INFONET SERVICES CORPORATION NON-QUALIFIED STOCK OPTION AWARD AGREEMENT [OFFICER, DIRECTOR AND SENIOR EMPLOYEE]
Exhibit 10.29 (b)
INFONET SERVICES CORPORATION
2003 INCENTIVE AWARD PLAN
NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
[OFFICER, DIRECTOR AND SENIOR EMPLOYEE]
This Non-Qualified Stock Option Award Agreement (this “Agreement”), dated the effective date set forth in the Certificate of Stock Option Grant available from the Citigroup Stock Plan Services website (the “Certificate”), is made between INFONET SERVICES CORPORATION (together with any Subsidiaries, the “Company”) and the individual named in the Certificate (the “Optionee”). The Certificate is included in, and made a part of, this Agreement. All capitalized terms used herein that are not defined herein shall have the respective meanings given to such terms in the Infonet Services Corporation 2003 Incentive Award Plan (the “Plan”).
W I T N E S S E T H :
1. Grant of Option. Pursuant to the provisions of the Plan, the Company hereby grants to the Optionee, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, the right and option to purchase from the Company all or any part of an aggregate of the number of Class B, $.01 par value, shares of the Company (the “Stock”) set forth in the Certificate, at a per share purchase price set forth in the Certificate (the “Option”), such Option to be exercisable as hereinafter provided. The Option is a Non-Qualified Stock Option and shall not be treated as an Incentive Stock Option.
2. Terms and Conditions. It is understood and agreed that the Option evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The Option shall expire on the date set forth in the Certificate.
(b) Exercise of Option.
(i) Subject to the other terms of this Agreement, the Plan or a separate written employment agreement between the Company and the Optionee, the Option may be exercised on or after the dates set forth in the Certificate as to the number of shares of Stock set forth in the Certificate, plus any shares of Stock as to which the Option could have been exercised previously, but was not so exercised.
(ii) Notwithstanding the foregoing provisions of this Section 2(b) upon the occurrence of a Change in Control, the Option shall immediately become exercisable as to the full number of shares covered by the Option.
(iii) Notwithstanding the foregoing provisions of this Section 2(b) upon the Termination of Employment or Directorship, as applicable, by reason of Retirement (as defined below) of the Optionee as a member of the Company’s Board (a “Director”) or as an Employee of the Company, the Option shall immediately become exercisable as to the full number of shares covered by the Option, and may be exercised after such termination until the stated expiration date of the Option.
(iv) Any exercise of all or any part of the Option shall be accompanied by a Cash Letter of Authorization (available from the Citigroup Stock Plan Services website) which is a written notice to the Company specifying the number of shares of Stock as to which the Option is being exercised. Upon the valid exercise of all or any part of the Option, the number of shares of Stock with respect to which the Option is exercised shall be issued in the name of the Optionee, subject to the other terms and conditions of this Agreement and the Plan. Notation of any partial exercise shall be made by the Company in its records.
(c) Consideration. At the time of any exercise of the Option, the purchase price of the shares of Stock as to which the Option shall be exercised shall be paid to the Company (i) in United States dollars by personal check, bank draft or money order; (ii) if permitted by applicable law and approved by the Committee, with Stock, duly endorsed for transfer to the Company, already owned by the Optionee (or by the Optionee and his spouse jointly) for at least six (6) months prior to the tender thereof and not used for another such exercise during such six (6) month period, having a total Fair Market Value on the date of such exercise of the Option, equal to such purchase price of such shares of Stock; (iii) if permitted by applicable law, in accordance with a cashless exercise or broker-assisted exercise procedure approved by the Committee permitting the Optionee to authorize a broker or dealer to sell shares of Stock (or a sufficient portion of such shares) that may be acquired upon exercise of the Option and pay to the Company in cash a portion of the sale proceeds equal to such purchase price of the shares of Stock for which the Option is so exercised and any taxes required to be paid as a result of such exercise; or (iv) in a combination of the consideration provided for in the foregoing clauses (i) through (iii).
