EXHIBIT 10.11
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), entered into
as of the 30th day of October, 1997, between USCI, Inc., a Delaware
corporation, located at 0000-X Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000
(the "Corporation") and Xxxxxx X. Xxxxx ("Optionee").
WHEREAS, the Corporation has entered into an agreement of even date
herewith with PaineWebber Inc. (PWI"), pursuant to which PWI has agreed to
provide certain Letter of Credit financing for the account of the
Corporation's wholly-owned subsidiary, Ameritel Communications, Inc., and the
Corporation has agreed to deposit up to 674,107 shares of the Corporation's
Common Stock as collateral (the "Collateral Shares") for the issuance of such
Letters of Credit, and
WHEREAS, the Optionee and certain other stockholders of the Corporation
have agreed to provide the Corporation with the Collateral Shares pursuant to
the terms and conditions of that certain agreement dated of even date herewith
by and among such parties, and
WHEREAS, in consideration for the Optionee depositing 23,906 Collateral
Shares, the Board of Directors of the Corporation has determined to grant a
nonqualified stock option to the Optionee to purchase 2,391 shares of the
Corporation's Common Stock, par value $.0001 per share (the "Common Stock"),
upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Grant of Option. The Corporation hereby grants to the Optionee
a nonqualified stock option (the "Option") to purchase 2,391 shares of Common
Stock (the "Shares") at a price of $6.00 per Share. Unless otherwise provided
herein, this Option shall become exercisable in full commencing on the date
hereof. The Corporation shall have authority in its discretion to prescribe
in that this option may be exercised in different installments during the term
of the option. An option may be exercised at any time or from time to time
during the term of the option as to any or all full shares which have become
purchasable under the provisions of the option, but not at any time as to less
than 25 shares unless the remaining shares which have become so purchasable
are less than 25 shares. The purchase price of the shares shall be paid in
full upon the exercise of the option, and the Company shall not be required
to deliver certificates for such shares until such payment has been made.
2. Method of Exercise. The Optionee shall exercise the Option,
whether in whole or in part, by written notice (the "Notice of Exercise")
directed to the Secretary of the Corporation, specifying the number of Shares
to be purchased and the purchase price being paid. The Notice of Exercise
shall be accompanied by a certified or bank check payable to the order of the
Corporation in payment of the purchase price for the number of Shares
specified therein. Subject to section 7(a) herein, upon the Corporation's
receipt of the Notice of Exercise and payment of the purchase price of the
Shares covered thereby, the Corporation shall cause a certificate representing
such Shares to be issued to the Optionee.
3. Termination of Option.
(a) Except as otherwise provided herein, the Option shall
terminate immediately upon any of the following events, whichever occurs
first:
(i) The date, if any, set by the Board of Directors as an
accelerated expiration date in the event of the liquidation or dissolution of
the Corporation; or
(ii) The expiration of the five-year term of the Option
on the fifth anniversary of the date of this Agreement.
4. Right to Exercise. During the Optionee's lifetime the Option is
exercisable only by the Optionee, and is not assignable or transferable by the
Optionee, whether voluntarily, by operation of law, or otherwise, and no other
person or entity shall acquire any rights thereof. In the event of the
termination of the Optionee's service to the Corporation due to the Optionee's
death or Disability, the Option may be exercised to the extent exercisable on
the date of such termination, in accordance with Section 1 hereof, by the
Optionee or, if applicable, the Optionee's estate, duly appointed executor,
Administrator, or legal representative, or by or on behalf of such person or
persons to whom the Optionee's rights under the Option pass by will or by the
laws of descent and distribution.
5. Certain Changes. The number, kind, and purchase price of the
Shares shall be proportionately adjusted by the Board of Directors of the
Corporation for any increase, decrease, or change in the outstanding Common
Stock by reason of a stock dividend, recapitalization, merger consolidation,
split-up, combination, exchange of shares, or similar transaction (but not by
reason of the issuance or purchase of Common Stock by the Corporation in
consideration for money, services, or property).
6. Limitations of Exercise. If, at any time, the Board of Directors
determines, in its discretion, that the listing, registration or qualification
of the Shares upon any securities exchange, or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the issuance or
purchase thereof, the Option may not be exercised unless and until, such
listing, registration, qualification, consent, or approval shall have been
effected or obtained and is free, of any conditions, which the Board of
Directors, in its sole discretion, deems unacceptable.
