SANSWIRE CORP. OPTION AGREEMENT
EXHIBIT 10.2
THE
COMMON STOCK PURCHASE OPTION REPRESENTED BY THE AGREEMENT (THE “OPTION”) AND THE
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE OPTION (THE “OPTION
SHARES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), AND THEREFORE, MAY BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF ONLY IN ACCORDANCE WITH THE ACT, INCLUDING THE
REGISTRATION PROVISIONS THEREIN CONTAINED OR PROVIDED AN EXEMPTION FROM
REGISTRATION IS AVAILABLE UNDER THE ACT, AND SUBJECT TO THE OPINION OF COUNSEL
TO SANSWIRE CORP.
This
Option Agreement is made on this 8th day of February, 2011 (the “Effective
Date”) by and between SANSWIRE CORP., a Delaware corporation (the “Optionor” or
“Company”), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “Holder”).
RECITALS
Holder is
employed by the Company as Chief Financial Officer and Treasurer. In
conjunction with Holder’s employment, the Board of Directors of the Company (the
“Board”) has authorized granting to Holder options to purchase the number of
shares of common stock of the Company specified in paragraph (1) hereof, at the
prices and for the terms specified herein, pursuant to the terms and conditions
stated herein and in the 2004 Employee Stock Option Plan of GlobeTel
Communications Corp. (the “Stock Option Plan”).
AGREEMENT
1. Option. Optionor
hereby grants to Holder the option (the “Option”) to purchase from Optionor
1,500,000 shares of the common stock of the Optionor (the “Shares”), upon the
conditions and terms set forth herein and in the Stock Option
Plan. The parties
understand and agree that the Shares’ transferability is restricted in
accordance with state and federal laws. The Shares pursuant to
this Option shall vest as follows: 500,000 of the Shares shall vest
immediately on the Effective Date and during the period from the Effective Date
through the eighteen month anniversary of the Effective Date, the Option shall
become vested with respect to an additional 166,666 shares for each full three
month period that Holder continues to be employed by the Company (provided,
however, the final three month period of vesting shall be as to 166,670 shares
such that on the eighteen month anniversary of the Effective Date, the full
1,500,000 shares shall be vested) (once vested, the Shares shall be deemed
“Vested Shares”); provided, however, that the vesting on the Shares pursuant to
this Option shall accelerate in full, and such Shares shall be fully vested and
exercisable, upon a Change of Control of the Company. For purposes
hereof, a “Change of Control” shall mean the consummation of a reorganization,
merger, share exchange, consolidation, or sale or disposition of all or
substantially all of the assets of the Company unless, in any case, the persons
or entities who or which Beneficially Own the Voting Securities of the Company
immediately before that transaction Beneficially Own, directly or indirectly,
immediately after the transaction, at least 75% of the Voting Securities of the
Company or any other corporation or other entity resulting from or surviving the
transaction (including a corporation or other entity which, as the result of the
transaction, owns all or substantially all of the Voting Securities of the
Company or all or substantially all of the Company’s assets, either directly or
indirectly through one or more subsidiaries) in substantially the same
proportion as their respective ownership of the Voting Securities of the Company
immediately before that transaction (capitalized terms as defined in the
Securities Exchange Act of 1934, as amended).
2. Purchase
Price. The purchase price payable for the Shares (the
“Purchase Price”) shall be $0.07 per share.
3. Exercise
of Option. This
Option may be exercised as to the Vested Shares at any time by the Holder by
tendering a copy of this Option Agreement stating the name in which the Shares
shall be registered and amount of Shares to be exercised (the “Exercise
Notice”), together with the cash amount sufficient to exercise the Option, to
the Optionor, or by Cashless Exercise, if applicable, as defined
below. The Option may be exercised in whole or in part at any time
during the option period, which begins on the effective date of this Option
Agreement and terminates three (3) years thereafter.
4.
Cashless
Exercise. In
the event the Market Price of the Company common stock is above the exercise
price, and in lieu of the payment method set forth in Section 3, above, the
Holder may elect to exchange all or some of the Shares for the common stock
equal to the value of the amount of the Shares being exchanged on the date of
exchange (the “Cashless Exercise”). If the Holder elects to take
advantage of such Cashless Exercise, the Holder shall tender to the Company this
Option Agreement for the amount being exchanged, along with written notice of
the Holder’s election to exchange some or all of the Shares, and the Company
shall issue to the Holder the number of common stock computed using the
following formula:
X =
Y
(A-B)
A
Where: X
= The number of
shares of common stock to be issued to the Holder.
Y
= The number of
shares of common stock purchasable under the amount of this Option Agreement
being exchanged (as adjusted to the date of such calculation).
A
= The Market
Price (as defined hereinabove) of one share of common stock.
B
= The Purchase
Price (as adjusted to the date of such calculation).
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The
Cashless Exercise shall take place on the date specified in the notice or if the
date the notice is received by the Company is later than the date specified in
the notice, on the date the notice is received by the Company.
