: BELLEVUE STATE: WA ZIP: 98006 S-8 1 v04311orsv8.htm FORM S-8 sv8
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As filed with the Securities and Exchange Commission on December 30, 2004

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

Western Wireless Corporation

(Exact name of registrant as specified in its charter)
     
Washington   91-1638901
(State or other jurisdiction
of incorporation or organization) 		  (IRS Employer
Identification No.)

3650 131st Avenue S.E.
Bellevue, Washington 98006
(Address of Principal Executive Offices, including zip code)

Western Wireless Corporation 2005 Long-Term Equity Incentive Plan
Western Wireless Corporation Executive Restricted Stock Plan
(Full title of the plan)

Jeffrey A. Christianson
Sr. Vice President and General Counsel
3650 131 st Avenue S.E.
Bellevue, Washington 98006
(425) 586-8700
(Name, address and telephone number, including area code, of agent for service)

Copies of all communications to:

Richard B. Dodd
Matthew S. Topham
Preston Gates & Ellis LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
(206) 623-7580

                                 
            Proposed   Proposed    
    Amount   maximum   maximum   Amount of
Title of each class of   to be   offering price   aggregate   registration
securities to be registered
   registered (1)
   per share
   offering price
   fee(2)
Class A Common Stock, no par value per share
     8,656,990 (3)   $ 29.13     $ 252,178,118.70     $ 29,681.36  

(1)   Includes an indeterminate number of additional shares that may be issued to adjust the number of shares issued pursuant to the registrant’s 2005 Long-Term Equity Incentive Plan or Executive Restricted Stock Plan as the result of any future stock split, stock dividend or similar adjustment of the registrant’s outstanding common stock.
 
(2)   Estimated pursuant to Rule 457(c) solely for purposes of calculating amount of registration fee, based upon the average of the high and low prices reported on December 23, 2004, as reported on the Nasdaq National Market.

 

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(3)   8,000,000 of the shares are registered to be offered or sold pursuant to the Western Wireless Corporation 2005 Long-Term Equity Incentive Plan and 656,990 of the shares are registered to be offered or sold pursuant to the Western Wireless Corporation Executive Restricted Stock Plan. The plans named in the preceding sentence are collectively referred to in this registration statement as the “Plans.”

 

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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Item 4. Description of Securities.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed.
Item 8. Exhibits.
Item 9. Undertakings.
SIGNATURES
EXHIBIT 5.1
EXHIBIT 23.1
EXHIBIT 99.1
EXHIBIT 99.2
EXHIBIT 99.3
EXHIBIT 99.4

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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

     The following documents heretofore filed with the Securities and Exchange Commission (the “Commission”) by Western Wireless Corporation (the “Company”) are hereby incorporated by reference into this registration statement:

     (a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003, filed with the Commission on March 12, 2004, as amended on November 15, 2004, which contains audited consolidated financial statements for the most recent fiscal year for which such statements have been filed.

     (b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in paragraph (a) above.

     (c) The description of the Company’s Class A Common Stock, no par value per share, which is incorporated by reference in the Form 8-A dated April 8, 1996, filed by the Company pursuant to the Exchange Act (which incorporates the description contained in the Company’s registration statement on Form S-1, Commission File No. 333-2432).

     All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold are deemed to be incorporated by reference into this registration statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).

     Any statement in an Incorporated Document shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4. Description of Securities.

     Not Applicable.

Item 5. Interests of Named Experts and Counsel.

     The validity of the Company’s Class A Common Stock that may be offered under the Plans will be passed upon for the Company by Preston Gates & Ellis LLP, 925 Fourth Avenue, Suite 2900, Seattle, Washington 98104. Attorneys who are partners or employed by Preston Gates & Ellis LLP who have provided advice with respect to this matter own shares of the Company’s Class A Common Stock.

Item 6. Indemnification of Directors and Officers

     Section 23B.08.510 of the Washington Business Corporation Act, as amended from time to time (the “Act”) authorizes Washington corporations to indemnify their officers and directors under certain circumstances against expenses and liabilities incurred in legal proceedings involving such persons because of their being or having been an officer or director. The Company’s Amended and Restated Articles of Incorporation and Bylaws require indemnification of the Company’s officers and directors to the fullest extent permitted by Washington law. The Company also maintains directors’ and officers’ liability insurance.

     The Company’s Bylaws and Amended and Restated Articles of Incorporation provide that the Company shall, to the full extent permitted by the Act, indemnify all directors and officers of the Company and advance expenses to each of the Company’s currently acting and former directors, subject to certain exceptions in the Bylaws. In addition, the Company’s Amended and Restated Articles of Incorporation contain a provision eliminating the personal liability of directors to the Company or its shareholders for monetary damages arising out of a breach of

 

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fiduciary duty. Under Washington law, this provision eliminates the liability of a director for breach of fiduciary duty but does not eliminate the personal liability of any director for (i) acts or omissions of a director that involve intentional misconduct or a knowing violation of law, (ii) conduct in violation of Section 23B.08.310 of the Act (which section relates to unlawful distributions) or (iii) any transaction from which a director personally received a benefit in money, property or services to which the director was not legally entitled.

     The Company has entered into separate indemnification agreements with each of its directors and executive officers.

Item 7. Exemption from Registration Claimed.

     Not Applicable.

Item 8. Exhibits.

     
Exhibit Number
   Description
5.1
  Opinion of Preston Gates & Ellis LLP
 
    
23.1
  Consent of Independent Registered Public Accounting Firm (PricewaterhouseCoopers LLP)
 
    
23.2
  Consent of Preston Gates & Ellis LLP (included in Exhibit 5.1)
 
    
24
  Powers of Attorney (contained within signature pages)
 
    
99.1
  Western Wireless Corporation 2005 Long-Term Equity Incentive Plan
 
    
99.2
  Form of Stock Option Agreement pursuant to Western Wireless Corporation 2005 Long-Term Equity Incentive Plan (non-officer)
 
    
99.3
  Form of Stock Option Agreement pursuant to Western Wireless Corporation 2005 Long-Term Equity Incentive Plan (officer)
 
    
99.4
  Form of Restricted Stock Purchase Agreement pursuant to Western Wireless Corporation Executive Restricted Stock Plan

Item 9. Undertakings.

     The undersigned registrant hereby undertakes:

     (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

     To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

     (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (the “Securities Act”), each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

     (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

     The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

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     Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bellevue, State of Washington, on December 29, 2004.

     
  WESTERN WIRELESS CORPORATION
 
    
  /s/ John W. Stanton
 
 
  John W. Stanton
Chairman of the Board and Chief Executive Officer

     KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints John W. Stanton and Jeffery A. Christianson, and each of them, individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, the full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorneys-in-fact and agents or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

     Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

         
Signature
   Title
   Date
 
        
/s/ John W. Stanton
John W. Stanton
  Chairman of the Board and Chief Executive Officer (Principal Executive Officer)   December 29, 2004
 
        
/s/ Theresa E. Gillespie
Theresa E. Gillespie
  Vice Chairman and Director   December 29, 2004
 
        
/s/ Mikal J. Thomsen
Mikal J. Thomsen
  President and Director   December 29, 2004
 
        
/s/ M. Wayne Wisehart
M. Wayne Wisehart
  Executive Vice President and Chief Financial Officer   December 29, 2004
 
        
/s/ Scott A. Soley
Scott A. Soley
  Vice President and Controller (Chief Accounting Officer)   December 29, 2004
 
        
/s/ John L. Bunce Jr.
John L. Bunce Jr.
  Director   December 29, 2004
 
        
/s/ Mitchell R. Cohen
Mitchell R. Cohen
  Director   December 29, 2004

 

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/s/ Daniel J. Evans
Daniel J. Evans
  Director   December 29, 2004
 
        
Jonathan M. Nelson
  Director   December    , 2004
 
        
/s/ Peter H. van Oppen
Peter H. van Oppen
  Director   December 29, 2004
 
        
/s/ Peggy V. Phillips
Peggy V. Phillips
  Director   December 29, 2004

 