(d) Exercise Upon Death, Disability or Termination of Employment or Directorship. Subject to the terms of any separate written employment agreement between the Optionee and the Company, the Option shall terminate upon the Termination of Employment or Directorship, as applicable, for any reason, of the Optionee, and no shares of Stock may thereafter be purchased under the Option, except as follows:
(i) In the event of the death of the Optionee while a Director or Employee of the Company, the Option, to the extent exercisable in accordance with Section 2(b) hereof at the time of his death, may be exercised after the Optionee’s death by his designated beneficiary, his heir, the legal representative of the Optionee’s estate or the legatee of the Optionee under his last will until the stated expiration date of the Option.
(ii) If the Optionee’s directorship or employment with the Company shall terminate by reason of Disability, the Option, to the extent exercisable in accordance with Section 2(b) hereof upon such Termination of Employment or Directorship, as applicable, may be exercised after such termination until the stated expiration date of the Option. For purposes of this Agreement, “Disability” shall mean a “permanent and total disability” as set forth in Section 22(e)(3) of the Code.
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(iii) If the Optionee’s directorship or employment with the Company shall terminate by reason of his Retirement (as defined below), the Option may be exercised after such Termination of Employment or Directorship, as applicable, with respect to the full number of shares covered by the Option until the stated expiration date of the Option.
(iv) In the event the Optionee ceases to be a Director or an Employee of the Company and the Optionee’s Termination of Employment or Directorship, as applicable, is neither by reason of Disability nor Retirement (as defined below), nor for Cause (as defined below or if different, as defined in the written employment agreement between Optionee and the Company) the Option, to the extent exercisable in accordance with Section 2(b) hereof upon such termination, may be exercised after such termination until the earlier to occur of the expiration of three (3) months following such termination and the stated expiration date of the Option.
(v) If the Optionee dies during the periods following Termination of Employment or Directorship specified in paragraphs (ii), (iii) or (iv) of this Section 2(d), the Option, to the extent the Option would have been exercisable pursuant to such applicable paragraph (ii), (iii) or (iv) as of the date of the Optionee’s death, may be exercised after the Optionee’s death by his designated beneficiary, his heir, the legal representative of his estate or the legatee of the Optionee under his last will until the stated expiration date of the Option.
(vi) In the event the Optionee ceases to be a Director or an Employee of the Company due to Termination of Employment or Directorship for Cause (as defined below or if different, as defined in the written employment agreement between Optionee and the Company) or termination under any circumstances not otherwise described in paragraph (i), (ii), (iii) or (iv) of this Section 2(d), the Option shall automatically, without any further action required by the Company, terminate on the date of such termination and shall cease to thereafter be exercisable with respect to any shares of Stock.
(vii) For purposes of this Agreement, “Retirement” shall mean an Optionee’s Termination of Employment or Directorship, as applicable, on or after his or her attainment of age 55 and the performance of ten (10) years of credited service to the Company. Notwithstanding the foregoing, with respect to an Optionee who is a Director, “Retirement” shall mean such Optionee’s Termination of Directorship for any reason. For purposes of this Agreement (except as otherwise provided herein), “Cause” shall mean any commission of acts of dishonesty, disloyalty or acts substantially detrimental to the welfare of the Company or any Subsidiary, as determined by the Administrator.
(e) Nontransferability. The Option shall not be transferable, except to a Permitted Transferee, otherwise than by will or the laws of descent and distribution, and is exercisable, during the lifetime of the Optionee, only by the Optionee and the Optionee’s Permitted Transferees; provided that the Option may be exercised after the Optionee’s death by the beneficiary most recently named by the Optionee in a written designation thereof filed by the Optionee with the Company, in accordance with the Plan.
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(f) Withholding Taxes. At the time of receipt of Stock upon the exercise of all or any part of the Option, the Optionee shall be required to pay to the Company in cash (or make other arrangements, in accordance with the Plan, for the satisfaction of) any taxes of any kind required by law to be withheld with respect to such Stock; provided, however, such tax withholding obligations may be met, in whole or in part, pursuant to procedures, if any, approved by the Committee in its discretion and in accordance with applicable law, by (i) the withholding by the Company of Stock otherwise deliverable to the Optionee pursuant to the Option with a Fair Market Value on the date of such exercise equal to such tax liability (provided, however, that the amount of any Stock so withheld shall not exceed the amount necessary to satisfy the Company’s required tax withholding obligations using the minimum statutory withholding rates for Federal, state, local and foreign tax purposes, including payroll taxes, that are applicable to supplemental taxable income) and/or (ii) tendering to the Company Stock, duly endorsed for transfer to the Company, owned by the Optionee (or by the Optionee and his spouse jointly) and acquired more than six (6) months prior to such tender with a Fair Market Value on the date of such exercise equal to such tax liability. In no event shall Stock be delivered to the Optionee until the Optionee has paid to the Company in cash, or made arrangements satisfactory to the Company regarding the payment of, the amount of any taxes of any kind required by law to be withheld with respect to the Stock subject to the Option, and the Company shall have the right to deduct any such taxes from any payment of any kind otherwise due to the Optionee.