As soon
as practicable after full or partial exercise of the Shares, the Company at its
expense (including, without limitation, the payment by it of all taxes and
governmental charges applicable to such exercise and issuance of the Shares)
shall cause to be issued in the name of and delivered to the Holder or such
other persons as directed by the Holder, a certificate or certificates for the
total number of Shares being exercised in such denominations as instructed by
the Holder, together with any other securities and property to which the Holder
is entitled upon exercise under the terms of this Option Agreement. The Option
shall be deemed to have been exercised, and the Shares acquired thereby shall be
deemed issued, and the Holder or any person(s) designated by the Holder shall be
deemed to have become holders of record of such Shares for all purposes, as of
the close of business on the date that the Option, the duly executed and
completed Exercise Notice, and full payment of the aggregate Purchase Price has
been presented and surrendered to the Company, notwithstanding that the stock
transfer books of the Company may then be closed. In the event this Option is
only partially exercised, a new Option Agreement evidencing the right to acquire
the number of Shares with respect to which this Option Agreement shall not then
have been exercised, shall be executed, issued and delivered by the Company to
the Holder simultaneously with the delivery of the certificates representing the
Shares so purchased.
5. Shares Not
Registered
The
certificates representing the option Shares issued upon exercise of the options
Shall
bear the following legend:
“THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR THE LAWS OF ANY
OTHER JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN ANY MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND
IN COMPLIANCE WITH THE LAWS OF ANY APPLICABLE JURISDICTION OR (2) AN OPINION OF
COUNSEL (IN FORM AND SUBSTANCE ACCEPTABLE TO THE COMPANY) THAT REGISTRATION IS
NOT REQUIRED.”
6. Representation, Warranties
and Covenants of the Holder. The Holder represents, warrants
to and covenants with Optionor as follows:
a) The
Holder warrants he has evaluated the merits and risks associated with the
investment in the company as represented by this option, including review of the
Annual and Quarterly Reports and other reports of the Company that have been
filed from time to time with the Securities and Exchange Commission (“SEC”), and
all other documentation that he deems necessary under the Securities and
Exchange Act of 1934, as amended, and the applicable state securities
laws.
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b) The
Holder further represents that he understands that neither this Option nor the
Shares underlying the option are registered under the Act. Should the Company
prepare a registration statement to cause the registration of the Shares, for
filing with the SEC then such registration statement, when and if declared
effective by the SEC, shall be kept current in order for the Holder to be able
to publicly sell the Shares acquired upon exercise of the Option.
c) The
Holder is sufficiently experienced in financial matters and matters pertaining
to securities to be capable of evaluating the merits and risks associated with
the acceptance of this Option, and has relied upon such experience in so
determining to accept this option in partial consideration for the services
performed by Holder to the Company. The parties agree that this Option is not
the exclusive consideration granted or to be granted to Holder for services
heretofore provided or to be provided by Holder to the Company.
7. Representation, Warranties
and Covenants of the Optionor. The Optionor represents,
warrants to and covenants with Holder as follows:
a) This
Agreement has been duly executed and delivered by such Optionor and constitutes
the valid and binding obligation of such Optionor and such Optionor has the
requisite power and capacity to execute, deliver and perform this Agreement and
to comply with the terms hereof.
b) The
grant of the Option by such Optionor does not, and the sale of the Option Shares
to Holder by such Optionor, upon payment of the Exercise Price thereof, will
not, conflict with or constitute an event of default under or breach of any
agreement, document or instrument to which such Optionor is a
party.
c) The
Option Shares underlying the Option granted by such Optionor hereunder are
currently owned by such Optionor and, upon exercise of the Options by Holder and
payment of the Exercise Price therefore, Holder will acquire such Option Shares
free and clear of all security interests, claims, liens, security or other
interests, encumbrances and charges of any kind whatsoever.
d) Until
the earlier of (i) the exercise of the Option granted by such Optionor or (ii)
the expiration of the Option Period, such Optionor will not sell, transfer,
assign, pledge, alienate or hypothecate any of the Option Shares, or permit such
Option Shares to become subject to any mortgage pledge, lien, security or other
interest, encumbrance or charge of any kind.
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8. Notices. All
notices, requests, demands and other communications which are given pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand, when sent by facsimile (with receipt confirmed), or when
mailed by registered or certified mail (postage prepaid, return receipt
requested), as follows (or to such other address or telex number as either party
hereto may designate to the other party hereto by like notice):
If to the Holder, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Optionor, to:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇▇, ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Mail Address:
Mail
Code: SWC
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇,
President
and Chief Executive Officer
9. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Optionor and Holder inure to the benefit of their respective successors and
assigns hereunder.
10. Entire
Agreement. This Agreement constitutes the complete agreement
between the parties and terminates and supersedes all prior and contemporaneous
oral and written agreements. This Agreement may not be altered, amended or
modified except by a writing duly executed by the parties hereto.
11. Severability. In
the event that any term or condition in this Agreement shall for any reason be
held by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other term or condition of this Agreement, but this
Agreement shall be construed as if such invalid or illegal or unenforceable term
or condition had never been contained herein.
12. Non-Waiver. No
waiver, forbearance or failure by any party of its right to enforce any
provision of this Agreement shall constitute a waiver or estoppel of such
party’s right to enforce such provision in the future or such party’s right to
enforce any other provision of this Agreement.
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13. Binding Effect; No Third
Party Beneficiaries. Each term and provision of this Agreement
shall be binding upon and enforceable against and inure to the benefit of the
parties hereto and their respective successors or assigns, nothing in this
Agreement, express or implied, being intended to confer upon any other person
any rights or remedies hereunder.
14. Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same
instrument.
[Remainder
of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed as of the day and year first
above written.
HOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Date: February
8, 2011
OPTIONOR:
A
DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
President
and Chief Executive Officer
Date:
February 8, 2011
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