TRESCOM INTERNATIONAL, INC.
STOCK OPTION AGREEMENT
AGREEMENT, dated as of February 6, 1997, by and between TresCom
International, Inc., a Florida corporation (the "Company") and the undersigned
optionee (the "Optionee").
1. GRANT OF OPTIONS. The Company hereby grants to the Optionee in
accordance with the attached Notice of Stock Option Grant (the "Notice of
Grant") options (the "Options") to purchase a total number of shares (the
"Shares") of the Common Stock, $.0419 par value (the "Common Stock"), of TresCom
International, Inc. set forth in the Notice of Grant at the "Option Price Per
Share" set forth in the Notice of Grant (the "Exercise Price").
If designated as incentive stock options ("ISOs"), the Options are
intended to qualify as "incentive stock options" as defined in Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"). To the extent any
Option issued pursuant to this Agreement does not qualify as an ISO under the
Code, such Option shall be considered a nonstatutory stock option ("NSO") under
the Code.
2. EXERCISE OF OPTIONS. The Options shall be exercisable during their term
in accordance with the terms and conditions set forth below:
(a) RIGHT TO EXERCISE.
(i) VESTING SCHEDULE. Subject to Optionee's continued
employment and the terms of this Agreement and further subject to early vesting
in the event of a Change in Control (as defined in the Stock Option Plan (as
hereinafter defined)), Options to purchase the Shares shall become vested and
fully exercisable as to 20% of such Shares on the first anniversary of the
Vesting Commencement Date (as defined in the Notice of Grant) and shall become
vested and fully exercisable as to an additional 20% of such Shares on each
anniversary of such first anniversary, such that the Options are fully
exercisable five (5) years after the Vesting Commencement Date.
(ii) The Options may not be exercised for a fraction of a
share.
(iii) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Options shall be governed
by Section 5 below.
(iv) In no event may any Option be exercised after the Term
Expiration Date set forth in the Notice of Grant.
(v) As used in this Agreement, the following terms shall have
the meanings ascribed to them below:
"CAUSE" shall have the meaning given to such term in the Employment
Agreement (as defined herein).
"COMMITTEE" means the Compensation Committee that administers the
Stock Option Plan (as defined herein).
"DISABILITY" shall have the meaning given to such term in the
Employment Agreement.
"EMPLOYMENT AGREEMENT" means the Employment Agreement, dated as of
February 22, 1994, as amended, between Optionee and the Company.
"NON-PERFORMANCE" shall have the meaning given to such term
in the Employment Agreement.
"STOCK OPTION PLAN" means the TresCom International, Inc. Second
Amended and Restated 1994 Stock Option Plan, as the same may be amended from
time to time in accordance with its terms.
"TERMINATION WITHOUT CAUSE" shall have the meaning given to such
term in the Employment Agreement.
(vi) To the extent the aggregate fair market value (determined
as of the time the Options are granted) of Shares with respect to which Options
are exercised for the first time by Optionee during any calendar year exceeds
the maximum amount permitted by the Code for treatment as ISOs, such Options
shall be treated as NSOs for purposes of the Code. This rule shall be applied by
taking into account Options in the order in which they were granted. Options
that are treated as NSOs shall otherwise be subject to all the provisions of
this Agreement to the extent applicable.
(b) PROCEDURE FOR EXERCISE. The Options shall be exercisable by
written notice (in the form attached hereto as Exhibit A) which shall state the
election to exercise Options, the method of exercise, the number of Shares in
respect of which Options are being exercised, and such representations and
agreements with respect to such shares of Common Stock as may be required by the
Company. Such written notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the Secretary of the Company. The
written notice shall be accompanied by payment of the Exercise Price. Options
shall be deemed to be exercised upon receipt by the Company of such written
notice accompanied by the Exercise Price.
No Shares will be issued pursuant to the exercise of Options unless
such issuance and such exercise shall comply with all relevant provisions of law
and the requirements of any stock exchange or automated quotation service upon
which the Shares may then be listed or quoted.
3. METHOD OF PAYMENT.
(a) Payment of the Exercise Price for the number of shares for which
Options are being exercised shall be made:
(i) in cash or by check;
(ii) by tender to the Company of shares of the Common Stock
then owned by the Optionee having a fair market value, as determined
by the Company's Board of Directors, at least equal to the Exercise
Price; or
(iii) a combination of the foregoing.