EX-5.1 2 v04311orexv5w1.txt EXHIBIT 5.1 EXHIBITS 5.1 AND 23.2 {LETTERHEAD OF PRESTON GATES & ELLIS LLP} December 30, 2004 Western Wireless Corporation 3650 131st Ave. S.E. Bellevue, Washington 98006 Re: Western Wireless Corporation 2005 Long-Term Equity Incentive Plan; Western Wireless Corporation Executive Restricted Stock Plan Ladies and Gentlemen: We have acted as counsel to Western Wireless Corporation ("Western Wireless") in connection with the registration with the Securities and Exchange Commission on Form S-8 of shares of Western Wireless Class A Common Stock, no par value (the "Shares"), which may be issued in connection with the above-referenced plans (the "Plans"). In connection with that registration, we have reviewed the proceedings of the Board of Directors of Western Wireless relating to the registration and proposed issuance of the Shares, the Amended and Restated Articles of Incorporation of Western Wireless and all amendments thereto, the Bylaws of Western Wireless and all amendments thereto, and such other documents and matters as we have deemed necessary to the rendering of the following opinion. Based upon that review, it is our opinion that the Shares when issued in conformance with the terms and conditions of the Plans, will be legally issued, fully paid, and nonassessable under the Washington Business Corporation Act. We do not find it necessary for the purposes of this opinion to cover, and accordingly we express no opinion as to, the application of the securities or blue sky laws of the various states as to the issuance and sale of the Shares. We consent to the use of this opinion in the registration statement filed with the Securities and Exchange Commission in connection with the registration of the Shares and to the reference to our firm under the heading "Interests of Named Experts and Counsel" in the registration statement. Very truly yours, PRESTON GATES & ELLIS LLP By /s/ Matthew S. Topham --------------------- Matthew S. Topham EX-23.1 3 v04311orexv23w1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 10, 2004, except as to Note 20 which is as of November 12, 2004, relating to the consolidated financial statements and financial statement schedules, which appears in Western Wireless Corporation's Annual Report on Form 10-K/A, Amendment No. 1 to Form 10-K, for the year ended December 31, 2003. Seattle, Washington December 29, 2004 EX-99.1 4 v04311orexv99w1.txt EXHIBIT 99.1 Exhibit 99.1 WESTERN WIRELESS CORPORATION 2005 LONG-TERM EQUITY INCENTIVE PLAN TABLE OF CONTENTS PAGE 1. Purpose of the Plan....................................................1 2. Definitions............................................................1 (a) Award............................................................1 (b) Award Agreement..................................................1 (c) Beneficial Ownership.............................................1 (d) Board............................................................1 (e) Code.............................................................1 (f) Committee........................................................1 (g) Common Stock.....................................................1 (h) Company..........................................................2 (i) Company Holdings.................................................2 (j) Consultant.......................................................2 (k) Continuous Status as a Participant...............................2 (l) Director.........................................................2 (m) Disability.......................................................2 (n) Employee.........................................................2 (o) Exchange Act.....................................................3 (p) Executive Officers...............................................3 (q) Fair Market Value................................................3 (r) FAS 123..........................................................3 (s) FLSA.............................................................3 (t) Former Plan......................................................3 (u) Incentive Stock Option...........................................4 (v) Independent Director.............................................4 (w) Maximum Annual Participant Award.................................4 (x) Nasdaq...........................................................4 (y) New Awards.......................................................4 (z) Non-Employee Director............................................4 (aa) Nonqualified Stock Option........................................4 (bb) Option...........................................................4 (cc) Option Price.....................................................4 (dd) Parent...........................................................4 (ee) Participant......................................................4 (ff) Performance Criteria.............................................4 (gg) Plan.............................................................4 (hh) Reorganization...................................................5 (ii) Reprice..........................................................5 (jj) Restricted Stock.................................................5 (kk) Restricted Stock Units...........................................5 (ll) SAR..............................................................5 (mm) SEC..............................................................5 i (nn) Share............................................................5 (oo) Stand-Alone SARs.................................................5 (pp) Subcommittee.....................................................5 (qq) Subsidiary.......................................................5 (rr) Tandem SARs......................................................5 3. Shares Subject to the Plan.............................................5 (a) Reservation of Shares............................................5 (b) Substitutions and Assumptions....................................6 (c) Securities Law Compliance........................................6 4. Adjustments to Shares Subject to the Plan..............................6 (a) Changes in Capitalization........................................6 (b) Issuance of Securities...........................................7 (c) Corporate Structure..............................................7 5. Plan Administration....................................................8 (a) Authority........................................................8 (b) Powers of the Committee..........................................8 (c) Effect of Committee's Decision...................................9 (d) Delegation and Administration....................................9 6. General Eligibility....................................................9 (a) Awards...........................................................9 (b) Maximum Annual Participant Award.................................9 (c) No Employment/Service Rights....................................10 7. Grant, Terms and Conditions of Options................................10 (a) Designation.....................................................10 (b) Option Price....................................................10 (c) Term of Options.................................................10 (d) Vesting.........................................................10 (e) Substitution of SARs for Options................................11 (f) Exercise........................................................11 8. Grant, Terms and Conditions of Stock Awards...........................11 (a) Designation.....................................................11 (b) Restrictions....................................................11 (c) Performance Criteria............................................11 (d) Vesting.........................................................12 9. Grant, Terms and Conditions of SARs...................................12 (a) Grants..........................................................12 (b) Tandem SARs.....................................................12 (c) Stand-Alone SARs................................................13 10. Procedure for Exercise; Rights as a Shareholder.......................13 (a) Procedure.......................................................13 (b) Method of Payment...............................................14 ii (c) Withholding Obligations.........................................14 (d) Shareholder Rights..............................................14 (e) Non-Transferability of Awards...................................14 11. Expiration of Awards..................................................15 (a) Expiration, Termination or Forfeiture of Awards.................15 (b) Extension of Term...............................................15 12. Term, Amendment and Termination of the Plan...........................15 (a) Term of Plan....................................................15 (b) Amendment and Termination.......................................15 (c) Participants in Foreign Countries...............................15 (d) Effect of Amendment or Termination..............................16 13. Shareholder Approval..................................................16 iii WESTERN WIRELESS CORPORATION 2005 LONG-TERM EQUITY INCENTIVE PLAN 1. PURPOSE OF THE PLAN. The purposes of this Plan are to further the growth, development and financial success of the Company by attracting and retaining the most talented Employees, Consultants and Directors available, and by aligning the long-term interests of Employees, Consultants and Directors with those of the shareholders by providing an opportunity to acquire an ownership interest in the Company and by providing both performance rewards and long term incentives for future contributions to the success of the Company. The Plan permits the grant of Incentive Stock Options, Nonqualified Stock Options, Restricted Stock, Restricted Stock Units, or SARs, at the discretion of the Committee and as reflected in the terms of the Award Agreement. Each Award will be subject to conditions specified in the Plan, such as continued employment or satisfaction of performance criteria. This Plan will serve as a framework for the Committee to establish sub-plans or procedures governing the grants to Employees, Directors and Consultants, including such persons working for the Company outside of the United States. 2. DEFINITIONS. As used herein, the following definitions shall apply: (a) "AWARD" shall mean any award or benefits granted under the Plan, including Options, Restricted Stock, Restricted Stock Units, and SARs. (b) "AWARD AGREEMENT" shall mean a written or electronic agreement between the Company and the Participant setting forth the terms of the Award. Such agreements may contain other terms and conditions, including without limitation a nondisclosure agreement and noncompetition agreement, which the Committee deems appropriate for inclusion in an Award Agreement. The provisions of the various Award Agreements or other agreements entered into under the Plan need not be identical. (c) "BENEFICIAL OWNERSHIP" shall have the meaning set forth in Rule 13d-3 promulgated under the Exchange Act. (d) "BOARD" shall mean the Board of Directors of the Company. (e) "CODE" shall mean the Internal Revenue Code of 1986, as amended. (f) "COMMITTEE" shall mean the Compensation Committee appointed by the Board, which at all times shall consist solely of Independent Directors. (g) "COMMON STOCK" shall mean the Class A Common Stock of the Company, no par value per share. (h) "COMPANY" shall mean Western Wireless Corporation, a Washington corporation and any successor thereto. (i) "COMPANY HOLDINGS" shall have the meaning set forth in Section 4(c) of the Plan. (j) "CONSULTANT" shall mean any person, except an Employee, engaged by the Company or any Subsidiary of the Company, to render personal services to such entity, including as an advisor. (k) "CONTINUOUS STATUS AS A PARTICIPANT" shall mean (i) for Employees, the absence of any interruption or termination of service as an Employee, (ii) for Directors, the absence of any interruption or termination of service as a Director, and (iii) for Consultants, the absence of any interruption, expiration, or termination of such person's consulting or advisory relationship with the Company or the occurrence of any termination event as set forth in such person's Award Agreement. Continuous Status as a Participant shall not be considered interrupted (A) for an Employee in the case of sick leave, maternity leave, infant care leave, medical emergency leave, military leave, or any other leave of absence in each case so long as such leave has been properly approved and taken in accordance with the policies of the Company or any applicable Subsidiary as may be in effect from time to time, and (B) for a Consultant, in the case of any temporary interruption in such person's availability to provide services to the Company which has been authorized in writing by a vice president of the Company prior to its commencement. In the