7. Conditions of Exercise. Unless the Shares are covered by a then
current and effective registration statement or qualified Offering Statement
under Regulation A under the securities Act of 1933, as amended (the "Act")),
any exercise of this Option by the Optionee shall be deemed to be an
acknowledgement, representation and agreement by the Optionee that (i) such
Shares are being purchased for investment and are being acquired by the
Optionee for investment only and not with a view to distribute or resale
(other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (ii) the Optionee has ben advised and understands that
(1) the Shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (2) the Company is under no obligation to
register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
shares may not be transferred without compliance with all applicable federal
and state securities laws, and (iv) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions imposed herein
may be endorsed on the certificates. Notwithstanding the foregoing, if the
Company determines that issuance of the Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may
defer exercise of this Option until any of the events described in this
sentence has occurred.
8. Construction of Agreement. This Option is not subject to any of
the Corporation's stock option plans. The Board of Directors of the
Corporation is vested with conclusive authority to interpret and construe this
Option.
9. Status of Optionee.
(a) Nothing in this Agreement shall confer upon the Optionee any right
to continue in the employ of the Corporation, or, if applicable, any parent
or subsidiary thereof, or, if applicable, a Section 425(a) Company, or shall
interfere in any way with the right of such entities to terminate the
Optionee's relationship with the Corporation at any time without their
incurring any liability therefor.
(b) The Optionee shall have no rights as a stockholder of the
Corporation with respect to the Shares until their issuance in accordance with
Section 2 hereof.
10. Reservation of Shares. The Board of Directors of the Corporation
shall be under no obligation to reserve shares of Common Stock to fill the
Option. Neither the Option, nor any reservation of Common Stock thereunder,
shall constitute the establishment of a trust, and no particular shares of
Common Stock shall be identified as being optioned or reserved for the
Optionee.
11. Notices. All notices permitted or required hereunder shall be in
writing and shall be sent by certified mail, return receipt requested, postage
prepaid, to the respective addresses of the parties set forth above, or to
such other address as the party to receive the notice designates by notice to
the other party. Any such notice shall be deemed effective on delivery.
12. Entire Agreement. This Agreement is the entire agreement, and
supersedes and terminates all prior agreements between the parties with
respect to the subject matter contained herein.
13. Amendment or Termination. Except as otherwise provided herein,
this Agreement may be modified, amended, or terminated only by written
instrument executed by both parties.
14. Waiver. No waiver of any of the provisions of this Agreement
shall be effective unless in writing and signed by the party to be charged
with such waiver, and such waiver shall be strictly limited to the terms of
such writing.
15. Binding Effect. Except as otherwise provided in Section 4 hereof,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, and their heirs, devisees, executors, administrators, legal
representatives, successors, and assigns.
16. Law. This Agreement shall be governed by the laws of the State
of Georgia. The parties hereby consent to the jurisdiction of the State of
Georgia as a forum for litigating any disputes arising hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OPTIONEE USCI, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ [authorized officer]
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), entered into
as of the 30th day of October, 1997, between USCI, Inc., a Delaware
corporation, located at 0000-X Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000
(the "Corporation") and Xxxxxx Xxxxx ("Optionee").
WHEREAS, the Corporation has entered into an agreement of even date
herewith with PaineWebber Inc. (PWI"), pursuant to which PWI has agreed to
provide certain Letter of Credit financing for the account of the
Corporation's wholly-owned subsidiary, Ameritel Communications, Inc., and the
Corporation has agreed to deposit up to 674,107 shares of the Corporation's
Common Stock as collateral (the "Collateral Shares") for the issuance of such
Letters of Credit, and
WHEREAS, the Optionee and certain other stockholders of the Corporation
have agreed to provide the Corporation with the Collateral Shares pursuant to
the terms and conditions of that certain agreement dated of even date herewith
by and among such parties, and
WHEREAS, in consideration for the Optionee depositing 75,000 Collateral
Shares, the Board of Directors of the Corporation has determined to grant a
nonqualified stock option to the Optionee to purchase 7,500 shares of the
Corporation's Common Stock, par value $.0001 per share (the "Common Stock"),
upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Grant of Option. The Corporation hereby grants to the Optionee
a nonqualified stock option (the "Option") to purchase 7,500 shares of Common
Stock (the "Shares") at a price of $6.00 per Share. Unless otherwise provided
herein, this Option shall become exercisable in full commencing on the date
hereof. The Corporation shall have authority in its discretion to prescribe
in that this option may be exercised in different installments during the term
of the option. An option may be exercised at any time or from time to time
during the term of the option as to any or all full shares which have become
purchasable under the provisions of the option, but not at any time as to less
than 25 shares unless the remaining shares which have become so purchasable
are less than 25 shares. The purchase price of the shares shall be paid in
full upon the exercise of the option, and the Company shall not be required
to deliver certificates for such shares until such payment has been made.