(g) No Rights as Stockholder. The Optionee shall not become the beneficial owner of the shares of Stock subject to the Option, nor have any rights to dividends or other rights as a shareholder with respect to any such shares, until the Optionee has exercised the Option in accordance with the provisions hereof and of the Plan.
(h) No Right to Continued Employment or Directorship. The Option shall not confer upon the Optionee any right to be retained in the service of the Company, nor restrict in any way the right of the Company, which right is hereby expressly reserved, to terminate his directorship or employment at any time with or without cause, except as otherwise provided in any separate employment contract governed by the laws of any jurisdiction other than the United States or any State thereof between the Company and the Optionee.
(i) Inconsistency with Plan. Notwithstanding any provision herein to the contrary, the Option provides the Optionee with no greater rights or claims than are specifically provided for under the Plan. If and to the extent that any provision contained in this Agreement is inconsistent with the Plan, the Plan shall govern.
(j) Compliance with Laws and Regulations. The Option and the obligation of the Company to sell and deliver shares of Stock hereunder shall be subject in all respects to (i) all applicable Federal and state laws, rules and regulations and (ii) any registration, qualification, approvals or other requirements imposed by any government or regulatory agency or body which the Board shall, in its sole discretion, determine to be necessary or applicable. Moreover, the Option may not be exercised if its exercise, or the receipt of shares of Stock pursuant thereto, would be contrary to applicable law.
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3. Investment Representation. If at the time of exercise of all or part of the Option the Stock is not registered under the Securities Act and/or there is no current prospectus in effect under the Securities Act with respect to the Stock, the Optionee shall execute, prior to the issuance of any shares of Stock to the Optionee by the Company, an agreement (in such form as the Committee may specify) in which the Optionee, among other things, represents, warrants and agrees that the Optionee is purchasing or acquiring the shares acquired under this Agreement for the Optionee’s own account, for investment only and not with a view to the resale or distribution thereof, that the Optionee has knowledge and experience in financial and business matters, that the Optionee is capable of evaluating the merits and risks of owning any shares of Stock purchased or acquired under this Agreement, that the Optionee is a person who is able to bear the economic risk of such ownership and that any subsequent offer for sale or distribution of any of such shares shall be made only pursuant to (i) a registration statement on an appropriate form under the Securities Act, which registration statement has become effective and is current with regard to the shares being offered or sold, or (ii) a specific exemption from the registration requirements of the Securities Act, it being understood that to the extent any such exemption is claimed, the Optionee shall, prior to any offer for sale or sale of such shares, obtain a prior favorable written opinion, in form and substance satisfactory to the Committee, from counsel for or approved by the Committee, as to the applicability of such exemption thereto.
4. Optionee Bound by Plan. The Optionee hereby acknowledges receipt of a copy of the Plan, which is hereby incorporated by reference, and agrees to be bound by all of the terms and provisions thereof, including the terms and provisions adopted after the granting of the Option but prior to the complete exercise hereof, subject to Section 11.2 of the Plan as in effect on the date hereof.
5. Notices. Any notice hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or when deposited in the United States mail, registered or certified, postage prepaid, or with a reputable overnight courier, postage prepaid, or, if to the Company, sent by telecopier (with receipt confirmed), and addressed, in the case of the Company, to the Company’s Secretary at Infonet Services Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, and, in the case of the Optionee, to the Optionee’s address as shown in the records of the Company, subject to the right of either party to designate some other address at any time hereafter in a notice satisfying the requirements of this Section.
6. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California applicable to contracts executed and to be performed entirely within such state, without regard to the conflict of law provisions thereof.
7. Modification. Except as otherwise permitted by the Plan, this Agreement may not be modified or amended, nor may any provision hereof be waived, in any way except in writing signed by the party against whom enforcement thereof is sought.
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