event a Subsidiary ceases to be a Subsidiary, such event will constitute termination of Continuous Status as a Participant with respect to Participants providing services as an Employee, Consultant or Director of such Subsidiary. (l) "DIRECTOR" shall mean a member of the Board. (m) "DISABILITY" shall mean (i) in the case of a Participant whose employment with the Company or a Subsidiary is subject to the terms of an employment or consulting agreement that includes a definition of "Disability," the term "Disability" as used in this Plan shall have the meaning set forth in such employment or consulting agreement during the period that such employment or consulting agreement remains in effect; and (ii) in all other cases, the term "Disability" as used in this Plan shall mean a "permanent and total disability" as the term is defined for purposes of Section 22(e)(3) of the Code. (n) "EMPLOYEE" shall mean any person, including an officer, who is a common law employee of, receives remuneration for personal services to, is reflected on the official human resources database as an employee of, and is on the payroll of the Company or any Subsidiary of the Company. A person is on the payroll if he or she is paid from or at the direction of the payroll department of the Company, or any Subsidiary of the Company. Persons providing services to the Company, or to any Subsidiary of the Company, pursuant to an agreement with a staff leasing organization, temporary workers engaged through or employed by temporary or leasing agencies, and workers who hold themselves out to the Company, or a Subsidiary to which they are providing services, as being independent contractors, or as being 2 employed by or engaged through another company while providing the services, and persons covered by a collective bargaining agreement (unless the collective bargaining agreement applicable to the person specifically provides for participation in this Plan) are not Employees for purposes of this Plan, whether or not such persons are, or may be reclassified by the courts, the Internal Revenue Service, the U. S. Department of Labor, or other person or entity, as common law employees of the Company, or any Subsidiary, either solely or jointly with another person or entity. (o) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended. (p) "EXECUTIVE OFFICERS" shall mean the officers of the Company as such term is defined in Rule 16a-1 under the Exchange Act. (q) "FAIR MARKET VALUE" shall mean, as of any date, the value of the Common Stock determined as follows: (i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market System, the Fair Market Value of a Share of Common Stock shall be the average of the opening and closing sales prices for such stock (or the closing bid, if no sales were reported) as quoted on such system or exchange (or the exchange with the greatest volume of trading in Common Stock) on the day of determination, as reported in the Wall Street Journal or such other source as the Committee deems reliable; (ii) If the Common Stock is quoted on the Nasdaq System (but not on the National Market System thereof) or is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the day of determination, as reported in the Wall Street Journal or such other source as the Committee deems reliable; and (iii) In the absence of an established market for the Common Stock, the Fair Market Value shall be determined in good faith by the Committee as required. (r) "FAS 123" shall mean Statement of Financial Accounting Standard 123, "Accounting for Stock-based Compensation," as promulgated by the Financial Accounting Standards Board. (s) "FLSA" shall mean the Fair Labor Standards Act of 1938, as amended. (t) "FORMER PLAN" shall mean the Western Wireless Corporation Amended and Restated 1994 Management Incentive Stock Option Plan. 3 (u) "INCENTIVE STOCK OPTION" shall mean any Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code. (v) "INDEPENDENT DIRECTOR" shall mean a Director who: (1) meets the independence requirements of Nasdaq, or if Nasdaq shall cease to be the principal exchange or quotation system upon which the shares of Common Stock are listed or quoted, then such exchange or quotation system as the Company elects to list or quote its shares of Common Stock and that the Committee designates as the Company's principal exchange or quotation system; (2) qualifies as an "outside director" under Section 162(m) of the Code; (3) qualifies as a "non-employee director" under Rule 16b-3 promulgated under the Exchange Act; and (4) satisfies independence criteria under any other applicable laws or regulations relating to the issuance of Shares to Employees. (w) "MAXIMUM ANNUAL PARTICIPANT AWARD" shall have the meaning set forth in Section 5(b) of the Plan. (x) "NASDAQ" shall mean The Nasdaq Stock Market, Inc. (y) "NEW AWARDS" shall have the meaning set forth in Section 4(c) of the Plan. (z) "NON-EMPLOYEE DIRECTOR" shall mean a Director who is not an Employee. (aa) "NONQUALIFIED STOCK OPTION" shall mean an Option that does not qualify or is not intended to qualify as an Incentive Stock Option. (bb) "OPTION" shall mean a stock option granted pursuant to Section 7 of the Plan. (cc) "OPTION PRICE" shall mean the per share purchase price of a Share purchased pursuant to an Option, as specified by the Committee in the applicable Award Agreement. (dd) "PARENT" shall mean a "parent corporation," whether now or hereafter existing, as defined in Section 424(e) of the Code. (ee) "PARTICIPANT" shall mean an Employee, Director or Consultant who holds an outstanding Award. (ff) "PERFORMANCE CRITERIA" shall have the meaning set forth in Section 8(c). (gg) "PLAN" shall mean this Western Wireless Corporation 2005 Long-Term Equity Incentive Plan, including any amendments thereto. 4 (hh) "REORGANIZATION" shall have the meaning set forth in Section 4(c) of the Plan. (ii) "REPRICE" shall mean the adjustment or amendment of the exercise price of Options or SARs previously awarded whether through amendment, cancellation, replacement of grants or any other means. (jj) "RESTRICTED STOCK" shall mean a grant of Shares pursuant to Section 8 of the Plan. (kk) "RESTRICTED STOCK UNITS" shall mean a grant of the right to receive Shares in the future or their cash equivalent (or both) pursuant to Section 8 of the Plan. (ll) "SAR" shall mean a stock appreciation right awarded pursuant to Section 9 of the Plan. (mm) "SEC" shall mean the Securities and Exchange Commission. (nn) "SHARE" shall mean one share of Common Stock, as adjusted in accordance with Section 4 of the Plan. (oo) "STAND-ALONE SARS" shall have the meaning set forth in Section 9(c) of the Plan. (pp) "SUBCOMMITTEE" shall have the meaning set forth in Section 5(d) of the Plan. (qq) "SUBSIDIARY" shall mean (1) in the case of an Incentive Stock Option a "subsidiary corporation," whether now or hereafter existing, as defined in Section 424(f) of the Code, and (2) in the case of a Nonqualified Stock Option, Restricted Stock, a Restricted Stock Unit or a SAR, in addition to a subsidiary corporation as defined in (1), (A) a limited liability company, partnership or other entity in which the Company controls fifty percent (50%) or more of the voting power or equity interests, or (B) an entity with respect to which the Company possesses the power, directly or indirectly, to direct or cause the direction of the management and policies of that entity, whether through the Company's ownership of voting securities, by contract or otherwise. (rr) "TANDEM SARS" shall have the meaning set forth in Section 9(a) of the Plan. 3. SHARES SUBJECT TO THE PLAN. (a) RESERVATION OF SHARES. The number of shares of Common Stock that may be issued under the Plan shall be 8,000,000 plus any shares of Common Stock subject to 5 outstanding awards under the Former Plan on the date of shareholder approval of the Plan that later cease to be subject to such awards for any reason other than such awards having been exercised, which shares of Common Stock shall, as of the date such shares cease to be subject to such awards, cease to be available for grant and issuance under the Former Plan, but shall be available for issuance under the Plan. The options granted under the Former Plan shall continue to be administered under the Former Plan until such time as those options have been exercised, expire or become unexercisable for any reason. Notwithstanding anything to the contrary herein, subject to the provisions of Section 4(a), the maximum aggregate number of Shares which may be granted through Incentive Stock Options under the Plan shall not exceed 3,000,000. The aggregate number of Shares available for issuance under the Plan will be reduced by one Share for each Share delivered in settlement of an Option or award of Restricted Stock, Restricted Stock Unit, or SAR. The number of Shares underlying an Award not issued as a result of any of the following actions shall again be available for issuance under the Plan: (i) a payout of a Non-Tandem SAR, or a performance-based Restricted Stock award in the form of cash; (ii) a cancellation, termination, expiration, forfeiture, or lapse for any reason (with the exception of the termination of a Tandem SAR upon exercise of the related Options, or the termination of a related Option upon exercise of the corresponding Tandem SAR) of any Award; or (iii) payment of the Option exercise price and/or payment of any taxes arising upon exercise of the Option by withholding Shares which otherwise would be acquired on exercise or issued upon such payout. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. The Shares may be authorized but unissued, or reacquired shares of Common Stock. (b) SUBSTITUTIONS AND ASSUMPTIONS. The Board or the Committee shall have the right to substitute or assume Awards in connection with mergers, reorganizations, separations, or other transactions to which Section 424(a) of the Code applies, provided such substitutions and assumptions are permitted by Section 424 of the Code and the regulations promulgated thereunder. The number of Shares reserved pursuant to Section 3(a) may be increased by a corresponding number of Awards assumed and, in the case of substitution, by the net increase in the number of Shares subject to Awards before and after the substitution. (c) SECURITIES LAW COMPLIANCE. Shares shall not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated under either such Act, and the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance. 4. ADJUSTMENTS TO SHARES SUBJECT TO THE PLAN. (a) CHANGES IN CAPITALIZATION. If any change is made to the Shares by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Shares as a class without the Company's receipt of 6 consideration, appropriate adjustments shall be made to (i) the maximum number and/or class of securities issuable under the Plan, (ii) the number and/or class of securities and/or the price per Share covered by outstanding Awards under the Plan, and (iii) the Maximum Annual Participant Award. The Committee may also make adjustments described in (i)-(iii) of the previous sentence in the event of any distribution of assets to shareholders other than a normal cash dividend. In determining adjustments to be made under this Section 4, the Committee may take into account such factors as it deems appropriate, including the restrictions of applicable law and the potential tax consequences of an adjustment, and in light of such factors may make adjustments that are not uniform or proportionate among outstanding Awards. Adjustments, if any, and any determinations or interpretations, including any determination of whether a distribution is other than a normal cash dividend, made by the Committee shall be final, binding and conclusive. In lieu of the payment of a dividend, the Committee in its discretion may provide holders of Restricted Stock or Restricted Stock Units a dividend equivalent right, in the form of additional Shares or units, with respect to the unvested Shares or unvested units the Participant shall be entitled to receive or purchase. For purposes of this Section 4, conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." (b) ISSUANCE OF SECURITIES. Except as expressly provided herein, no issuance by the Company of shares of any class, or securities convertible into shares of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an Award. (c) CORPORATE STRUCTURE. In the event of a merger, consolidation, acquisition of property or stock, separation, reorganization or other change to the capital or business structure of the Company (including, without limitation, by means of an exchange offer or other transaction) (collectively, a "Reorganization") the effect of which is to organize a parent company of the Company which will own not less than 50% of the capital stock of the Company (such parent company is hereinafter referred to as "Company Holdings") in which the shareholders of the Company prior to the Reorganization hold the same proportional share interests in Company Holdings after the Reorganization as they held in the Company prior to the Reorganization, the Committee shall have the authority to effect, without the consent of the Participants, (i) the cancellation of all outstanding Awards granted under the Plan and substitute therefor awards with respect to shares of Company Holdings ("New Awards"), or (ii) the assumption by Company Holdings of Awards granted under the Plan; provided, however, that (x) immediately after the Reorganization the excess of the aggregate fair market value of all shares subject to New Awards over the aggregate exercise prices of all shares subject to New Awards shall equal but not be more than the excess of the aggregate fair market value immediately preceding the Reorganization of all Shares subject to Awards granted under the Plan over the aggregate exercise prices of all Shares subject to Awards granted under the Plan, and (y) New Awards, or the assumption or substitution of Awards granted under the Plan, do not give a Participant additional benefits which such Participant did not have under Awards granted under the Plan. Such a Reorganization shall not be treated as a Change of Control for purposes of the Plan and related Award Agreements. The grant of Awards under this Plan will in no way affect 7 the right of the Company to adjust, reclassify, reorganize, or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets or effect any other Reorganization. 