2. Method of Exercise. The Optionee shall exercise the Option,
whether in whole or in part, by written notice (the "Notice of Exercise")
directed to the Secretary of the Corporation, specifying the number of Shares
to be purchased and the purchase price being paid. The Notice of Exercise
shall be accompanied by a certified or bank check payable to the order of the
Corporation in payment of the purchase price for the number of Shares
specified therein. Subject to section 7(a) herein, upon the Corporation's
receipt of the Notice of Exercise and payment of the purchase price of the
Shares covered thereby, the Corporation shall cause a certificate representing
such Shares to be issued to the Optionee.
3. Termination of Option.
(a) Except as otherwise provided herein, the Option shall
terminate immediately upon any of the following events, whichever occurs
first:
(i) The date, if any, set by the Board of Directors as an
accelerated expiration date in the event of the liquidation or dissolution of
the Corporation; or
(ii) The expiration of the five-year term of the Option
on the fifth anniversary of the date of this Agreement.
4. Right to Exercise. During the Optionee's lifetime the Option is
exercisable only by the Optionee, and is not assignable or transferable by the
Optionee, whether voluntarily, by operation of law, or otherwise, and no other
person or entity shall acquire any rights thereof. In the event of the
termination of the Optionee's service to the Corporation due to the Optionee's
death or Disability, the Option may be exercised to the extent exercisable on
the date of such termination, in accordance with Section 1 hereof, by the
Optionee or, if applicable, the Optionee's estate, duly appointed executor,
Administrator, or legal representative, or by or on behalf of such person or
persons to whom the Optionee's rights under the Option pass by will or by the
laws of descent and distribution.
5. Certain Changes. The number, kind, and purchase price of the
Shares shall be proportionately adjusted by the Board of Directors of the
Corporation for any increase, decrease, or change in the outstanding Common
Stock by reason of a stock dividend, recapitalization, merger consolidation,
split-up, combination, exchange of shares, or similar transaction (but not by
reason of the issuance or purchase of Common Stock by the Corporation in
consideration for money, services, or property).
6. Limitations of Exercise. If, at any time, the Board of Directors
determines, in its discretion, that the listing, registration or qualification
of the Shares upon any securities exchange, or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the issuance or
purchase thereof, the Option may not be exercised unless and until, such
listing, registration, qualification, consent, or approval shall have been
effected or obtained and is free, of any conditions, which the Board of
Directors, in its sole discretion, deems unacceptable.
7. Conditions of Exercise. Unless the Shares are covered by a then
current and effective registration statement or qualified Offering Statement
under Regulation A under the securities Act of 1933, as amended (the "Act")),
any exercise of this Option by the Optionee shall be deemed to be an
acknowledgement, representation and agreement by the Optionee that (i) such
Shares are being purchased for investment and are being acquired by the
Optionee for investment only and not with a view to distribute or resale
(other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (ii) the Optionee has ben advised and understands that
(1) the Shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (2) the Company is under no obligation to
register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
shares may not be transferred without compliance with all applicable federal
and state securities laws, and (iv) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions imposed herein
may be endorsed on the certificates. Notwithstanding the foregoing, if the
Company determines that issuance of the Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may
defer exercise of this Option until any of the events described in this
sentence has occurred.
8. Construction of Agreement. This Option is not subject to any of
the Corporation's stock option plans. The Board of Directors of the
Corporation is vested with conclusive authority to interpret and construe this
Option.
9. Status of Optionee.
(a) Nothing in this Agreement shall confer upon the Optionee any right
to continue in the employ of the Corporation, or, if applicable, any parent
or subsidiary thereof, or, if applicable, a Section 425(a) Company, or shall
interfere in any way with the right of such entities to terminate the
Optionee's relationship with the Corporation at any time without their
incurring any liability therefor.
(b) The Optionee shall have no rights as a stockholder of the
Corporation with respect to the Shares until their issuance in accordance with
Section 2 hereof.
10. Reservation of Shares. The Board of Directors of the Corporation
shall be under no obligation to reserve shares of Common Stock to fill the
Option. Neither the Option, nor any reservation of Common Stock thereunder,
shall constitute the establishment of a trust, and no particular shares of
Common Stock shall be identified as being optioned or reserved for the
Optionee.
11. Notices. All notices permitted or required hereunder shall be in
writing and shall be sent by certified mail, return receipt requested, postage
prepaid, to the respective addresses of the parties set forth above, or to
such other address as the party to receive the notice designates by notice to
the other party. Any such notice shall be deemed effective on delivery.
12. Entire Agreement. This Agreement is the entire agreement, and
supersedes and terminates all prior agreements between the parties with
respect to the subject matter contained herein.
13. Amendment or Termination. Except as otherwise provided herein,
this Agreement may be modified, amended, or terminated only by written
instrument executed by both parties.