(b) Notwithstanding the foregoing, Options may not be exercised by
tender to the Company of shares of the Common Stock to the extent such tender of
stock would constitute a violation of the provisions of any law, regulation
and/or agreement restricting the redemption of the Common Stock or, if in the
opinion of counsel to the Company, such tender of stock might impair the ability
of purchasers of stock from the Company from taking full advantage of the
provisions of Section 1202 of the Code relating to capital gains treatment of
stock issued by the Company. Unless otherwise provided by the Committee, an
Option may not be exercised by tender to the Company of shares of the Common
Stock unless such shares either have been owned by the Optionee for more than
six (6) months or were not acquired, directly or indirectly, from the Company.
4. RESTRICTIONS ON EXERCISE. Options may not be exercised if the issuance
of the Shares upon such exercise would constitute a violation of any applicable
federal or state securities or other law or regulation. As a condition to the
exercise of an Option, the Company may require Optionee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
5. TERMINATION OF RELATIONSHIP.
(a) In the event of (i) the termination of the Employment Agreement
for Cause, Non-Performance or by reason of the death or Disability of Optionee
or (ii) the termination by Optionee of his employment by the Company (other than
pursuant to a Termination Without Cause), Optionee may, to the extent, but only
to the extent, Options are vested as of the date of termination as provided in
this Agreement, exercise this Option during the "Termination Period" described
in the Notice of Grant, and any Options which are not deemed to have vested in
accordance with Section 2(a) hereof shall automatically expire and be
terminated.
(b) In the event of the termination of the Employment Agreement
pursuant to a Termination Without Cause, all Options which had not previously
vested shall automatically be deemed to have vested and Optionee may, to the
extent Options are deemed to have vested
as set forth herein, exercise Options during the Termination Period, and any
Options which are not deemed to have vested in accordance herewith shall
automatically expire and be terminated.
(c) If, following the expiration of the Employment Agreement, the
employment of Optionee is terminated, Optionee may, to the extent otherwise so
entitled at the date of such termination, exercise Options during the
Termination Period, and any Options which are not deemed to have vested in
accordance herewith shall automatically expire and be terminated.
(d) If Optionee does not exercise Options within the time specified
herein as to any Shares, such Options shall terminate as to such Shares.
(e) For purposes of this Section 5 and the definition of "Cause" in
subsection 2(a)(v), "Company" shall mean TresCom International, Inc. and any of
its subsidiaries (as defined in the Stock Option Plan).
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
stockholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Stock Option Plan but as to which no
Options have yet been granted or which have been returned to the Stock Option
Plan upon cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; PROVIDED, HOWEVER, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to the
Options.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Board shall notify the Optionee
at least fifteen (15) days prior to such proposed action. To the extent not
previously exercised, all Options will terminate immediately prior to the
consummation of such proposed action.
(c) MERGER. In the event of a merger of the Company with or into
another corporation, the Options shall be assumed or an equivalent option shall
be substituted by such successor corporation or a parent or subsidiary of such
successor corporation. For the purposes of this paragraph, the Options shall be
considered assumed if, following the merger, the Options
confer the right to purchase, for each Share subject to a vested Option
immediately prior to the merger, the consideration (whether stock, cash, or
other securities or property) received in the merger by holders of Common Stock
for each share held on the effective date of the transaction (and if holders
were offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock); PROVIDED,
HOWEVER, that if such consideration received in the merger was not solely common
stock of the successor corporation or its parent, the Committee may, with the
consent of the successor corporation and the participant, provide for the
consideration to be received upon the exercise of Options, for each Share
subject to such Options, to be solely common stock of the successor corporation
or its parent equal in fair market value to the per share consideration received
by holders of Common Stock in the merger.
7. NON-TRANSFERABILITY OF OPTIONS. Options may not be transferred in any
manner other than by will or by the laws of descent or distribution and may be
exercised during the lifetime of Optionee only by him/her. The terms of this
Agreement shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
8. TERM OF OPTIONS. The Options may be exercised only on or prior to the
"Term Expiration Date" set forth in the Notice of Grant, and may be exercised
during such term only in accordance with the terms and conditions of this
Agreement.