5. PLAN ADMINISTRATION. (a) AUTHORITY. The Plan shall be administered by the Committee. The Committee shall have full and exclusive power to administer the Plan on behalf of the Board, subject to such terms and conditions as the Committee may prescribe. The Board, in its sole discretion, may exercise any authority of the Committee under the Plan in lieu of the Committee's exercise thereof and in such instances references in the Plan to the Committee shall refer to the Board. (b) POWERS OF THE COMMITTEE. Subject to the other provisions of this Plan, the Committee shall have the authority, in its discretion: (i) to grant Incentive Stock Options to Employees and to grant Nonqualified Stock Options, Restricted Stock, Restricted Stock Units, and SARs to Employees, Consultants and Directors and to determine the terms and conditions of such Awards, including the determination of the Fair Market Value of the Shares and the exercise price, and to modify or amend each Award, with the consent of the Participant when required; (ii) to determine the Employees, Consultants and Directors to whom Awards, if any, will be granted hereunder, the timing of such Awards, and the number of Shares to be represented by each Award; (iii) to construe and interpret the Plan, the Awards granted hereunder, and any Award Agreement; (iv) to prescribe, amend, and rescind rules and regulations relating to the Plan, including the form of Award Agreement, and manner of acceptance of an Award, such as correcting a defect or supplying any omission, or reconciling any inconsistency so that the Plan or any Award Agreement complies with applicable law, regulations and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purposes of the Plan or any Award Agreement; (v) to establish performance criteria for Awards made pursuant to the Plan in accordance with a methodology established by the Committee, and to determine whether performance goals have been attained; (vi) to accelerate or defer (with the consent of the Participant) the exercise or vested date of any Award; 8 (vii) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Award previously granted by the Committee; (viii) to establish subplans, procedures or guidelines for the grant of Awards to Employees, Directors and Consultants, including such persons working for the Company outside of the United States; (ix) to authorize the cancellation, forfeiture or suspension of an Award; and (x) to make all other determinations deemed necessary or advisable for the administration of the Plan; Provided that, no consent of a Participant is necessary under clauses (i) or (vi) if a modification, amendment, acceleration, or deferral, in the reasonable judgment of the Committee confers a benefit on the Participant or is made pursuant to an adjustment in accordance with Section 4. (c) EFFECT OF COMMITTEE'S DECISION. All decisions, determinations, and interpretations of the Committee shall be final, conclusive and binding on all Participants, the Company, any shareholder and all other persons. (d) DELEGATION AND ADMINISTRATION. Consistent with the Committee's charter, as such charter may be amended from time to time, the Committee may delegate to one or more subcommittees consisting of members of the Committee or other Directors who are Independent Directors (any such committee a "Subcommittee") the administration of the Plan, and such administrator(s) may have the authority to directly, or under their supervision, execute and distribute agreements or other documents evidencing or relating to Awards granted by the Committee under this Plan, to maintain records relating to the grant, vesting, exercise, forfeiture or expiration of Awards, to process or oversee the issuance of Shares upon the exercise, vesting and/or settlement of an Award, to interpret the terms of Awards and to take such other actions as the Committee may specify. Any action by any such Subcommittee within the scope of such delegation shall be deemed for all purposes to have been taken by the Committee. 6. GENERAL ELIGIBILITY. (a) AWARDS. Awards may be granted to Employees, Directors or Consultants, provided however that Incentive Stock Options may only be granted to Employees. Granting of all Awards is at the discretion of the Committee. (b) MAXIMUM ANNUAL PARTICIPANT AWARD. The aggregate number of Shares with respect to which an Award or Awards may be granted to any one Participant in any one taxable year of the Company (the "Maximum Annual Participant Award") shall not exceed 2,000,000 shares of Common Stock (adjusted, proportionately, in the event of any stock split or 9 stock dividend with respect to the Shares). If an Option is in tandem with a SAR, such that the exercise of the Option or SAR with respect to a Share cancels the tandem SAR or Option right, respectively, with respect to each Share, the tandem Option and SAR rights with respect to each Share shall be counted as covering one Share for purposes of the Maximum Annual Participant Award. (c) NO EMPLOYMENT/SERVICE RIGHTS. Nothing in the Plan shall confer upon any Employee, Consultant or Director the right to an Award or to continue in service as an Employee, Consultant or Director for any period of specific duration, or interfere with or otherwise restrict in any way the rights of the Company (or any Subsidiary employing or retaining such person), or of any Employee, Consultant or Director, which rights are hereby expressly reserved by each, to terminate such person's services at any time for any reason, with or without cause. 7. GRANT, TERMS AND CONDITIONS OF OPTIONS. (a) DESIGNATION. Each Option shall be designated in an Award Agreement as either Incentive Stock Options or Nonqualified Stock Options. However, notwithstanding the preceding sentence, if an Option is not designated as an Incentive Stock Option, such Option will be deemed to be a Nonqualified Stock Option. To the extent that the aggregate Fair Market Value of the Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Employee during any calendar year exceeds $100,000, such excess Options shall be treated as Nonqualified Stock Options. Options shall be taken into account in the order in which they were granted. (b) OPTION PRICE. The per Share exercise price under an Incentive Stock Option (i) granted to an Employee who, at the time of grant of such Incentive Stock Option, owns Shares representing more than ten percent (10%) of the voting power of all classes of Shares of the Company or any Parent or Subsidiary, shall be no less than 110% of the Fair Market Value per Share on the date of grant, or (ii) granted to any other Participant, shall be no less than 100% of the Fair Market Value per Share on the date of grant. Subject to the discretion of the Committee, the per Share exercise price under a Nonqualified Stock Option or SAR shall be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. In no event shall the Board or the Committee be permitted to Reprice an Option after the date of grant. (c) TERM OF OPTIONS. The term of each Incentive Stock Option shall be no more than ten (10) years from the date of grant. However, in the case of an Incentive Stock Option granted to an Employee who, at the time the Option is granted, owns Shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company or any Parent or Subsidiary, the term of the Option shall be no more than five (5) years from the date of grant. The term of all Nonqualified Options shall be at the discretion of the Committee. (d) VESTING. Unless the Committee determines otherwise, to the extent Options vest and become exercisable in increments, such Options shall cease vesting as of the 10 date of the Participant's death, Disability or termination of such Participant's Continuous Status as a Participant for any other reasons. (e) SUBSTITUTION OF SARS FOR OPTIONS. Notwithstanding the foregoing, if the Company is required to or elects to expense the cost of Options pursuant to FAS 123 (or a successor or other standard), the Committee shall have the sole discretion to substitute without receiving Participants' permission, SARs paid only in stock for outstanding Options; provided, the terms of the substituted stock SARs are the same as the terms of the Options, the number of shares underlying the number of stock SARs equals the number of shares underlying the Options and the difference between the Fair Market Value of the underlying Shares and the grant price of the SARs is equivalent to the difference between the Fair Market Value of the underlying Shares and the exercise price of the Options. (f) EXERCISE. Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Committee at the time of grant, and as shall be permissible under the terms of the Plan. No fractional Shares may be issued or delivered pursuant to the Plan or any Award. 8. GRANT, TERMS AND CONDITIONS OF STOCK AWARDS. (a) DESIGNATION. Restricted Stock or Restricted Stock Units may be granted either alone, in addition to, or in tandem with other Awards granted under the Plan. Restricted Stock or Restricted Stock Units may include a dividend equivalent right, as permitted by Section 4. After the Committee determines that it will offer Restricted Stock or Restricted Stock Units, it will advise the Participant in writing or electronically, by means of an Award Agreement, of the terms, conditions and restrictions, including vesting, if any, related to the offer, including the number of Shares that the Participant shall be entitled to receive or purchase, the price to be paid, if any, and, if applicable, the time within which the Participant must accept the offer. The offer shall be accepted by execution of an Award Agreement or as otherwise directed by the Committee. Restricted Stock Units may be paid for as permitted by Section 10(b). The term of each award of Restricted Stock or Restricted Stock Units shall be at the discretion of the Committee. (b) RESTRICTIONS. Subject to Section 8(c), the Committee may impose such conditions or restrictions on the Restricted Stock or Restricted Stock Units granted pursuant to the Plan as it may determine advisable, including the achievement of specific performance goals, time based restrictions on vesting, or others. If the Committee has established performance goals, the Committee in its sole discretion shall determine whether a Participant has satisfied the performance goals. (c) PERFORMANCE CRITERIA. Restricted Stock and Restricted Stock Units granted pursuant to the Plan that are intended to qualify as "performance based compensation" under Section 162(m) of the Code shall be subject to the attainment of performance goals relating to the Performance Criteria selected by the Committee and specified at the time such Restricted 11 Stock and Restricted Stock Units are granted. For purposes of this Plan, "Performance Criteria" means one or more of the following (as selected by the Committee): (i) cash flow; (ii) earnings per share; (iii) earnings before interest, taxes, and amortization; (iv) Adjusted EBITDA; (v) return on equity; (vi) total shareholder return; (vii) share price performance; (viii) return on capital; (ix) return on assets or net assets; (x) revenue; (xi) earnings growth; (xii) operating income; (xiii) operating profit; (xiv) profit margin; (xv) return on operating revenue; (xvi) return on invested capital; (xvii) market price; (xviii) brand recognition; (xix) customer satisfaction; (xx) operating efficiency; (xxi) productivity; (xxii) subscriber growth; or (xxiii) subscriber retention. Any of these Performance Criteria may be used to measure the performance of the Company as a whole or any business unit or division of the Company. (d) VESTING. Unless the Committee determines otherwise, the Award Agreement shall provide for the forfeiture of the non-vested Shares underlying Restricted Stock or Restricted Stock Units upon cessation of a Participant's Continuous Status as a Participant. To the extent that the Participant purchased the Shares granted under such Restricted Stock or Restricted Stock Units and any such Shares remain non-vested at the time of cessation of a Participant's Continuous Status as a Participant, the cessation of a Participant's Continuous Status as a Participant shall cause an immediate sale of such non-vested Shares to the Company at the original price per Share paid by the Participant. 