14. Waiver. No waiver of any of the provisions of this Agreement
shall be effective unless in writing and signed by the party to be charged
with such waiver, and such waiver shall be strictly limited to the terms of
such writing.
15. Binding Effect. Except as otherwise provided in Section 4 hereof,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, and their heirs, devisees, executors, administrators, legal
representatives, successors, and assigns.
16. Law. This Agreement shall be governed by the laws of the State
of Georgia. The parties hereby consent to the jurisdiction of the State of
Georgia as a forum for litigating any disputes arising hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OPTIONEE USCI, INC.
/s/ Xxxxxx Xxxxx By: /s/ [authorized officer]
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), entered into
as of the 30th day of October, 1997, between USCI, Inc., a Delaware
corporation, located at 0000-X Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000
(the "Corporation") and Xxxxx X. Xxxx ("Optionee").
WHEREAS, the Corporation has entered into an agreement of even date
herewith with PaineWebber Inc. (PWI"), pursuant to which PWI has agreed to
provide certain Letter of Credit financing for the account of the
Corporation's wholly-owned subsidiary, Ameritel Communications, Inc., and the
Corporation has agreed to deposit up to 674,107 shares of the Corporation's
Common Stock as collateral (the "Collateral Shares") for the issuance of such
Letters of Credit, and
WHEREAS, the Optionee and certain other stockholders of the Corporation
have agreed to provide the Corporation with the Collateral Shares pursuant to
the terms and conditions of that certain agreement dated of even date herewith
by and among such parties, and
WHEREAS, in consideration for the Optionee depositing 350,000 Collateral
Shares, the Board of Directors of the Corporation has determined to grant a
nonqualified stock option to the Optionee to purchase 35,000 shares of the
Corporation's Common Stock, par value $.0001 per share (the "Common Stock"),
upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Grant of Option. The Corporation hereby grants to the Optionee
a nonqualified stock option (the "Option") to purchase 35,000 shares of Common
Stock (the "Shares") at a price of $6.00 per Share. Unless otherwise provided
herein, this Option shall become exercisable in full commencing on the date
hereof. The Corporation shall have authority in its discretion to prescribe
in that this option may be exercised in different installments during the term
of the option. An option may be exercised at any time or from time to time
during the term of the option as to any or all full shares which have become
purchasable under the provisions of the option, but not at any time as to less
than 25 shares unless the remaining shares which have become so purchasable
are less than 25 shares. The purchase price of the shares shall be paid in
full upon the exercise of the option, and the Company shall not be required
to deliver certificates for such shares until such payment has been made.
2. Method of Exercise. The Optionee shall exercise the Option,
whether in whole or in part, by written notice (the "Notice of Exercise")
directed to the Secretary of the Corporation, specifying the number of Shares
to be purchased and the purchase price being paid. The Notice of Exercise
shall be accompanied by a certified or bank check payable to the order of the
Corporation in payment of the purchase price for the number of Shares
specified therein. Subject to section 7(a) herein, upon the Corporation's
receipt of the Notice of Exercise and payment of the purchase price of the
Shares covered thereby, the Corporation shall cause a certificate representing
such Shares to be issued to the Optionee.
3. Termination of Option.
(a) Except as otherwise provided herein, the Option shall
terminate immediately upon any of the following events, whichever occurs
first:
(i) The date, if any, set by the Board of Directors as an
accelerated expiration date in the event of the liquidation or dissolution of
the Corporation; or
(ii) The expiration of the five-year term of the Option
on the fifth anniversary of the date of this Agreement.
4. Right to Exercise. During the Optionee's lifetime the Option is
exercisable only by the Optionee, and is not assignable or transferable by the
Optionee, whether voluntarily, by operation of law, or otherwise, and no other
person or entity shall acquire any rights thereof. In the event of the
termination of the Optionee's service to the Corporation due to the Optionee's
death or Disability, the Option may be exercised to the extent exercisable on
the date of such termination, in accordance with Section 1 hereof, by the
Optionee or, if applicable, the Optionee's estate, duly appointed executor,
Administrator, or legal representative, or by or on behalf of such person or
persons to whom the Optionee's rights under the Option pass by will or by the
laws of descent and distribution.
5. Certain Changes. The number, kind, and purchase price of the
Shares shall be proportionately adjusted by the Board of Directors of the
Corporation for any increase, decrease, or change in the outstanding Common
Stock by reason of a stock dividend, recapitalization, merger consolidation,
split-up, combination, exchange of shares, or similar transaction (but not by
reason of the issuance or purchase of Common Stock by the Corporation in
consideration for money, services, or property).