9. TAX CONSEQUENCES. Set forth below is a brief summary as of the date of
this Agreement of some of the federal tax consequences of exercise of Options
and disposition of the Shares. THIS SUMMARY ADDRESSES ONLY CERTAIN OF THE
GENERAL FEDERAL INCOME TAX CONSIDERATIONS; IT DOES NOT CONSIDER THE FACTS AND
CIRCUMSTANCES OF ANY PARTICULAR OPTIONEE'S SITUATION, NOR DOES IT ADDRESS STATE,
LOCAL OR FOREIGN TAX CONSIDERATIONS. THIS SUMMARY IS BASED ON FEDERAL TAX LAW AS
CURRENTLY IN EFFECT, AND SUCH TAX LAW IS SUBJECT TO CHANGE. OPTIONEE SHOULD
CONSULT HIS OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES TO HIM OF
RECEIVING AND EXERCISING OPTIONS AND DISPOSING OF SHARES BEFORE EXERCISING THE
OPTIONS OR DISPOSING OF THE SHARES.
(i) EXERCISE OF ISOS. If an Option qualifies as an ISO, no regular
federal income tax will be imposed upon the exercise of such Option. However,
the excess, if any, of the fair market value of the Shares on the date of
exercise over the Exercise Price will generally be treated as an adjustment for
federal alternative minimum tax purposes and may subject the Optionee to the
alternative minimum tax in the year of exercise.
(ii) EXERCISE OF NSOS. If an Option does not qualify as an ISO,
federal income tax may be imposed upon the exercise of such Option. The Optionee
will generally be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the fair market value
of the Shares on the date of exercise over the Exercise Price. If Optionee is an
employee, the Company will be required to deduct and
withhold applicable taxes from Optionee's compensation, or collect such amounts
from Optionee and pay them to the applicable taxing authorities, at the time of
exercise.
(iii) DISPOSITION OF SHARES. In the case of Shares acquired on
exercise of an NSO that are held for at least one (1) year, any gain realized on
disposition of the Shares will generally be treated as long-term capital gain
for federal income tax purposes. In the case of Shares acquired on exercise of
an ISO that are held for at least one (1) year after exercise and two (2) years
after the "Date of Grant" set forth in the Notice of Grant, any gain realized on
disposition of the Shares will also be treated as long-term capital gain for
federal income tax purposes. If Shares purchased under an ISO are disposed of
prior to the later of one (1) year after exercise of the ISO and two (2) years
after the Date of Grant, any gain realized on such disposition will generally be
treated as compensation income (taxable at ordinary income rates) to the extent
of the excess, if any, of the fair market value of the Shares on the date of
exercise over the Exercise Price, and the balance of such gain will generally be
treated as long-term capital gain.
(iv) NOTICE OF DISQUALIFYING DISPOSITION OF ISO SHARES. If an Option
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two (2) years after the Date of Grant, or (2) the date one
(1) year after transfer of such Shares to the Optionee upon exercise of the ISO,
the Optionee shall immediately notify the Company in writing of such
disposition. Optionee agrees that Optionee may be subject to tax withholding by
the Company on the compensation income recognized by the Optionee from the early
disposition by payment in cash or out of the current compensation paid to the
Optionee.
10. RECEIPT OF STOCK OPTION PLAN. Optionee acknowledges that he has
received, read and understood the provisions of the Stock Option Plan pursuant
to which this Agreement was issued, and agrees to be bound by its terms and
conditions.
11. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
Committee (or if no Committee is then in existence, to the Company's Board of
Directors), which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Committee (or the Board) shall be final and
binding on the Company and on Optionee.
12. NOTICES. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
13. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further actions as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
14. ENTIRE AGREEMENT; GOVERNING LAW; SEVERABILITY. The Stock Option Plan,
Notice of Grant and Exercise Notice are incorporated herein by reference. This
Agreement, the Stock Option Plan, the Notice of Grant and the Exercise Notice
constitute the entire agreement of the parties and supersede in their entirety
all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof, and shall be governed by and construed in
accordance with the laws of the State of Florida, excluding that body of law
pertaining to conflicts of law. Should any provision of this Agreement be
determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
OPTIONEE TRESCOM INTERNATIONAL, INC.