9. GRANT, TERMS AND CONDITIONS OF SARS. (a) GRANTS. The Committee shall have the full power and authority, exercisable in its sole discretion, to grant SARs to selected Employees, Consultants and Directors. The Committee is authorized to grant both tandem stock appreciation rights consisting of SARs with underlying Options ("Tandem SARs") and stand-alone stock appreciation rights consisting of SARs with no underlying Options ("Stand-Alone SARs"). The term of a SAR shall be at the discretion of the Committee. In no event shall the Board or the Committee be permitted to Reprice a SAR after the date of grant without shareholder approval. (b) TANDEM SARS. (i) Participants may be granted a Tandem SAR, exercisable upon such terms and conditions as the Committee shall establish, to elect between the exercise of the underlying Option for Shares or the surrender of the Option in exchange for a distribution from the Company in an amount equal to the excess of (A) the Fair Market Value (on the Option surrender date) of the number of Shares in which the Participant is at the time vested under the surrendered Option (or surrendered portion thereof) over (B) the aggregate exercise price payable for such vested Shares. (ii) No such Option surrender shall be effective unless it is approved by the Committee, either at the time of the actual Option surrender or at any earlier time. If the surrender is so approved, then the distributions to which the Participant shall become entitled under this Section 9(b) may be made in Shares valued at Fair Market Value (on the Option 12 surrender date), in cash, or partly in Shares and partly in cash, as the Committee shall deem appropriate. (iii) If the surrender of an Option is not approved by the Committee, then the Participant shall retain whatever rights he or she had under the surrendered Option (or surrendered portion thereof) on the Option surrender date and may exercise such rights at any time prior to the later of (A) five (5) business days after the receipt of the rejection notice or (B) the last day on which the Option is otherwise exercisable in accordance with the terms of the instrument evidencing such Option, but in no event may such rights be exercised more than ten (10) years after the date of the Option grant. (c) STAND-ALONE SARS. (i) A Participant may be granted a Stand-Alone SAR not tied to any underlying Option under Section 7 of the Plan. The Stand-Alone SAR shall cover a specified number of Shares and shall be exercisable upon such terms and conditions as the Committee shall establish. Upon exercise of the Stand-Alone SAR, the holder shall be entitled to receive a distribution from the Company in an amount equal to the excess of (A) the aggregate Fair Market Value (on the exercise date) of the Shares underlying the exercised right over (B) the aggregate base price in effect for those Shares. (ii) The number of Shares underlying each Stand-Alone SAR and the base price in effect for those Shares shall be determined by the Committee at the time the Stand-Alone SAR is granted. In no event, however, may the base price per Share be less than the Fair Market Value per underlying Share on the grant date. (iii) The distribution with respect to an exercised Stand-Alone SAR may be made in Shares valued at Fair Market Value on the exercise date, in cash, or partly in Shares and partly in cash, as the Committee shall deem appropriate. 10. PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. (a) PROCEDURE. An Award shall be exercised when written notice of exercise has been given to the Company, or the brokerage firm or firms approved by the Company to facilitate exercises and sales under this Plan, in accordance with the terms of the Award by the person entitled to exercise the Award and full payment for the Shares with respect to which the Award is exercised has been received by the Company or the brokerage firm or firms, as applicable. The notification to the brokerage firm shall be made in accordance with procedures of such brokerage firm approved by the Company. Full payment may, as authorized by the Committee, consist of any consideration and method of payment allowable under the terms of this Plan. The Company shall issue (or cause to be issued) such Share promptly upon exercise of the Award. In the event that the exercise of an Award is treated in part as the exercise of an Incentive Stock Option and in part as the exercise of a Nonqualified Stock Option pursuant to Section 7(a), the Company shall issue a share certificate evidencing the Shares treated as 13 acquired upon the exercise of an Incentive Stock Option and a separate share certificate evidencing the Shares treated as acquired upon the exercise of a Nonqualified Stock Option, and shall identify each such certificate accordingly in its share transfer records. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Share is issued, except as provided in Section 4 of the Plan. (b) METHOD OF PAYMENT. The consideration to be paid for any Shares to be issued upon exercise or other required settlement of an Award, including a method of payment, shall be determined by the Committee in its sole discretion at the time of grant of the Award or settlement, and which forms may include at the Committee's discretion: (i) check; (ii) wire transfer; (iii) tender of shares of Common Stock owned by the Participant in accordance with rules established by the Committee from time to time; and (iv) a request that the Company or a designated brokerage firm conduct a cashless exercise of the Option. Shares used to pay the Option Price shall be valued at their Fair Market Value on the exercise date. Payment of the aggregate Option Price by means of tendering previously-owned shares of Common Stock shall not be permitted when the same may, in the reasonable opinion of the Company, cause the Company to record a loss or expense as a result thereof. (c) WITHHOLDING OBLIGATIONS. To the extent required by applicable federal, state, local or foreign law, the Committee may and/or a Participant shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise with respect to any Incentive Stock Option, Nonqualified Stock Option, SAR, Restricted Stock or Restricted Stock Units, or any sale of Shares. The Company shall not be required to issue Shares or to recognize the disposition of such Shares until such obligations are satisfied. These obligations may, at the sole discretion of the Committee, be satisfied by having the Company withhold a portion of the Shares that otherwise would be issued to a Participant under such Award or by tendering Shares previously acquired by the Participant in accordance with rules established by the Committee from time to time. (d) SHAREHOLDER RIGHTS. Except as otherwise provided in this Plan, until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Shares subject to the Award, notwithstanding the exercise of the Award. (e) NON-TRANSFERABILITY OF AWARDS. An Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in exchange for consideration, and may not be transferred other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant; unless the Committee permits further transferability, on a general or specific basis, in which case the Committee may impose conditions and limitations on any permitted transferability. 14 11. EXPIRATION OF AWARDS. (a) EXPIRATION, TERMINATION OR FORFEITURE OF AWARDS. Unless otherwise provided in the applicable Award Agreement or any severance agreement, vested Awards granted under this Plan shall expire, terminate, or otherwise be forfeited as follows: (i) Six (6) months and one (1) day (except in the case of an Incentive Stock Option in which case such period shall be shortened to three (3) months) after the date of termination of a Participant's Continuous Status as a Participant other than in circumstances covered by (ii) or (iii) below; (ii) twelve (12) months after the date on which a Participant ceased performing services as a result of his or her total and permanent Disability; and (iii) twenty-four (24) months from the date of the death of a Participant whose Continuous Status as a Participant terminated as a result of his or her death. (b) EXTENSION OF TERM. Notwithstanding subsection (a) above, the Committee shall have the authority to extend the expiration date of any outstanding Options or SARs other than an Incentive Stock Option in circumstances in which it deems such action to be appropriate (provided that no such extension shall extend the term of an Option or SAR beyond the date on which the Award would have expired or been forfeited if there had been no termination of the Employee's Continuous Status as a Participant). 12. TERM, AMENDMENT AND TERMINATION OF THE PLAN. (a) TERM OF PLAN. The Plan shall become effective as of the date the Plan is first adopted by the Board and shall continue in effect until the tenth anniversary of such date or until sooner terminated under this Section 12 or Section 13 of the Plan or extended by an amendment approved by the shareholders of the Company pursuant to Section 12(b). (b) AMENDMENT AND TERMINATION. The Board or the Committee may amend or terminate the Plan from time to time in such respects as the Board may deem advisable (including, but not limited to amendments which the Board deems appropriate to enhance the Company's ability to claim deductions related to stock option exercises); provided that to the extent required by the Code or the rules of Nasdaq or the SEC, shareholder approval shall be required for any amendment of the Plan. Subject to the foregoing, it is specifically intended that the Board or Committee may amend the Plan without shareholder approval to comply with legal, regulatory and listing requirements and to avoid unanticipated consequences deemed by the Committee to be inconsistent with the purpose of the Plan or any Award Agreement. (c) PARTICIPANTS IN FOREIGN COUNTRIES. The Committee shall have the authority to adopt such modifications, procedures, and subplans as may be necessary or desirable to comply with provisions of the laws of foreign countries in which the Company or its 15 Subsidiaries may operate to assure the viability of the benefits from Awards granted to Participants performing services in such countries and to meet the objectives of the Plan. (d) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or termination of the Plan shall not affect Awards already granted and such Awards shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the Participant and the Committee, which agreement must be in writing and signed by the Participant and the Company. 13. SHAREHOLDER APPROVAL. The Plan is subject to approval by the shareholders of the Company in accordance with applicable Nasdaq rules. Notwithstanding anything in the Plan to the contrary, (i) no Awards other than Options may be granted under the Plan prior to such shareholder approval, (ii) no Options granted under the Plan may be exercised prior to such shareholder approval and (iii) in the event shareholder approval is not obtained within twelve (12) months of the date the Plan is first adopted by the Board, then any Options granted under the Plan shall be forfeited by the holders thereof and the Plan shall be terminated. 16 EX-99.2 5 v04311orexv99w2.txt EXHIBIT 99.2 Exhibit 99.2 WESTERN WIRELESS CORPORATION 2005 LONG-TERM EQUITY INCENTIVE PLAN STOCK OPTION AGREEMENT THIS STOCK OPTION AGREEMENT (the "Option Agreement") is entered into as of , by and between WESTERN WIRELESS CORPORATION, a Washington corporation (the "Company"), and (the "Optionee"). 1. GRANT OF OPTION. (a) Option. Pursuant to the Western Wireless Corporation 2005 Long-Term Equity Incentive Plan (the "Plan") and on the terms and conditions stated below, the Company hereby grants to the Optionee the option (the "Option") to purchase from the Company any or all of the number of shares of Common Stock of the Company (the "Shares") set forth on Schedule I attached hereto and constituting a part of the Option Agreement at the price and on the terms set forth therein. The number of Shares subject to the Option are subject to adjustment in accordance with Section 4 of the Plan. (b) Plan. The Option is subject to and may be exercised only in accordance with the Plan, a copy of which the Optionee acknowledges having received and read. The Optionee agrees to be bound by all of the terms and conditions of the Plan, which are incorporated into this Agreement by this reference. