SECURITIES ISSUED UPON EXERCISE OF THIS OPTION HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 ("THE ACT"), AND ARE "RESTRICTED SECURITIES" AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
TELECOM WIRELESS CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, hereinafter referred to as the "Option" or the
"Agreement," made on the ______ day of ________________________, 19_____,
between TELECOM WIRELESS CORPORATION, a Utah corporation (the "Company"), and
_________________________________________________ ("the Optionee"), residing at
__________________________________________________________________________.
The Company hereby grants an option (the "Option") for the purchase of
_________ shares of common stock (the "Option Shares") of the Company, $.001 par
value per share ("Common Stock"), to the Optionee at the price and in all
respects subject to the terms, definitions and provisions of this Agreement. The
Option is NOT granted pursuant to the terms of the TELECOM WIRELESS CORPORATION
1999 Stock Option Plan (the "Plan") and shall not reduce the shares of Common
Stock available for issuance under the Plan.
1. DESIGNATION OF OPTION. The option granted hereby is a
Nonqualified Option which is not intended to qualify as an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code.
2. OPTION EXERCISE PRICE. The option exercise price is $_________
for each share.
3. OPTION PERIOD. The option period during which this Option may be
exercised shall expire at 12:00 o'clock p.m., Denver time, on the _________ day
of _____________________, 20____.
4. EXERCISE OF OPTION.
4.1 STANDARD VESTING. The number of shares optioned shall be
divided as nearly as possible into three (3) equal installments. The first
installment shall accrue and the Option shall be exercisable with respect to the
shares included therein on the date which is one year after the grant of the
Option. Each succeeding installment shall accrue and the Option shall be
exercisable with respect to the shares included therein on each yearly
anniversary date thereafter. An option may be exercised when installments
accrue and at any time thereafter within the option period set forth in
Section 3 above with respect to all or a part of the shares covered by such
accrued installments, subject, however, to further provisions of this Section 4.
4.2 DEFERRED VESTING. Notwithstanding subsection 4.1 herein, in
the event Optionee was a member of the Board of Directors of the Company at the
time the grant of this Option was approved, this Option shall not be exercisable
until the grant of this Option shall have been ratified, confirmed and approved
by the shareholders of the Company in the manner required by law.
4.3 ACCELERATED VESTING. Except as provided to the contrary in
subsection 4.2 herein, all Options shall immediately vest and become exercisable
in full upon a Change in Control, even if all or any portion of the Options
shall not have vested in accordance with subsection 4.1 herein. "Change in
Control" shall mean (i) any transaction or series of transactions in which any
person or group of persons, other than Xx. Xxxxx X. Xxxxxxx, directly or
indirectly (a) becomes the beneficial owner of outstanding securities of the
Company having 30% or more of the power to vote
upon the election of the Company's directors or (b) acquires 50% or more of
the Company's assets, or (ii) the occurrence of any transaction or event in
connection with which all or substantially all of the voting securities of
the Company are exchanged for, converted into, acquired for or constitute
solely the right to receive cash, securities, property or other assets, or
(iii) the conveyance, sale, lease, assignment, transfer or other disposal of
all or substantially all of the Company's property, business or assets
otherwise than in the ordinary course of business.
4.4 RIGHT TO EXERCISE. The Option shall be exercisable only
during the option period by the Optionee while the Optionee is in "continuous
employment with the Company;" provided, however, if the Optionee's employment is
terminated by Optionee for cause or by the Company without cause, the Optionee
shall have a period of three (3) months from the date his employment terminates
in which to exercise the Option to the extent the Option was exercisable at the
time of termination, but in no event later than the expiration of the option
period. If the Optionee should die during this three (3) month period, the
Option may be exercised by the person or persons to whom the rights under the
Option passed by will or the laws of descent and distribution to the same extent
and during the same period the Optionee could have exercised the Option had he
not died. In the event the Optionee should terminate his employment by the
Company without cause or the Company should terminate his employment with cause,
then all unexercised Options granted to Optionee shall be forfeited and canceled
effective upon such termination.
4.4.1 If the Optionee should die or become permanently and
totally disabled while employed by the Company, the Option or unexercised
portion thereof, to the extent exercisable at the time of his death or
disability, may be exercised by Optionee, his conservator or legal guardian or
by the person or persons to whom his rights under the Option passed by will or
the laws of descent and distribution not later than twelve months after the
Optionee's death or not later than twelve months after the Optionee's
disability, but in no event later than the expiration of the option period.
4.4.2 The Option granted shall be void if not exercised
during the option period. Except as otherwise provided, the option period shall
terminate in the event the Optionee ceases to be an Employee of the Company
(including any Subsidiary Corporation) if that date is earlier than the term of
the Option.
4.4.3 For the purposes of the foregoing, "continuous
employment with the Company" shall mean the absence of any interruption or
termination of employment by the Company and/or by a corporation in which the
Company owns capital stock having a majority of the voting power with respect to
the election of directors ("Subsidiary Corporation"). Continuous employment
shall not be considered interrupted in the case of leave of absence approved by
the Company or the Subsidiary Corporation.