6. Limitations of Exercise. If, at any time, the Board of Directors
determines, in its discretion, that the listing, registration or qualification
of the Shares upon any securities exchange, or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the issuance or
purchase thereof, the Option may not be exercised unless and until, such
listing, registration, qualification, consent, or approval shall have been
effected or obtained and is free, of any conditions, which the Board of
Directors, in its sole discretion, deems unacceptable.
7. Conditions of Exercise. Unless the Shares are covered by a then
current and effective registration statement or qualified Offering Statement
under Regulation A under the securities Act of 1933, as amended (the "Act")),
any exercise of this Option by the Optionee shall be deemed to be an
acknowledgement, representation and agreement by the Optionee that (i) such
Shares are being purchased for investment and are being acquired by the
Optionee for investment only and not with a view to distribute or resale
(other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (ii) the Optionee has ben advised and understands that
(1) the Shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (2) the Company is under no obligation to
register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
shares may not be transferred without compliance with all applicable federal
and state securities laws, and (iv) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions imposed herein
may be endorsed on the certificates. Notwithstanding the foregoing, if the
Company determines that issuance of the Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may
defer exercise of this Option until any of the events described in this
sentence has occurred.
8. Construction of Agreement. This Option is not subject to any of
the Corporation's stock option plans. The Board of Directors of the
Corporation is vested with conclusive authority to interpret and construe this
Option.
9. Status of Optionee.
(a) Nothing in this Agreement shall confer upon the Optionee any right
to continue in the employ of the Corporation, or, if applicable, any parent
or subsidiary thereof, or, if applicable, a Section 425(a) Company, or shall
interfere in any way with the right of such entities to terminate the
Optionee's relationship with the Corporation at any time without their
incurring any liability therefor.
(b) The Optionee shall have no rights as a stockholder of the
Corporation with respect to the Shares until their issuance in accordance with
Section 2 hereof.
10. Reservation of Shares. The Board of Directors of the Corporation
shall be under no obligation to reserve shares of Common Stock to fill the
Option. Neither the Option, nor any reservation of Common Stock thereunder,
shall constitute the establishment of a trust, and no particular shares of
Common Stock shall be identified as being optioned or reserved for the
Optionee.
11. Notices. All notices permitted or required hereunder shall be in
writing and shall be sent by certified mail, return receipt requested, postage
prepaid, to the respective addresses of the parties set forth above, or to
such other address as the party to receive the notice designates by notice to
the other party. Any such notice shall be deemed effective on delivery.
12. Entire Agreement. This Agreement is the entire agreement, and
supersedes and terminates all prior agreements between the parties with
respect to the subject matter contained herein.
13. Amendment or Termination. Except as otherwise provided herein,
this Agreement may be modified, amended, or terminated only by written
instrument executed by both parties.
14. Waiver. No waiver of any of the provisions of this Agreement
shall be effective unless in writing and signed by the party to be charged
with such waiver, and such waiver shall be strictly limited to the terms of
such writing.
15. Binding Effect. Except as otherwise provided in Section 4 hereof,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, and their heirs, devisees, executors, administrators, legal
representatives, successors, and assigns.
16. Law. This Agreement shall be governed by the laws of the State
of Georgia. The parties hereby consent to the jurisdiction of the State of
Georgia as a forum for litigating any disputes arising hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OPTIONEE USCI, INC.
/s/ Xxxxx X. Xxxx By: /s/ [authorized officer]
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), entered into
as of the 30th day of October, 1997, between USCI, Inc., a Delaware
corporation, located at 0000-X Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000
(the "Corporation") and Xxxxxx X. Xxxxxxxxxx ("Optionee").
WHEREAS, the Corporation has entered into an agreement of even date
herewith with PaineWebber Inc. (PWI"), pursuant to which PWI has agreed to
provide certain Letter of Credit financing for the account of the
Corporation's wholly-owned subsidiary, Ameritel Communications, Inc., and the
Corporation has agreed to deposit up to 674,107 shares of the Corporation's
Common Stock as collateral (the "Collateral Shares") for the issuance of such
Letters of Credit, and
WHEREAS, the Optionee and certain other stockholders of the Corporation
have agreed to provide the Corporation with the Collateral Shares pursuant to
the terms and conditions of that certain agreement dated of even date herewith
by and among such parties, and
WHEREAS, in consideration for the Optionee depositing 53,500 Collateral
Shares, the Board of Directors of the Corporation has determined to grant a
nonqualified stock option to the Optionee to purchase 5,350 shares of the
Corporation's Common Stock, par value $.0001 per share (the "Common Stock"),
upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Grant of Option. The Corporation hereby grants to the Optionee
a nonqualified stock option (the "Option") to purchase 5,350 shares of Common
Stock (the "Shares") at a price of $6.00 per Share. Unless otherwise provided
herein, this Option shall become exercisable in full commencing on the date
hereof. The Corporation shall have authority in its discretion to prescribe
in that this option may be exercised in different installments during the term
of the option. An option may be exercised at any time or from time to time
during the term of the option as to any or all full shares which have become
purchasable under the provisions of the option, but not at any time as to less
than 25 shares unless the remaining shares which have become so purchasable
are less than 25 shares. The purchase price of the shares shall be paid in
full upon the exercise of the option, and the Company shall not be required
to deliver certificates for such shares until such payment has been made.