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Plan. (c) Tax Treatment. The Optionee should consult his or her tax advisor with respect to the tax consequences upon exercise of the Option or sale of the Shares acquired pursuant to this Option. (d) Method of Payment. The form and method of payment of the aggregate Exercise Price shall be as designated below: x cash or check x cashless exercise 2. EXERCISE OF OPTION. (a) Vesting. This Option is exercisable during its term in accordance with the schedule set forth in Schedule I attached hereto and the applicable provisions of the Plan and this Option Agreement. (b) Method of Exercise. This Option is exercisable by delivery of an exercise notice, in the form attached hereto as Exhibit A (the "Exercise Notice"), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be 1 required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be signed by the Optionee and shall be delivered to the Secretary of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price. No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with all relevant provisions of law and the requirements of any stock exchange upon which the Shares are then listed. An Option may not be exercised for a fraction of a Share. 3. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any manner other than by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by the Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee. 4. TERM OF OPTION. This Option may be exercised not later than , and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement. In the event of the Optionee's death, Disability or other termination of Optionee's Continuous Status as a Participant, unless otherwise provided herein or in the Plan, only those options that are exercisable pursuant to Schedule I hereto shall be exercisable. 5. TAX CONSEQUENCES. Some of the federal tax consequences relating to this Option, as of the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. Exercising the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value of the Exercised Shares on the date of exercise over their aggregate Exercise Price. The Company will be required to withhold from the Optionee's compensation or collect from the Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise. 6. MISCELLANEOUS PROVISIONS. (a) Rights as a Shareholder. Neither the Optionee nor the Optionee's representative shall have any rights as a shareholder of the Company with respect to any Shares subject to the Option until such Shares have been issued in the name of the Optionee or the Optionee's representative. (b) No Employment Rights. Neither the Plan nor this Option Agreement shall confer upon any Optionee any right to continue in the employ of the Company or any affiliate or 2 constitute a contract or agreement of employment or interfere in any way with any right that the Company or an affiliate may have to reduce such Optionee's compensation or to terminate such Optionee's employment at any time with or without cause; however, nothing contained in the Plan or in this Agreement shall affect any contractual rights of an Employee pursuant to a written employment agreement. (c) Confidentiality. Optionee acknowledges that Optionee may be given access to certain confidential or secret information and material relating to or owned by the Company, including but not limited to the Company's proposed acquisitions, proposed FCC filings, financial information, customer lists, files and other information regarding individual customers, the Company's business or the Company's organization and operations, solely in order that Optionee may best perform Optionee's duties. Such information and material shall be the sole and exclusive property of the Company, and Optionee agrees that during the term of this Agreement and at all times thereafter Optionee will not disclose such confidential or secret information or material to any governmental agency, person, entity, firm or corporation without the explicit prior written consent of Company. Optionee agrees to return to Company promptly upon termination of the Agreement unless waived in writing by the Company all correspondence, letters, documents or other tangible things or copies thereof (whether stored in hard copy, in electromagnetic media, or in any other form) which mention or contain said confidential or secret information or material. All information and materials or product provided, generated or produced by Optionee under Optionee's employment to the Company shall be and remain the sole and exclusive property of Company and shall be held by Optionee as a trustee for the benefit of the Company. (d) Covenant Not to Compete. Optionee agrees that, during the term of Optionee's employment and for a period of one year immediately following the termination of such employment for any reason whatsoever (the "Restricted Period"), Optionee will not, either directly or indirectly, with or without compensation, individually or as an employee, broker, agent, consultant, contractor, advisor, solicitor, greater than 5% stockholder, trust beneficiary, proprietor, partner, or person interested in, affiliated with or rendering services to any other entity, engage in, provide or offer to provide, or assist anyone in providing, services to or for a business that is substantially the same as or similar to the Company's business or that competes with the Company's business, directly or indirectly, within the applicable commercial mobile radio services market or markets serviced by the Company and in which Optionee performs or performed services for the Company. Optionee shall not at any time during the Restricted Period directly or indirectly compete with the Company, its affiliates or its dealers, within such market or markets. (e) Notice. Any notice required by the terms of this Agreement or the Plan shall be given in writing and shall be deemed effective upon personal delivery or upon deposit with the United States Postal Service, by registered or certified mail with postage and fees prepaid and addressed to the party entitled to such notice at the address shown below such party's 3 signature on this Agreement, or at such other address as such party may designate by ten (10) days' advance written notice to the other party to this Agreement. (f) Compliance with Applicable Laws. Shares will not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares shall comply with all relevant provisions of law and the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance. As a condition to the grant or exercise of an Option, or to the issuance of any Shares under any Option, the Company may require the Optionee to provide such representations, covenants, warranties and agreements which, in the opinion of counsel for the Company, are required to comply with applicable law or satisfy the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted. By your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Plan and this Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan and Option Agreement. OPTIONEE: WESTERN WIRELESS CORPORATION - ------------------------------------ By: ----------------------------------- - ------------------------------------ Title: - ------------------------------------ (address) Social Security No. ---------------- 4 CONSENT OF SPOUSE The undersigned spouse of Optionee has read and hereby approves the terms and conditions of the Plan and this Option Agreement. In consideration of the Company's granting his or her spouse the right to purchase Shares as set forth in the Plan and this Option Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Option Agreement and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned's spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Option Agreement. Date: ------------------------------------------ ----------------------- Spouse of Optionee 5 SCHEDULE I Optionee's Name: Date of Grant of Option: Vesting Schedule: The Option vests in four (4) equal annual increments commencing , with the first vesting date being . Vesting shall also be subject to written agreement, if any, between the Company and Optionee expressly relating to acceleration of vesting of Options. Exercise Price per Share: $ Total Number of Shares that may be purchased pursuant to the Option: Option Term/Expiration Date: Exercise Period After Termination of Employment: Optionee shall have until six (6) months and one (1) day following the date of termination of the Optionee's Continuous Status as a Participant to exercise the Option unless such termination is the result of death or total and permanent Disability, in which event Optionee shall have the time specified in the Plan to exercise the Option following termination of Continuous Status as a Participant. Type of Option: Nonstatutory Stock Option 6 Conditional Exercise/ Assumability of Options: In the event of the proposed dissolution or liquidation of the Company, upon notice to Optionee, the Option will terminate immediately prior to the consummation of such proposed action, unless otherwise provided by the Committee. The Committee may, in the exercise of its sole discretion in such circumstances, declare that any Option shall terminate as of a date fixed by the Committee and give each Optionee the right to exercise an Option as to all or any part of the shares underlying the Option (the "Optioned Stock"). In the event of a proposed sale, lease, exchange or other transfer of all or substantially all of the assets of the Company, the merger or consolidation of the Company with or into another corporation (other than with an affiliate(s) of the Company in which the Company is the surviving entity) or pursuant to which shares of Common Stock would be converted into cash, securities or other property or the tender offer or takeover bid for the Shares other than a tender offer by the Company (each, together with a proposed dissolution or liquidation of the Company, a "Triggering Event") the Option shall be assumed or an equivalent option shall be substituted on the same economic terms and conditions by such successor corporation, unless such successor corporation does not agree to assume the Option or to substitute an equivalent option on the same economic terms and conditions, in which case the Committee shall, in lieu of such assumption or substitution, provide for the Optionee to have the right to exercise the Option as to all or any portion, in the Optionee's discretion, of the Optioned Stock. If the Committee makes an Option fully exercisable in lieu of assumption or substitution in the event of a Triggering Event, the Committee shall notify the Optionee that the Option shall be fully exercisable until two (2) days prior to the proposed effective date of the Triggering Event (as such effective date may be delayed from time to time), subject to the following provisions of this Section. The exercise of an Option by Optionee under such circumstances shall be deemed to be a conditional exercise subject to the consummation of the respective Triggering Event. If the respective Triggering Event is not 7 consummated, then such conditional exercise shall be deemed rescinded. 8 EXHIBIT A WESTERN WIRELESS CORPORATION 2005 LONG-TERM EQUITY INCENTIVE PLAN EXERCISE NOTICE Western Wireless Corporation 3650 131st Avenue SE, Ste. 200 Bellevue, Washington 98006 Attention: Secretary 1. Exercise of Option. Effective as of today, _______________________, the undersigned ("Optionee") hereby elects to purchase ___________ shares (the "Shares") of the Class A Common Stock of Western Wireless Corporation (the "Company") under and pursuant to the Western Wireless Corporation2005 Long-Term Equity Incentive Plan (the "Plan") and the Stock Option Agreement dated (the "Option Agreement"). The purchase price for the Shares shall be $ , as required by the Option Agreement. 2. Delivery of Payment. Optionee herewith delivers to the Company the full purchase price for the Shares. 3. Representations of Optionee. Optionee acknowledges that Optionee has received and read and understands the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions. 4. Rights as Shareholder. Subject to the terms and conditions of this Agreement, Optionee shall have all of the rights of a shareholder of the Company with respect to the Shares from and after the date that [a stock certificate evidencing the Shares is issued by the Company (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company)] until such time as Optionee disposes of the Shares. 5. Tax Consultation. Optionee understands that Optionee may suffer adverse tax consequences as a result of Optionee's purchase or disposition of the Shares. Optionee represents that Optionee has consulted with any tax consultants Optionee deems advisable in connection with the purchase or disposition of the Shares and that Optionee is not relying on the Company for any tax advice. 