STOCK OPTION AGREEMENT
AGREEMENT, made as of November 10, 1997, by and between GLOBAL
TELECOMMUNICATION SOLUTIONS, INC., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Employee").
WHEREAS, the Employee and the Company recently entered into an
agreement to amend Employee's employment agreement; and
WHEREAS, the Board of Directors has authorized the grant to
the employee of an option (the "Option") to purchase an aggregate of 100,000 of
the authorized but unissued or treasury shares of the common stock of the
Company, $.01 par value ("Common Stock"), on the terms and conditions set forth
in this Agreement; and
WHEREAS, the Employee desires to acquire the Option on the
terms and conditions set forth in this Agreement.
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to the Employee the right
and option ("Option") to purchase all or any part of an aggregate of 100,000
shares of the Common Stock on the terms and conditions set forth herein. Said
Option is a non-qualified stock option not intended to qualify under Section 422
of the Internal Revenue Code of 1986, as amended and is not granted under any
plan, including the Company's 1994 Performance Equity Plan ("Plan"), certain
terms used herein, however, are defined under the Plan.
2. Exercise Price. The exercise price ("Exercise Price") of the Option shall be
$6.4375 per share, subject to adjustment as hereinafter provided.
3. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, as follows: (i) Options to purchase 50% of the
Option Shares shall be exercisable January 1, 1998; and (ii) Options to purchase
the remaining 50% of the Option Shares shall be exercisable on and after January
1, 1999. After each portion of the Options vests, it shall remain exercisable
for a period of five years from the date of vesting ("Exercise Period") except
as otherwise set forth in this Agreement. Notwithstanding the foregoing, if (i)
the Company, as a going concern, is sold or otherwise acquired, or (ii) any
party or group of parties not currently owning more than 5% of the outstanding
voting securities of the Company acquires in one or more transactions beneficial
ownership of more than 35% of such securities (the events in (i) and (ii) being
referred to herein as a "Change in Control"), then, notwithstanding the
1
foregoing vesting provisions and in addition to that percentage of Options
vested at the time of the Change in Control, all of the remaining Options shall
immediately and entirely vest.
4. Effect of Termination of Employment.
4.1. Termination Due to Death. If Employee's employment by the Company
terminates by reason of death, the Option shall become fully vested and
exercisable and may thereafter be exercised by the legal representative of the
estate or by the legatee of the Employee under the will of the Employee, for a
period of one year from the date of such death or until the expiration of the
Exercise Period, whichever period is shorter.
4.2. Termination Due to Disability. If Employee's employment by the Company
terminates by reason of Disability, the Option shall become fully vested and
exercisable and may thereafter be exercised by the Employee for a period of one
year from the date of such termination or until the expiration of the Exercise
Period, whichever period is shorter.
4.3. Termination by the Company Without Cause and/or Due to Retirement. If
Employee's employment is terminated by the Company without cause or due to
Normal Retirement, then the portion of the Option which has vested by the date
of termination of employment may be exercised for a period of three months from
termination of employment or until the expiration of the Exercise Period,
whichever is shorter. The portion of the Option not yet exercisable on the date
of termination of employment shall immediately expire.
4.4. Other Termination.
(a) If Employee's employment is terminated for any reason other than (i)
death, (ii) Disability, (iii) Normal Retirement, or (iv) without cause by the
Company, the Option shall expire on the date of termination of employment.
(b) The Committee, in the event the Employee's employment is termi nated
for cause, may require the Employee to return to the Company the economic
benefit of any Option Shares purchased hereunder by the Employee within the six
month period prior to the date of termination. In such event, the Employee
hereby agrees to remit to the Company, in cash, an amount equal to the
difference between the Fair Market Value of the Option Shares on the date of
termination (or the sales price of such Shares if the Option Shares were sold
during such six month period) and the Exercise Price of such Shares.
5. Withholding Tax. Not later than the date as of which an amount first must be
included in the gross income of the Employee for Federal income tax purposes
2
with respect to the Option, the Employee shall pay to the Company, or make
arrangements satisfactory to the Committee 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 ("Withholding Tax"). The obligations of the
Company under the Plan and pursuant to this Agreement shall be conditioned upon
such payment or arrangements with the Company and the Company shall, to the
extent permitted by law, have the right to deduct any Withholding Taxes from any
payment of any kind otherwise due to the Employee from the Company.