2. Method of Exercise. The Optionee shall exercise the Option,
whether in whole or in part, by written notice (the "Notice of Exercise")
directed to the Secretary of the Corporation, specifying the number of Shares
to be purchased and the purchase price being paid. The Notice of Exercise
shall be accompanied by a certified or bank check payable to the order of the
Corporation in payment of the purchase price for the number of Shares
specified therein. Subject to section 7(a) herein, upon the Corporation's
receipt of the Notice of Exercise and payment of the purchase price of the
Shares covered thereby, the Corporation shall cause a certificate representing
such Shares to be issued to the Optionee.
3. Termination of Option.
(a) Except as otherwise provided herein, the Option shall
terminate immediately upon any of the following events, whichever occurs
first:
(i) The date, if any, set by the Board of Directors as an
accelerated expiration date in the event of the liquidation or dissolution of
the Corporation; or
(ii) The expiration of the five-year term of the Option
on the fifth anniversary of the date of this Agreement.
4. Right to Exercise. During the Optionee's lifetime the Option is
exercisable only by the Optionee, and is not assignable or transferable by the
Optionee, whether voluntarily, by operation of law, or otherwise, and no other
person or entity shall acquire any rights thereof. In the event of the
termination of the Optionee's service to the Corporation due to the Optionee's
death or Disability, the Option may be exercised to the extent exercisable on
the date of such termination, in accordance with Section 1 hereof, by the
Optionee or, if applicable, the Optionee's estate, duly appointed executor,
Administrator, or legal representative, or by or on behalf of such person or
persons to whom the Optionee's rights under the Option pass by will or by the
laws of descent and distribution.
5. Certain Changes. The number, kind, and purchase price of the
Shares shall be proportionately adjusted by the Board of Directors of the
Corporation for any increase, decrease, or change in the outstanding Common
Stock by reason of a stock dividend, recapitalization, merger consolidation,
split-up, combination, exchange of shares, or similar transaction (but not by
reason of the issuance or purchase of Common Stock by the Corporation in
consideration for money, services, or property).
6. Limitations of Exercise. If, at any time, the Board of Directors
determines, in its discretion, that the listing, registration or qualification
of the Shares upon any securities exchange, or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the issuance or
purchase thereof, the Option may not be exercised unless and until, such
listing, registration, qualification, consent, or approval shall have been
effected or obtained and is free, of any conditions, which the Board of
Directors, in its sole discretion, deems unacceptable.
7. Conditions of Exercise. Unless the Shares are covered by a then
current and effective registration statement or qualified Offering Statement
under Regulation A under the securities Act of 1933, as amended (the "Act")),
any exercise of this Option by the Optionee shall be deemed to be an
acknowledgement, representation and agreement by the Optionee that (i) such
Shares are being purchased for investment and are being acquired by the
Optionee for investment only and not with a view to distribute or resale
(other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (ii) the Optionee has ben advised and understands that
(1) the Shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (2) the Company is under no obligation to
register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
shares may not be transferred without compliance with all applicable federal
and state securities laws, and (iv) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions imposed herein
may be endorsed on the certificates. Notwithstanding the foregoing, if the
Company determines that issuance of the Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may
defer exercise of this Option until any of the events described in this
sentence has occurred.
8. Construction of Agreement. This Option is not subject to any of
the Corporation's stock option plans. The Board of Directors of the
Corporation is vested with conclusive authority to interpret and construe this
Option.
9. Status of Optionee.
(a) Nothing in this Agreement shall confer upon the Optionee any right
to continue in the employ of the Corporation, or, if applicable, any parent
or subsidiary thereof, or, if applicable, a Section 425(a) Company, or shall
interfere in any way with the right of such entities to terminate the
Optionee's relationship with the Corporation at any time without their
incurring any liability therefor.
(b) The Optionee shall have no rights as a stockholder of the
Corporation with respect to the Shares until their issuance in accordance with
Section 2 hereof.
