EXHIBIT 10.2
NON-QUALIFIED STOCK OPTION AGREEMENT
This Option Agreement (the " Agreement" ) is made as of the day of , between Qwest Communications International Inc., a
Delaware Corporation, and (the " Optionee" ).
WHEREAS, pursuant to the Qwest Communications International Inc. Equity Incentive Plan (the " Plan" ), the Company desires to afford the Optionee the opportunity to purchase shares of Company Common Stock, par value $.01 per share (the " Common Shares" ).
NOW, THEREFORE, in connection with the mutual covenants hereinafter set forth and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS: CONFLICTS.
Capitalized terms used and not otherwise defined herein shall have the meanings given thereto in the Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms and provisions of the Plan and the terms and provisions of this Agreement, the terms and provisions of the Plan shall govern and control. In the event of a conflict or inconsistency between the terms and conditions of this Agreement and any agreement between Optionee and U S WEST, Inc. and/or its subsidiaries, the terms and conditions of this Agreement shall govern and control. In the event of a conflict or inconsistency between the terms and conditions of this Agreement and any employment agreement between Company and Optionee (other than an agreement between the Optionee and U S WEST, Inc. and/or its subsidiaries), such employment agreement shall govern.
2. GRANT OF OPTIONS.
The Company hereby grants to the Optionee the right and option (the " Option" or " Options" ) to purchase up to, but not exceeding in the aggregate, Common Shares, on the terms and conditions herein set forth. 3. PURCHASE PRICE.
The purchase price of each Common Share covered by the Option shall be (the " Purchase Price" ).
4. TERM OF OPTIONS.
The term of the Option shall be ten (10) years from the date hereof, subject to earlier termination as provided in Sections 6 and 8 hereof.
5. VESTING OF OPTIONS.
The Option, subject to the terms, conditions and limitations contained herein, shall vest and become exercisable with respect to the Common Shares in installments of % one year from the date hereof and in additional installments of % on each subsequent anniversary thereafter; provided that with respect to each such installment, the Optionee has remained in continuous employment with the Company from the date hereof through the date such installment is designated to vest.
Notwithstanding the vesting schedule set forth above, the Options will vest and become immediately exercisable in the event of the Optionee' s death or Disability and under the circumstances described in Section 7 below. 6. TERMINATION OF EMPLOYMENT.
(a) Termination of Employment for Reasons other than Death, Disability, Retirement or Cause. In the event the Optionee' s employment with the Company terminates for reasons other than Optionee' s death, Disability, Retirement or Cause, the Option shall remain exercisable for a period of up to 90 calendar days after the date of Optionee' s termination of employment (but not beyond the term of the Option), to the extent vested and exercisable on the date of Optionee' s termination of employment.
(b) Termination of Employment Because Optionee Dies, Becomes Disabled or Retires. In the event Optionee' s employment with the Company terminates because Optionee dies, becomes Disabled (as defined in the Plan) or Retires, the Option shall remain exercisable for two years after Optionee' s termination of employment (but not beyond the term of the Option), to the extent vested and exercisable at the time Optionee' s employment terminated. For purposes of this Agreement, the terms " Retire" and " Retirement" shall mean that, at the time of Optionee' s termination of employment, Optionee meets one of the following age and service combinations:
Age at Retirement
Term of Employment
(as defined in the
Qwest Pension Plan)
Combination 1 Any Age at least 30 years
Combination 2 50-54 at least 25 years
Combination 3 55-59 at least 20 years
Combination 4 60-64 at least 15 years
Combination 5 65 and older at least 10 years
(c) Termination of Employment for Cause. In the event Optionee' s employment with the Company is terminated by the Company for Cause, the Option shall be forfeited as of the date of such termination, whether or not otherwise vested or exercisable on such date. For purposes of this Agreement, " cause" shall mean:
(1) Commission of an act deemed by the Company in its sole discretion to be an act of dishonesty, fraud, misrepresentation or other act of moral turpitude that would reflect negatively upon Qwest or compromise the effective performance of Optionee' s duties;
(2) Unlawful conduct that would reflect negatively upon Qwest or compromise the effective performance of Optionee' s duties, as determined by the Company in its sole discretion;
(3) Conviction of (or pleading nolo contendere to) any felony or a misdemeanor involving moral turpitude;
(4) Continued failure to substantially perform Optionee' s duties to the satisfaction of his or her supervisor (other than such failure resulting from Optionee' s incapacity due to physical or mental illness) after the delivery of written notice to Optionee specifically identifying the manner in which Optionee has failed to substantially perform his or her duties and Optionee has been afforded a reasonable opportunity to substantially perform his or her duties; or
(5) A willful violation of the Qwest Code of Conduct or other Qwest policies that would reflect negatively upon Qwest or compromise the effective performance of Optionee' s duties, as determined by the Company in its sole discretion.