6. Adjustments. If and to the extent that the number of issued shares of Common
Stock shall be increased or reduced by reclassification, split-up, stock
dividend, combination of shares, or any similar change in the Common Stock of
the Company as a whole, the Company shall proportionally adjust the number and
kind of Option Shares and the exercise price of the Option, to such extent and
in such manner as shall as closely as possible maintain Optionee's proportionate
interest in the Company and his rights hereunder. If (i) the Company shall not
be the surviving corporation in any merger, combination, consolidation or
similar type of corporate transaction, or (ii) if the Company is the survivor,
but the outstanding shares of Common Stock are exchanged for securities of
another company, or property, then the Board of Directors will make appropriate
provision so that this Option will be exercisable for the full period as
provided in this Agreement for securities or other property of the surviving or
other entity as if this Option had been exercised for Common Stock immediately
before such merger, combination, consolidation or other transaction. No
fractional shares of Common Stock shall be issued as a result of any adjustment
under this provision, and to the extent any adjustment results in a fractional
share of Common Stock, then the adjustment will be to the lower full share.
7. Method of Exercise.
7.1. Notice to the Company. The Option may 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 and of the Withholding Taxes, if any.
7.2. Delivery of Option Shares. The Company shall deliver a certificate for
the Option Shares to the Employee as soon as practicable after payment therefor.
7.3. Payment of Purchase Price.
7.3.1. Cash Payment. The Employee 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.
3
7.3.2. Cashless Payment. The Committee, in its sole discretion, may allow
Employee to use Common Stock of the Company owned by him to make any required
payments 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 Common Stock used for this purpose shall be
valued at the Fair Market Value. Notwithstanding the foregoing, the Company
shall have the right to reject payment in the form of Common Stock if in the
opinion of counsel for the Company, (i) it could result in an event of
"recapture" under Section 16(b) of the Securities Exchange Act of 1934; (ii)
such shares of Common Stock may not be sold or transferred to the Company; or
(iii) such transfer could create legal difficulties for the Company.
8. Nonassignability. The Option shall not be assignable or transferable, except
by will or by the laws of descent and distribution in the event of the death of
the Employee. No transfer of the Option by the Employee 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 the
Employee 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
(ii) the Option Shares, when issued and delivered by the Company to the
Employee in accordance with the terms and conditions hereof, will be
duly and validly issued and fully paid and non-assessable.
10. Employee Representations. The Employee 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, as amended, within
the last 24 months and all reports issued by the Company to its
stockholders;
4
(iii)he understands that he must bear the economic risk of the investment
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) in his position with the Company, 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 information or can acquire it without unreasonable effort
or expense necessary to verify the accuracy of the information
obtained pursuant to clause (iii) 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) if, at the time of issuance of the Option Shares, the issuance of such
shares have not been registered under the 1933 Act, the certificates
evidencing the Option Shares shall bear the following legend:
"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."
11. Restriction on Transfer of Option Shares.
11.1. Anything in this Agreement to the contrary notwithstanding, Employee
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) the
Employee 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.
11.2. Anything in this Agreement to the contrary notwithstanding, Employee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him (i) prior to six months after the Grant
Date and (ii) 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.
5
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 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. Conflicts with Code and/or Plan. In the event of a conflict between
the provisions of the Code and the provisions of the Plan, the provisions of the
Code shall in all respects be controlling. In the event of a conflict between
the provisions of the Plan and the provisions of this Agreement, the provisions
of the Plan shall in all respects be controlling.
12.3. Employee and Stockholder Rights. The Employee 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. Nothing contained in this
Agreement shall be deemed to confer upon Employee any right to continued
employment with the Company or any subsidiary thereof, nor shall it interfere in
any way with the right of the Company to terminate Employee in accordance with
the provisions regarding such termination set forth in Employee's written
employment agreement with the Company, or if there exists no such agreement, to
terminate Employee at will.
12.4. 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.
12.5. 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 the Employee and the Company.
12.6. 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 per son
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
12.7. 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).
6
12.8. 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:
GLOBAL TELECOMMUNICATION Address: 5697 Rising Sun Avenue
SOLUTIONS, INC. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:__________________________
EMPLOYEE: Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
____________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
7
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
--------------------
DATE
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Stock Option Committee of
the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of _________________
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
the 1994 Performance Equity Plan) of $_________.
I hereby represent and warrant to, and agree with, the Company that:
(i) I have acquired 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 the Plan and 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;
1
(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)if, at the time of issuance of the Option Shares, the issuance of
such shares have not been registered under the 1933 Act, the
certificates evidencing the Option Shares shall bear the following
legend:
"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."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
------------------------------ ----------------------------------------
(Signature) (Address)
------------------------------ ----------------------------------------
(Print Name)
----------------------------------------
(Social Security Number)
2