6. Compliance with the Law. Optionee understands that no Option may be exercised, and the Company will not be obligated to issue any shares unless, in the opinion of counsel for the Company, such exercise and issuance is in compliance with all applicable federal and state laws and satisfies the requirements of any stock exchange or quotation system upon which the shares may be listed or quoted. As a condition to the issuance of Shares, the Committee may require the Optionee to agree to comply with such provisions of federal and state 9 laws, or such requirements of any stock exchange or quotation system, as may be applicable to the issuance and sale of the Shares to the Optionee, and the Optionee agrees to deliver such written agreements, representations, warranties and covenants as, in the opinion of counsel to the Company, are required for such compliance. 7. Withholding. Optionee acknowledges that the Company's obligation to deliver stock certificates upon the exercise of this Option is subject to Optionee's satisfaction of all applicable federal, state and local income and employment tax withholding requirements. Optionee represents that such requirements have been satisfied. 8. Entire Agreement; Governing Law. The Plan and Option Agreement are incorporated herein by reference. This Exercise Notice, the Plan and the Option Agreement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and such agreement is governed by Washington law. Submitted by: Accepted by: OPTIONEE: WESTERN WIRELESS CORPORATION - ---------------------------------- By: ------------------------------ Address: Title: ---------------------------- - ---------------------------------- Address: - ---------------------------------- 3650 131st Avenue SE, Ste. 200 Bellevue, Washington 98006 10 EX-99.3 6 v04311orexv99w3.txt EXHIBIT 99.3 Exhibit 99.3 WESTERN WIRELESS CORPORATION 2005 LONG-TERM EQUITY INCENTIVE PLAN STOCK OPTION AGREEMENT THIS STOCK OPTION AGREEMENT (the "Option Agreement") is entered into as of , by and between WESTERN WIRELESS CORPORATION, a Washington corporation (the "Company"), and (the "Optionee"). 1. GRANT OF OPTION. (a) Option. Pursuant to the Western Wireless Corporation 2005 Long-Term Equity Incentive Plan (the "Plan") and on the terms and conditions stated below, the Company hereby grants to the Optionee the option (the "Option") to purchase from the Company any or all of the number of shares of Common Stock of the Company (the "Shares") set forth on Schedule I attached hereto and constituting a part of the Option Agreement at the price and on the terms set forth therein. The number of Shares subject to the Option are subject to adjustment in accordance with Section 4 of the Plan. (b) Plan. The Option is subject to and may be exercised only in accordance with the Plan, a copy of which the Optionee acknowledges having received and read. The Optionee agrees to be bound by all of the terms and conditions of the Plan, which are incorporated into this Agreement by this reference. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Plan. (c) Tax Treatment. The Optionee should consult his or her tax advisor with respect to the tax consequences upon exercise of the Option or sale of the Shares acquired pursuant to this Option. (d) Method of Payment. The form and method of payment of the aggregate Exercise Price shall be as designated below: x cash or check x cashless exercise 2. EXERCISE OF OPTION. (a) Vesting. This Option is exercisable during its term in accordance with the schedule set forth in Schedule I attached hereto and the applicable provisions of the Plan and this Option Agreement. (b) Method of Exercise. This Option is exercisable by delivery of an exercise notice, in the form attached hereto as Exhibit A (the "Exercise Notice"), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be 1 signed by the Optionee and shall be delivered to the Secretary of the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price. No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with all relevant provisions of law and the requirements of any stock exchange upon which the Shares are then listed. An Option may not be exercised for a fraction of a Share. 3. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any manner other than by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by the Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee. 4. TERM OF OPTION. This Option may be exercised not later than , and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement. In the event of the Optionee's death, Disability or other termination of Optionee's Continuous Status as a Participant, unless otherwise provided herein or in the Plan, only those options that are exercisable pursuant to Schedule I hereto shall be exercisable. 5. TAX CONSEQUENCES. Some of the federal tax consequences relating to this Option, as of the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES. Exercising the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value of the Exercised Shares on the date of exercise over their aggregate Exercise Price. The Company will be required to withhold from the Optionee's compensation or collect from the Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise. 6. MISCELLANEOUS PROVISIONS. (a) Rights as a Shareholder. Neither the Optionee nor the Optionee's representative shall have any rights as a shareholder of the Company with respect to any Shares subject to the Option until such Shares have been issued in the name of the Optionee or the Optionee's representative. (b) No Employment Rights. Neither the Plan nor this Option Agreement shall confer upon any Optionee any right to continue in the employ of the Company or any affiliate or constitute a contract or agreement of employment or interfere in any way with any right that the 2 Company or an affiliate may have to reduce such Optionee's compensation or to terminate such Optionee's employment at any time with or without cause; however, nothing contained in the Plan or in this Agreement shall affect any contractual rights of an Employee pursuant to a written employment agreement. (c) Confidentiality. Optionee acknowledges that Optionee may be given access to certain confidential or secret information and material relating to or owned by the Company, including but not limited to the Company's proposed acquisitions, proposed FCC filings, financial information, customer lists, files and other information regarding individual customers, the Company's business or the Company's organization and operations, solely in order that Optionee may best perform Optionee's duties. Such information and material shall be the sole and exclusive property of the Company, and Optionee agrees that during the term of this Agreement and at all times thereafter Optionee will not disclose such confidential or secret information or material to any governmental agency, person, entity, firm or corporation without the explicit prior written consent of Company. Optionee agrees to return to Company promptly upon termination of the Agreement unless waived in writing by the Company all correspondence, letters, documents or other tangible things or copies thereof (whether stored in hard copy, in electromagnetic media, or in any other form) which mention or contain said confidential or secret information or material. All information and materials or product provided, generated or produced by Optionee under Optionee's employment to the Company shall be and remain the sole and exclusive property of Company and shall be held by Optionee as a trustee for the benefit of the Company. (d) Covenant Not to Compete. Optionee agrees that, during the term of Optionee's employment and for a period of one year immediately following the termination of such employment for any reason whatsoever (the "Restricted Period"), Optionee will not, either directly or indirectly, with or without compensation, individually or as an employee, broker, agent, consultant, contractor, advisor, solicitor, greater than 5% stockholder, trust beneficiary, proprietor, partner, or person interested in, affiliated with or rendering services to any other entity, engage in, provide or offer to provide, or assist anyone in providing, services to or for a business that is substantially the same as or similar to the Company's business or that competes with the Company's business, directly or indirectly, within the applicable commercial mobile radio services market or markets serviced by the Company and in which Optionee performs or performed services for the Company. Optionee shall not at any time during the Restricted Period directly or indirectly compete with the Company, its affiliates or its dealers, within such market or markets. (e) Notice. Any notice required by the terms of this Agreement or the Plan shall be given in writing and shall be deemed effective upon personal delivery or upon deposit with the United States Postal Service, by registered or certified mail with postage and fees prepaid and addressed to the party entitled to such notice at the address shown below such party's signature on this Agreement, or at such other address as such party may designate by ten (10) days' advance written notice to the other party to this Agreement. 3 (f) Compliance with Applicable Laws. Shares will not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares shall comply with all relevant provisions of law and the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance. As a condition to the grant or exercise of an Option, or to the issuance of any Shares under any Option, the Company may require the Optionee to provide such representations, covenants, warranties and agreements which, in the opinion of counsel for the Company, are required to comply with applicable law or satisfy the requirements of any stock exchange or quotation system upon which the Shares may then be listed or quoted. By your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Plan and this Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions relating to the Plan and Option Agreement. OPTIONEE: WESTERN WIRELESS CORPORATION - ------------------------------------ By: ----------------------------------- - ------------------------------------ Title: 3650 131st Avenue SE, Ste. 200 Bellevue, Washington 98006 - ------------------------------------ (address) Social Security No. ---------------- 4 CONSENT OF SPOUSE The undersigned spouse of Optionee has read and hereby approves the terms and conditions of the Plan and this Option Agreement. In consideration of the Company's granting his or her spouse the right to purchase Shares as set forth in the Plan and this Option Agreement, the undersigned hereby agrees to be irrevocably bound by the terms and conditions of the Plan and this Option Agreement and further agrees that any community property interest shall be similarly bound. The undersigned hereby appoints the undersigned's spouse as attorney-in-fact for the undersigned with respect to any amendment or exercise of rights under the Plan or this Option Agreement. Date: --------------------- ----------------------------------- Spouse of Optionee 5 SCHEDULE I Optionee's Name: Date of Grant of Option: Vesting Schedule: The Option vests in four (4) equal annual increments commencing , with the first vesting date being . Vesting shall also be subject to written agreement, if any, between the Company and Optionee expressly relating to acceleration of vesting of Options. Exercise Price per Share: $ Total Number of Shares that may be purchased pursuant to the Option: Option Term/Expiration Date: Exercise Period After Termination of Employment: Optionee shall have until six (6) months and one (1) day following the date of termination of the Optionee's Continuous Status as a Participant to exercise the Option unless such termination is the result of death or total and permanent Disability, in which event Optionee shall have the time specified in the Plan to exercise the Option following termination of Continuous Status as a Participant. Type of Option: Nonstatutory Stock Option 6 Change of Control/Conditional Exercise/ Assumability of Options: In the event of Termination of Optionee's employment with the Company following the occurrence of any Change of Control by the Company, Optionee's Option shall become fully vested and exercisable immediately prior to the consummation of the event constituting the Change of Control, with respect to the full number of shares underlying the Option (the "Optioned Stock"), purchasable under such Options. Change of Control means the occurrence of any of the following events (each, a "Change of Control"): (i) the acquisition, directly or indirectly, by any person, including a group as defined in Section 13(d)(3) of the Exchange Act (other than the Company, a Subsidiary of the Company, or a Company employee benefit plan, including any trustee of such plan acting as trustee), of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities entitled to vote generally in the election of directors, whether as a result of a tender offer or exchange offer, open-market purchases, privately negotiated purchases or other (exclusive of the acquisition of securities of the Company by John W. Stanton, Theresa E. Gillespie, or any of their respective affiliates), unless, following such acquisition, the Company maintains Operating Control or Incumbent Directors continue to occupy either a majority of the seats (other than vacant seats) on the Company's Board