4.5 METHOD OF EXERCISE. This Option shall be exercisable by a
written notice which shall:
4.5.1 State the election to exercise the Option, the
number of shares in respect of which it is being exercised (which must be in
multiples of one hundred (100) shares), the person in whose name the stock
certificate or certificates for such shares of Common Stock is to be registered,
his address and Social Security number (or if more than one, the names,
addresses and Social Security numbers of such persons);
4.5.2 Contain such representations and agreement as to the
holder's investment intent with respect to such shares of Common Stock as may be
satisfactory to the Company's counsel;
4.5.3 Be signed by the person or persons entitled to
exercise the Option and, if the Option is being exercised by any person or
persons other than the Optionee, be accompanied by proof, satisfactory to
counsel for the Company, of the right of such person or persons to exercise the
Option.
4.5.4 Payment of the purchase price of any shares with
respect to which the Option is being exercised shall be by cash or certified
check, previously acquired shares having a fair market value equal to the option
price or previously acquired shares having a fair market value less than the
option price, plus cash or certified check, and shall be delivered with the
notice of exercise. The certificate or certificates for shares of Common Stock
as to which the Option shall be exercised shall be registered in the name of the
person or persons exercising the Option.
-2-
4.6 RESTRICTIONS ON EXERCISE. As a condition to his exercise
of this Option, the Company may require the person exercising this Option to
make any representation and warranty to the Company as may be required by any
applicable law or regulation.
5. NONTRANSFERABILITY OF OPTION. This Option may not be transferred
in any manner and may be exercised during the lifetime of the Optionee only by
him and after his death by the person or persons to whom his rights under the
Option passed by will or the laws of descent and distribution.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. Whenever a stock
split, stock dividend or other relevant change in capitalization occurs, the
number of shares that can thereafter be purchased, and the option price per
share, under each Option that has been granted and not exercised, and every
number of shares used in determining whether a particular option is grantable
thereafter, shall be appropriately adjusted.
7. NOTICES. Each notice relating to this Agreement shall be in
writing and delivered in person or by certified mail to the proper address.
Each notice shall be deemed to have been given on the date it is received. Each
notice to the Company shall be addressed to it at its principal office,
attention of the Secretary. Each Optionee or other person or persons then
entitled to exercise the Option shall be addressed to the Optionee or such other
person or persons at the Optionee's address set forth in the heading of this
Agreement. Anyone to whom a notice may be given under this Agreement may
designate a new address by notice to that effect.
8. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit
of and be binding upon each successor of the Company. All obligations imposed
upon the Optionee and all rights granted to the Company under this Agreement
shall be binding upon the Optionee's heirs, legal representatives and
successors. This Agreement shall be the sole and exclusive source of any and
all rights which the Optionee, his heirs, legal representatives, or successors
may have in respect to the Option or Common Stock granted or issued thereunder,
whether to himself or to any other person.
9. RESOLUTION OF DISPUTES. Any dispute or disagreement which should
arise under, or as a result of, or in any way relate to, the interpretation,
construction or applicability of this Agreement will be determined by the Board
of Directors of the Company. Any determination made hereunder shall be final,
binding, and conclusive for all purposes.
IN WITNESS WHEREOF, the Company and the Optionee have caused this
Agreement to be executed as of the day, month and year first above written.
TELECOM WIRELESS CORPORATION
By
----------------------------------
Xxxxx X. Xxxxxxx, CEO
------------------------------------
Optionee
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Schedule to Nonqualified Stock Option Agreement
Identifying Other Nonqualified Stock Option Agreements
to Which Telecom Wireless Is a Party
That Are Substantially Identical And
Material Details in Which Such Agreements
Differ from Filed Agreement
Option
Exercise Issuance Period
Optionee No. of Shares Price Date Expires
-------- ------------- -------- --------- ---------
Xxxx X. Xxxxxxx 200,000 $10.55 4/13/1999 4/13/2004
Xxxxxx X. Xxxxxxxx 500,000 $10.55 4/13/1999 4/13/2004
Xxxxx Xxxxxxx, Xx. 200,000 $10.55 4/13/1999 4/13/2004
Xxxxx Xxxxxxx, Xx. 300,000 $14.42 8/23/1999 8/23/2004
Xxxxx Xxxxxxxx 1,000,000 $10.55 4/13/1999 4/13/2004
Xxxxx Xxxxx 200,000 $10.55 4/13/1999 4/13/2004
Xxxxx Xxxxxxx 200,000 $10.55 4/13/1999 4/13/2004
Xxxxx X. Xxxxxxx 2,000,000 $10.55 4/13/1999 4/13/2004
Xxxxx X. Xxxxxxx 100,000 $10.55 4/13/1999 4/13/2004
Xxxxxx X. Xxxxxx 200,000 $10.55 4/13/1999 4/13/2004
Xxxxxx X. Xxxxxx 300,000 $14.42 8/23/1999 8/23/2004