_______________________________ By:_________________________________
Signature Title:
ADDRESS: ADDRESS:
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EXHIBIT A
EXERCISE NOTICE
TresCom International, Inc.
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Attention: Secretary
1. EXERCISE OF OPTION. Effective as of today, ________________, the
undersigned ("Optionee") hereby elects to exercise Optionee's option to purchase
________ shares of Common Stock (the "Shares") of TresCom International, Inc.
(the "Company") under and pursuant to the Company's Second Amended and Restated
1994 Stock Option Plan (the "Stock Option Plan"), and the Stock Option Agreement
by and between the Company and the Optionee dated February 6, 1997 (the "Option
Agreement").
2. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Stock Option Plan and the Option Agreement and
agrees to abide by and be bound by their terms and conditions. References herein
to this "Agreement" include this Exercise Notice, the Stock Option Plan, the
Notice of Grant (which is attached to the Option Agreement) and the Option
Agreement, all of which are incorporated herein by reference as provided in
Section 11 hereof.
3. COMPLIANCE WITH SECURITIES LAWS. Notwithstanding any other provision of
the Option Agreement to the contrary, Optionee understands and acknowledges that
the exercise of any rights to purchase any Shares is expressly conditioned upon
compliance with the Securities Act of 1933, as amended, all applicable state
securities laws and all applicable requirements of any stock exchange, automated
quotation service or over the counter market on which the Company's Common Stock
may be listed or traded at the time of exercise and transfer. Optionee agrees to
cooperate with the Company to ensure compliance with such laws.
4. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
Agreement, Optionee shall have all of the rights of a shareholder of the Company
with respect to the Shares from and after the date that Optionee delivers full
payment of the Exercise Price until such time as Optionee disposes of the
Shares.
5. TAX CONSULTATION. Optionee understands that Optionee may suffer adverse
tax consequences as a result of Optionee's purchase or disposition of the
Shares. Optionee represents that Optionee has consulted with any tax consultants
Optionee deems advisable in connection with the purchase or disposition of the
Shares and that Optionee is not relying on the Company for any tax advice.
6. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights under
this Agreement to single or multiple assignees, and this Agreement shall inure
to the benefit of the successors and assigns of the Company. This Agreement
shall be binding upon Optionee and his or her heirs, executors, administrators,
successors and assigns.
7. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or by the Company forthwith to the
committee thereof that administers the Stock Option Plan (or if no such
committee is then in existence, to the Company's Board of Directors), which
shall review such dispute at its next regular meeting. The resolution of such a
dispute by the committee (or the Board) shall be final and binding on the
Company and on Optionee.
8. NOTICES. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified mail, with postage and fees
prepaid, addressed to the other party at its address as shown below beneath its
signature, or to such other address as such party may designate in writing from
time to time to the other party.
9. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further actions as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
10. DELIVERY OF PAYMENT. Optionee herewith delivers to the Company the full
Exercise Price for the Shares. Optionee hereby elects to pay the full Exercise
Price (check the appropriate box):
|_| in cash or by check;
|_| by tender to the Company of shares of Common Stock in
accordance with Section 3(a)(ii) of the Option Agreement;
|_| by a combination of the foregoing.
11. ENTIRE AGREEMENT; GOVERNING LAW; SEVERABILITY. The Stock Option Plan,
Notice of Grant and Option Agreement are incorporated herein by reference. This
Exercise Notice, the Stock Option Plan, the Notice of Grant and the Option
Agreement constitute the entire agreement of the parties and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and shall be governed by and construed in
accordance with the laws of the State of Florida, excluding that body of law
pertaining to conflicts of law. Should any provision of this Agreement be
determined by a court of law to be illegal or unenforceable, the other
provisions shall nevertheless remain effective and shall remain enforceable.
Submitted by: Accepted by:
OPTIONEE: TRESCOM INTERNATIONAL, INC.
_________________________________ By:________________________________
Signature Title:
_________________________________
Print Name
ADDRESS: ADDRESS:
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