(d) Unvested Options Forfeited Upon Termination of Employment. Any portion of the Option that has not vested as of the date Optionee' s employment terminates shall be forfeited immediately upon termination of Optionee' s employment with the Company.
7. CHANGE OF CONTROL.
Subject to the conflict provisions in Paragraph 1 of this Agreement, in the event there is a both a Change in Control, and a subsequent termination of Optionee' s employment by the Company for a reason other than Cause
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in a two-year period after the date of such Change of Control, the Option shall vest in full and become immediately exercisable on the date of such termination, and shall remain vested and exercisable during the remaining term thereof.
8. FORFEITURE OF OPTION.
(a) Performance for Competitors. Notwithstanding any other provision of this Agreement, Optionee shall immediately forfeit all rights under the Option, if, Optionee accepts employment with a Competitor (as defined herein) or during the [12][18] month period beginning on the date of Optionee' s termination of employment, Optionee owns more than 2% of the common stock of, or is employed by, advises, represents or assists in any other way any Competitor and if the Company, in its sole discretion, determines that such actions by Optionee are, or could be, detrimental to the Company. For the purposes of this Agreement, " Competitor" means a person or entity that competes with, or intends to compete with, the Company with respect to any product sold or service performed by the Company in any state or country in which the Company sells such products or performs such services. Notwithstanding the foregoing, if Optionee is an attorney, Optionee may, subject to the applicable rules of ethics and the nondisclosure provisions herein, perform services solely in his or her capacity as an outside attorney on behalf of any person or entity, even if such person or entity competes with Qwest or sells goods or services similar to those Qwest sells.
(b) Non-solicitation of Employees. Notwithstanding any other provision of this Agreement, Optionee shall immediately forfeit all rights under the Option, if, during the one-year period beginning on the date of Optionee' s termination or employment, Optionee induces any employee of Qwest to leave Qwest' s employment, and if the Company, in its sole discretion, determines that such actions by Optionee are detrimental to the Company.
(c)
Nondisclosure. Optionee will not disclose outside of the Company or to any person within the Company who does not have a legitimate business need to know, any Confidential Information (as defined below) during Optionee' s employment with the Company. Optionee will not disclose to anyone or make any use of any Confidential Information of the Company after Optionee' s employment with the Company ends for any reason, except as required by law after timely notice is given by Optionee to the Company. This agreement not to disclose or use Confidential Information means, among other things, that Optionee, for a period of [12][18] months beginning on the effective date of the termination of Optionee' s employment with the Company or any other Qwest entity for any reason, may not take or perform a job whose responsibilities would likely lead Optionee to disclose or use Confidential Information. Optionee acknowledges and agrees that the assumption and performance of such responsibilities, in that situation, would likely result in the disclosure or use of Confidential Information and would likely result in irreparable injury to the Company. Moreover, during Optionee' s employment with the Company, Optionee shall not disclose or use for the benefit of the Company, himself or any other person or entity any confidential or trade secret information belonging to any former employer or other person or entity to which Optionee owes a duty of confidence or nondisclosure of such information. If a court determines that this provision is too broad, Optionee and Company agree that the court shall modify the provision to the extent (but not more than is) necessary to make the provision enforceable. " Confidential Information" means any oral or written information not generally known outside of the Company, including without limitation, trade secrets, intellectual property, software and documentation, customer information (including, without limitation, customer lists), company policies, practices and codes of conduct, internal analyses, analyses of competitive products, strategies, merger and acquisition plans, marketing plans, corporate financial information, information related to negotiations with third parties, information protected by the Company' s privileges (such as the attorney-client privilege), internal audit reports, contracts and sales proposals, training materials, employment and personnel records, performance evaluations, and other sensitive information. This agreement does not relieve Optionee of any obligations Optionee has to the Company under law. If Optionee fails to comply with the provisions of this paragraph 8(c), Optionee shall
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immediately forfeit all rights under the Option if the Company, in its sole discretion, determines that such actions by Optionee are, or were, detrimental to the Company. Nothing in this paragraph shall prevent or limit Optionee' s ability to provide truthful responses to legitimate inquiries from governmental agencies.
(d) Post-termination finding of Cause. Notwithsta ...