10. Reservation of Shares. The Board of Directors of the Corporation
shall be under no obligation to reserve shares of Common Stock to fill the
Option. Neither the Option, nor any reservation of Common Stock thereunder,
shall constitute the establishment of a trust, and no particular shares of
Common Stock shall be identified as being optioned or reserved for the
Optionee.
11. Notices. All notices permitted or required hereunder shall be in
writing and shall be sent by certified mail, return receipt requested, postage
prepaid, to the respective addresses of the parties set forth above, or to
such other address as the party to receive the notice designates by notice to
the other party. Any such notice shall be deemed effective on delivery.
12. Entire Agreement. This Agreement is the entire agreement, and
supersedes and terminates all prior agreements between the parties with
respect to the subject matter contained herein.
13. Amendment or Termination. Except as otherwise provided herein,
this Agreement may be modified, amended, or terminated only by written
instrument executed by both parties.
14. Waiver. No waiver of any of the provisions of this Agreement
shall be effective unless in writing and signed by the party to be charged
with such waiver, and such waiver shall be strictly limited to the terms of
such writing.
15. Binding Effect. Except as otherwise provided in Section 4 hereof,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, and their heirs, devisees, executors, administrators, legal
representatives, successors, and assigns.
16. Law. This Agreement shall be governed by the laws of the State
of Georgia. The parties hereby consent to the jurisdiction of the State of
Georgia as a forum for litigating any disputes arising hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OPTIONEE USCI, INC.
/s/ Xxxxxx X. Xxxxxxxxxx By: /s/ [authorized officer]
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), entered into
as of the 30th day of October, 1997, between USCI, Inc., a Delaware
corporation, located at 0000-X Xxxxx Xxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000
(the "Corporation") and Xxxxx Xxxxxxx ("Optionee").
WHEREAS, the Corporation has entered into an agreement of even date
herewith with PaineWebber Inc. (PWI"), pursuant to which PWI has agreed to
provide certain Letter of Credit financing for the account of the
Corporation's wholly-owned subsidiary, Ameritel Communications, Inc., and the
Corporation has agreed to deposit up to 674,107 shares of the Corporation's
Common Stock as collateral (the "Collateral Shares") for the issuance of such
Letters of Credit, and
WHEREAS, the Optionee and certain other stockholders of the Corporation
have agreed to provide the Corporation with the Collateral Shares pursuant to
the terms and conditions of that certain agreement dated of even date herewith
by and among such parties, and
WHEREAS, in consideration for the Optionee depositing 42,639 Collateral
Shares, the Board of Directors of the Corporation has determined to grant a
nonqualified stock option to the Optionee to purchase 4,264 shares of the
Corporation's Common Stock, par value $.0001 per share (the "Common Stock"),
upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Grant of Option. The Corporation hereby grants to the Optionee
a nonqualified stock option (the "Option") to purchase 4,264 shares of Common
Stock (the "Shares") at a price of $6.00 per Share. Unless otherwise provided
herein, this Option shall become exercisable in full commencing on the date
hereof. The Corporation shall have authority in its discretion to prescribe
in that this option may be exercised in different installments during the term
of the option. An option may be exercised at any time or from time to time
during the term of the option as to any or all full shares which have become
purchasable under the provisions of the option, but not at any time as to less
than 25 shares unless the remaining shares which have become so purchasable
are less than 25 shares. The purchase price of the shares shall be paid in
full upon the exercise of the option, and the Company shall not be required
to deliver certificates for such shares until such payment has been made.
2. Method of Exercise. The Optionee shall exercise the Option,
whether in whole or in part, by written notice (the "Notice of Exercise")
directed to the Secretary of the Corporation, specifying the number of Shares
to be purchased and the purchase price being paid. The Notice of Exercise
shall be accompanied by a certified or bank check payable to the order of the
Corporation in payment of the purchase price for the number of Shares
specified therein. Subject to section 7(a) herein, upon the Corporation's
receipt of the Notice of Exercise and payment of the purchase price of the
Shares covered thereby, the Corporation shall cause a certificate representing
such Shares to be issued to the Optionee.
3. Termination of Option.
(a) Except as otherwise provided herein, the Option shall
terminate immediately upon any of the following events, whichever occurs
first:
(i) The date, if any, set by the Board of Directors as an
accelerated expiration date in the event of the liquidation or dissolution of
the Corporation; or
(ii) The expiration of the five-year term of the Option on
the fifth anniversary of the date of this Agreement.
