EXHBIT 4.5
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 28th day of April, 1995 between
GLOBAL TELECOMMUNICATION SOLUTIONS, INC., a Delaware corporation ("Company"),
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Optionee").
WHEREAS, Optionee has rendered certain services to the Company;
WHEREAS, in consideration for such services, the Company has awarded
Optionee certain options ("Options") to purchase 5,000 of the authorized but
unissued or treasury shares of the common stock of the Company, $.01 par value
("Common Stock"); and
WHEREAS, Optionee desires to acquire the options on the terms and
conditions set forth in this Agreement:
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants Optionee the Option to
purchase all or any part of an aggregate of 5,000 shares of Common Stock (the
"Option Shares") on the terms and conditions set forth herein.
2. Nonincentive Stock Option. The Option represented hereby is a
nonqualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be $5.50 per
share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, at any time from and after the date hereof, and it
shall remain exer cisable, except as otherwise provided herein, until the close
of business on April 27, 2000 (the "Exercise Period").
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of Optionee for Federal income tax purposes
with respect to the Option, Optionee may be required to pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount. The obligations of the Company
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pursuant to this Agreement shall be conditional upon such payments or
arrangements with the Company, if such payments or arrangements are required,
and the Company shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to Optionee from the
Company.
6. Adjustments. In the event of any merger, reorganization, consolidation,
recapitalization, consolidation, recapitalization, dividend (other than cash
dividend), stock split, reverse stock split, or other similar change in
corporate structure affecting the kind or number of issued shares of Common
Stock as a class, the Company shall proportionally adjust the number and kind of
Option Shares and the exercise price of the Option in order to prevent the
dilution or enlargement of the Optionee's proportionate interest in the Company
and his rights hereunder, provided that the number of Option Shares shall always
be a whole number.
7. Method of Exercise.
7.1. Notice to the Company. The Option shall be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice.
7.2. Delivery of Option Shares. The Company shall deliver a certificate for
the Option Shares to Optionee as soon as practicable after payment therefor.
7.3. Payment of Purchase Price.
7.3.1. Cash Payment. Optionee shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof.
7.3.2. Cashless Payment. The Company, in its sole discretion, may allow
Optionee to use Common Stock of the Company owned by him (or to surrender a
portion of this Option) to pay the purchase price for the Option Shares (and any
required withholding taxes) by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the Company,
free of any liens or encumbrances. Shares of
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Common Stock used for this purpose shall be valued at the Fair Market Value, as
defined below. The value of any Option surrendered shall equal the difference
between the Exercise Price and the Fair Market Value on the date of surrender
multiplied by the number of Option Shares underlying the portion of the Option
surrendered.
7.3.3. Fair Market Value. "Fair Market Value," unless otherwise required by
any applicable provision of the Internal Revenue Code of 1986, as amended, or
any regulations issued thereunder, means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on the last trading
day preceding the date of grant of an award hereunder, as reported by the
exchange or Nasdaq, as the case may be; (ii) if the Common Stock is not listed
on a national securities exchange or quoted on the Nasdaq National Market or
Nasdaq SmallCap Market, but is traded in the over-the-counter market, the
closing bid price for the Common Stock on the last trading day preceding the
date of grant of an award hereunder for which such quotations are reported by
the OTC Bulletin Board or the National Quotation Bureau, Incorporated or similar
publisher of such quotations; and (iii) if the Fair Market Value of the Common
Stock cannot be determined pursuant to clause (i) or (ii) above, such price as
the Company shall determine, in good faith.
8. Nonassignability. The Option shall not be assignable or transferable,
without the consent of the Company, except by will or by the laws of descent and
distribution in the event of the death of Optionee. No transfer of the Option by
Optionee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and/or such other evidence as the Company
may deem necessary to establish the validity of the transfer and the acceptance
by the transferee or transferees of the terms and conditions of the Option.
9. Company Representations. The Company hereby represents and warrants to
Optionee that:
(i) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the
transactions contemplated hereunder; and
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(ii) the Option Shares, when issued and delivered by the Company to
Optionee in accordance with the terms and conditions hereof, will be
duly and validly issued and fully paid and non-assessable.