of Directors, or the same number of seats on the Company's Board of Directors occupied by the Incumbent Directors immediately prior to the acquisition; (ii) the consummation, after the approval by the Board, and, if applicable, the shareholders of the Company of a merger or consolidation of the Company with or into another corporation (other than with an affiliate(s) of the Company in which the Company or its affiliate is the surviving entity) or pursuant to which shares of Common Stock of the Company would be converted into cash, securities or other property (other than in connection with the merger or consolidation with an affiliate set forth in the preceding parenthetical), unless, following such merger or consolidation, the Company maintains Operating Control or Incumbent Directors continue to occupy a majority of the seats (other than vacant seats) on the surviving entity's Board of Directors; (iii) the consummation, after the approval by the Board, and, if applicable, the shareholders of the Company, of any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all the Company's assets; or (iv) the consummation, after the approval by the Board, and, if applicable, the shareholders of the Company, of the liquidation or dissolution of the Company. In the event of the proposed dissolution or liquidation of the Company, upon notice to Optionee, the Option will terminate immediately prior to the consummation of such proposed action, unless otherwise provided by the Committee. The Committee may, in the exercise of its sole discretion in such circumstances, declare that any Option shall terminate as of a date fixed by the Committee and give each Optionee the right to exercise an Option as to all or any part of the 7 Optioned Stock, including Shares as to which the Option would not otherwise be exercisable if such Change of Control were not to occur. In the event of a proposed sale, lease, exchange or other transfer of all or substantially all of the assets of the Company, the merger or consolidation of the Company with or into another corporation (other than with an affiliate(s) of the Company in which the Company is the surviving entity) or pursuant to which shares of Common Stock would be converted into cash, securities or other property or the tender offer or takeover bid for the Shares, (each, together with a Change of Control, a "Triggering Event"), other than a tender offer by the Company, the Option shall be assumed or an equivalent option shall be substituted on the same economic terms and conditions by such successor corporation. If such successor corporation does not agree to assume the Option or to substitute an equivalent option on the same economic terms and conditions, Optionee's Option shall become fully vested and exercisable immediately prior to the consummation of such Triggering Event, and the Committee shall, in lieu of such assumption or substitution, provide for the Optionee to have the right to exercise the Option as to all or any portion, in the Optionee's discretion, of the Optioned Stock, including shares as to which the Option would not otherwise be exercisable if such Triggering Event were not to occur. If the Committee makes an Option fully exercisable in lieu of assumption or substitution, the Committee shall notify the Optionee that the Option shall be fully exercisable until two (2) days prior to the proposed effective date of the Triggering Event (as such effective date may be delayed from time to time), subject to the following provisions of this Section. Options, if any, that would vest immediately prior to the consummation of the Triggering Event shall be deemed to be vested for purposes of this exercise. The exercise of an Option by Optionee under such circumstances shall be deemed to be a conditional exercise subject to the consummation of the respective Triggering Event. If the respective Triggering Event is not consummated, then such conditional exercise shall be deemed rescinded. As used in this Section, and unless the context requires a different meaning, the following terms have the meanings indicated: "Cause" means (i) Optionee's gross neglect or willful material breach of Optionee's principal employment responsibilities or duties, (ii) a final judicial adjudication that Optionee is guilty of a felony, (iii) fraudulent conduct as determined by a court of competent jurisdiction in the course of Optionee's employment with the Company or any of its subsidiaries, (iv) the unreasonable refusal by Optionee to perform the responsibilities or duties of Optionee's position in any material respect, or (v) the material breach by Optionee of any other provision of this Option Agreement which continues uncured for a period of thirty (30) days after notice thereof by the Company. "Good Reason" means, without the Optionee's express written consent: (a) (i) The assignment to Optionee of duties, or limitation of Optionee's responsibilities, inconsistent with Optionee's title, position, duties, responsibilities and status with the Company immediately prior to the Change of Control, or (ii) removal of Optionee from, or failure to re-elect Optionee to any of Optionee's positions with the Company or any subsidiary of the Company that employs Optionee immediately prior to the Change of Control, except in 8 connection with the involuntary termination of Optionee's employment by the Company for Cause or as a result of Optionee's death or Disability. (b) failure of the Company to pay, or reduction by the Company of, Optionee's annual base salary, as reflected in the Company's payroll records for Optionee's last pay period immediately prior to the Change of Control; (c) failure by the Company to pay, or reduction by the Company of, Optionee's bonus; (d) the relocation of the principal place of Optionee's employment to a location that is more than 50 miles further from Optionee's principal residence than such principal place of employment immediately prior to the Change of Control; or (e) the breach of any material provision of this Option Agreement by the Company which continues uncured for a period of thirty (30) days after notice thereof by the Optionee. "Incumbent Director" means a member of the Board who has been (a) a member of the Board immediately prior to the Change of Control, (b) appointed or otherwise nominated by a majority of the directors of the Company in office immediately prior to the Change of Control, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended) or other actual or threatened solicitation of proxies or consents by or on behalf of any individual, entity or group other than the Board. "Operating Control" means the chairman and chief executive officer of the Company immediately prior to the Change of Control remains as chairman and chief executive officer of the surviving entity after the Change of Control and maintains the same duties and responsibilities after the Change of Control. "Termination" means, during the one (1) year period following the occurrence of any Change of Control by the Company, (a) the involuntary termination of the employment of Optionee for any reason other than death, Disability or for Cause or (b) the termination of employment by Optionee for Good Reason. 9 EXHIBIT A WESTERN WIRELESS CORPORATION 2005 LONG-TERM EQUITY INCENTIVE PLAN EXERCISE NOTICE Western Wireless Corporation 3650 131st Avenue SE, Ste. 200 Bellevue, Washington 98006 Attention: Secretary 1. Exercise of Option. Effective as of today, _______________________, the undersigned ("Optionee") hereby elects to purchase ___________ shares (the "Shares") of the Class A Common Stock of Western Wireless Corporation (the "Company") under and pursuant to the 2005 Long-Term Equity Incentive Plan (the "Plan") and the Stock Option Agreement dated (the "Option Agreement"). The purchase price for the Shares shall be $ , as required by the Option Agreement. 2. Delivery of Payment. Optionee herewith delivers to the Company the full purchase price for the Shares. 3. Representations of Optionee. Optionee acknowledges that Optionee has received and read and understands the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions. 4. Rights as Shareholder. Subject to the terms and conditions of this Agreement, Optionee shall have all of the rights of a shareholder of the Company with respect to the Shares from and after the date that a stock certificate evidencing the Shares is issued by the Company (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) until such time as Optionee disposes of the Shares. 5. Tax Consultation. Optionee understands that Optionee may suffer adverse tax consequences as a result of Optionee's purchase or disposition of the Shares. Optionee represents that Optionee has consulted with any tax consultants Optionee deems advisable in connection with the purchase or disposition of the Shares and that Optionee is not relying on the Company for any tax advice. 6. Compliance with the Law. Optionee understands that no Option may be exercised, and the Company will not be obligated to issue any shares unless, in the opinion of counsel for the Company, such exercise and issuance is in compliance with all applicable federal and state laws and satisfies the requirements of any stock exchange or quotation system upon which the shares may be listed or quoted. As a condition to the issuance of Shares, the Committee may require the Optionee to agree to comply with such provisions of federal and state laws, or such requirements of any stock exchange or quotation system, as may be applicable to 10 the issuance and sale of the Shares to the Optionee, and the Optionee agrees to deliver such written agreements, representations, warranties and covenants as, in the opinion of counsel to the Company, are required for such compliance. 7. Withholding. Optionee acknowledges that the Company's obligation to deliver stock certificates upon the exercise of this Option is subject to Optionee's satisfaction of all applicable federal, state and local income and employment tax withholding requirements. Optionee represents that such requirements have been satisfied. 8. Entire Agreement; Governing Law. The Plan and Option Agreement are incorporated herein by reference. This Exercise Notice, the Plan and the Option Agreement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and such agreement is governed by Washington law. Submitted by: Accepted by: OPTIONEE: WESTERN WIRELESS CORPORATION - ------------------------------- By: ----------------------------------- Address: Title: - ------------------------------- -------------------------------- - ------------------------------- Address: 3650 131st Avenue SE, Ste. 200 Bellevue, Washington 98006 11 EX-99.4 7 v04311orexv99w4.txt EXHIBIT 99.4 Exhibit 99.4 RESTRICTED STOCK PURCHASE AGREEMENT PURSUANT TO WESTERN WIRELESS CORPORATION EXECUTIVE RESTRICTED STOCK PLAN FOR VALUABLE CONSIDERATION, Western Wireless Corporation (the "Company"), agrees to issue to the individual named below (the "Restricted Stock Holder") the number of shares of Class A Common Stock, no par value per share (the "Restricted Stock" or Special Performance Award), for the price per share set forth below, if any, all subject to the terms and conditions hereof and of the Company's Executive Restricted Stock Plan (the "Plan"): --------------------------------------------------------------------------- Restricted Stock Holder: --------------------------------------------------------------------------- Number of Shares of Restricted Stock: --------------------------------------------------------------------------- Price Per Share, if any: --------------------------------------------------------------------------- Date of This Agreement: --------------------------------------------------------------------------- Restrictions: --------------------------------------------------------------------------- Other Terms --------------------------------------------------------------------------- EXECUTED as of the date of this Agreement set forth above. WESTERN WIRELESS CORPORATION By --------------------------------- John W. Stanton Chairman and CEO RESTRICTED STOCK HOLDER By --------------------------------- --------------------------- Restricted Stock Holder RESTRICTED STOCK OFFER PURSUANT TO EXECUTIVE RESTRICTED STOCK PLAN WESTERN WIRELESS CORPORATION To: 1. ______________, Offeree, and 2. Secretary, Western Wireless Corporation This is to inform you that the Compensation Committee of the Board of Directors of Western Wireless Corporation (the "Company") pursuant to the Company's Executive Restricted Stock Plan (the "Plan") has on the date of this offer allocated/awarded to you _________ shares of the Company's Class A Common Stock, no par value, pursuant to the Plan. For these shares to be issued, you must deliver to the Chief Executive Officer of the Company the "Restricted Stock Purchase Agreement" in duplicate, in the enclosed form, within 15 days from the date hereof. Date: ____________________ ----------------------------------- John W. Stanton Chairman and CEO Western Wireless Corporation -----END PRIVACY-ENHANCED MESSAGE-----