4. Right to Exercise. During the Optionee's lifetime the Option is
exercisable only by the Optionee, and is not assignable or transferable by the
Optionee, whether voluntarily, by operation of law, or otherwise, and no other
person or entity shall acquire any rights thereof. In the event of the
termination of the Optionee's service to the Corporation due to the Optionee's
death or Disability, the Option may be exercised to the extent exercisable on
the date of such termination, in accordance with Section 1 hereof, by the
Optionee or, if applicable, the Optionee's estate, duly appointed executor,
Administrator, or legal representative, or by or on behalf of such person or
persons to whom the Optionee's rights under the Option pass by will or by the
laws of descent and distribution.
5. Certain Changes. The number, kind, and purchase price of the
Shares shall be proportionately adjusted by the Board of Directors of the
Corporation for any increase, decrease, or change in the outstanding Common
Stock by reason of a stock dividend, recapitalization, merger consolidation,
split-up, combination, exchange of shares, or similar transaction (but not by
reason of the issuance or purchase of Common Stock by the Corporation in
consideration for money, services, or property).
6. Limitations of Exercise. If, at any time, the Board of Directors
determines, in its discretion, that the listing, registration or qualification
of the Shares upon any securities exchange, or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary
or desirable as a condition of, or in connection with, the issuance or
purchase thereof, the Option may not be exercised unless and until, such
listing, registration, qualification, consent, or approval shall have been
effected or obtained and is free, of any conditions, which the Board of
Directors, in its sole discretion, deems unacceptable.
7. Conditions of Exercise. Unless the Shares are covered by a then
current and effective registration statement or qualified Offering Statement
under Regulation A under the securities Act of 1933, as amended (the "Act")),
any exercise of this Option by the Optionee shall be deemed to be an
acknowledgement, representation and agreement by the Optionee that (i) such
Shares are being purchased for investment and are being acquired by the
Optionee for investment only and not with a view to distribute or resale
(other than a distribution or resale which, in the opinion of counsel
satisfactory to the Company, may be made without violating the registration
provisions of the Act), (ii) the Optionee has ben advised and understands that
(1) the Shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (2) the Company is under no obligation to
register the Shares under the Act or to take any action which would make
available to the Optionee any exemption from such registration, (iii) such
shares may not be transferred without compliance with all applicable federal
and state securities laws, and (iv) an appropriate legend referring to the
foregoing restrictions on transfer and any other restrictions imposed herein
may be endorsed on the certificates. Notwithstanding the foregoing, if the
Company determines that issuance of the Shares should be delayed pending (A)
registration under federal or state securities laws, (B) the receipt of an
opinion of counsel satisfactory to the Company that an appropriate exemption
from such registration is available (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may
defer exercise of this Option until any of the events described in this
sentence has occurred.
8. Construction of Agreement. This Option is not subject to any of
the Corporation's stock option plans. The Board of Directors of the
Corporation is vested with conclusive authority to interpret and construe this
Option.
9. Status of Optionee.
(a) Nothing in this Agreement shall confer upon the Optionee any right
to continue in the employ of the Corporation, or, if applicable, any parent
or subsidiary thereof, or, if applicable, a Section 425(a) Company, or shall
interfere in any way with the right of such entities to terminate the
Optionee's relationship with the Corporation at any time without their
incurring any liability therefor.
(b) The Optionee shall have no rights as a stockholder of the
Corporation with respect to the Shares until their issuance in accordance with
Section 2 hereof.
10. Reservation of Shares. The Board of Directors of the Corporation
shall be under no obligation to reserve shares of Common Stock to fill the
Option. Neither the Option, nor any reservation of Common Stock thereunder,
shall constitute the establishment of a trust, and no particular shares of
Common Stock shall be identified as being optioned or reserved for the
Optionee.
11. Notices. All notices permitted or required hereunder shall be in
writing and shall be sent by certified mail, return receipt requested, postage
prepaid, to the respective addresses of the parties set forth above, or to
such other address as the party to receive the notice designates by notice to
the other party. Any such notice shall be deemed effective on delivery.
12. Entire Agreement. This Agreement is the entire agreement, and
supersedes and terminates all prior agreements between the parties with
respect to the subject matter contained herein.
13. Amendment or Termination. Except as otherwise provided herein,
this Agreement may be modified, amended, or terminated only by written
instrument executed by both parties.
14. Waiver. No waiver of any of the provisions of this Agreement
shall be effective unless in writing and signed by the party to be charged
with such waiver, and such waiver shall be strictly limited to the terms of
such writing.
15. Binding Effect. Except as otherwise provided in Section 4 hereof,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, and their heirs, devisees, executors, administrators, legal
representatives, successors, and assigns.
16. Law. This Agreement shall be governed by the laws of the State
of Georgia. The parties hereby consent to the jurisdiction of the State of
Georgia as a forum for litigating any disputes arising hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
OPTIONEE USCI, INC.
/s/ Xxxxx Xxxxxxx By: /s/ [authorized officer]