10. Optionee Representations. Optionee hereby represents and warrants to
the Company that
(i) he is acquiring the Option and shall acquire the Option Shares for his
own account and not with a view towards the distribution thereof;
(ii) he has received a copy of all reports and documents required to be
filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii)he understands that he must bear the economic risk of the invest ment
in the Option Shares, which cannot be sold by him unless they are
registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) he has had both the opportunity to ask questions and receive answers
from the officers and directors of the Company and all persons acting
on its behalf concerning the terms and conditions of the offer made
hereunder and to obtain any additional information to the extent the
Company possesses or may possess such infor mation or can acquire it
without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom
as provided herein; and
(vi) the certificates evidencing the Option Shares shall bear the following
legends:
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"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of April 28, 1995, a copy of which is on file with
the Company, and may not be transferred, pledged or
disposed of except in accordance with the terms and
conditions thereof."
(vii)he agrees that he shall not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by him except in accordance with
Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
11. Restriction on Transfer of Option Shares.
(a) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the 1933 Act, or
in the event that they are not so registered, unless (i) an exemption from the
1933 Act registration requirements is available thereunder, and (ii) Optionee
has furnished the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
(b) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that, if he is, or at any time hereinafter becomes, an employee or
director of the Company or any subsidiary thereof, he shall not sell, transfer
by any means or otherwise dispose of the Option Shares acquired by him except in
accordance with Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
12. Miscellaneous.
12.1. Notices. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier to the parties at their
respective addresses set forth herein, or to such other
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address as either shall have specified by notice in writing to the other. Notice
shall be deemed duly given hereunder when delivered or mailed as provided
herein.
12.2. Optionee and Stockholder Rights. Optionee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option. If Optionee is, or hereinafter
becomes, an employee or director of the Company or any subsidiary thereof,
nothing contained in this Agreement shall be deemed to confer upon Optionee any
right to continued employment with, or a continued directorship position with,
the Company or any subsidiary thereof, nor shall it interfere in any way with
the right of the Company to terminate Optionee in accordance with the provisions
regarding such termination set forth in Optionee's written employment agreement
with the Company, or if there exists no such agreement, to terminate Optionee at
will, and/or terminate Optionee's directorship in accordance with the Company's
Certificate of Incorporation and By-laws and/or the laws of the State of
Delaware, as the case may be.
12.3. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
12.4. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by Optionee and the Company.
12.5. Binding Effect; Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, to the extent not prohibited
herein, their respective heirs, successors, assigns and representatives. Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
12.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
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12.7. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
OPTIONEE:
Address:______________________________
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
--------------------
DATE
Global Telecommunication Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
_______ __, 199_ with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to the
order of "Global Telecommunication Solutions, Inc." in the sum of
$_________;
|_| confirmation of wire transfer in the amount of $_____________;
and/or
|_| with the consent of the Company, a certificate for _________
shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a Fair Market Value (as such
term is defined in Section 7.3.3 of the Stock Option Agreement)
of $_________.
|_| with the consent of the Company, by surrender of a portion of my
Option having a value of $_____________ as calculated in
accordance with Section 7.3.2 of the Stock Option Agreement.
I hereby represent and warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the Option Shares for my
own account, for investment, and not with a view towards the distribution
thereof;
(ii) I have received a copy of all reports and documents required to be
filed by the Company with the Commission pursuant to the Exchange Act within the
last 24 months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk of the investment in
the Option Shares, which cannot be sold by me unless they are registered under
the Securities Act of 1933 (the "1933 Act") or an exemption therefrom is
available thereunder and that the Company is under no obli gation to register
the Option Shares for sale under the 1933 Act;
(iv) I agree that I will not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by me hereby except in accordance with
Company's policy, if any, regarding the sale and disposition of securities owned
by employees and/or directors of the Company;
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(v) in my position with the Company, I have had both the opportunity to ask
questions and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of the
offer made hereunder and to obtain any additional information to the extent the
Company possesses or may possess such information or can acquire it without
unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to clause (ii) above;
(vi) I am aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the absence of
registration under the 1933 Act or an exemption therefrom as provided herein;
and
(vii) the certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate
have been acquired for investment and have
not been registered under the Securities Act
of 1933. The shares may not be sold or trans
ferred in the absence of such registration
or an exemption therefrom under said Act."
"The shares represented by this certificate
have been acquired pursuant to a Stock
Option Agreement, dated as of October 15,
1994 a copy of which is on file with the
Company, and may not be transferred, pledged
or disposed of except in accordance with the
terms and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
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(Signature) (Address)
------------------------------ ----------------------------------------
(Print Name)
----------------------------------------
(Social Security Number)
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