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EXHIBIT 10.1
XXXXXXX COMMUNICATIONS CORPORATION
SECOND AMENDED AND RESTATED
STOCK OPTION AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCK OPTION AGREEMENT, effective as
of June 30, 1998, is between XXXXXX X. XXXXXXX ("Optionee") and XXXXXXX
COMMUNICATIONS CORPORATION (the "Corporation").
RECITALS
A. The Company and Optionee desire to enter into this
Agreement to amend and restate the terms and conditions of the options
previously granted to Optionee on April 4, 1997 (the "Original Grant Date"), as
first amended and restated on April 3, 1998.
B. All capitalized terms in this Agreement shall have the
meaning assigned to them in the attached Appendix.
AGREEMENTS
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. The Corporation hereby grants to
Optionee, on the terms and subject to the conditions provided in this Agreement,
a Non-Statutory Option to purchase all or any part of up to 400,000 shares of
the Corporation's Common Stock. The Option Shares shall be purchasable from time
to time during the option term specified in Paragraph 2 at the Exercise Price.
2. Option Term. This option shall have a term of ten (10)
years measured from the Original Grant Date and shall accordingly expire at the
close of business on the Expiration Date, unless sooner terminated in accordance
with Paragraph 5 or 6.
3. Limited Transferability. This option shall be neither
transferable nor assignable by Optionee other than by will or by the laws of
descent and distribution following Optionee's death and may be exercised, during
Optionee's lifetime, only by Optionee or in accordance with the terms of a
Qualified Domestic Relations Order. The assigned portion shall be exercisable
only by the person or persons who acquire a proprietary interest in the option
pursuant to such Qualified Domestic Relations Order. The terms applicable to the
assigned portion shall be the same as those in effect for this option
immediately prior to such assignment and shall be set forth in such documents
issued to the assignee as the Plan Administrator may deem appropriate.
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4. Exercisability/Vesting.
(a) The percentage of Option Shares that are available
for purchase upon exercise of the option granted hereby shall be in accordance
with the Vesting Schedule attached as Exhibit A. Such option shall remain so
exercisable until the Expiration Date or sooner termination of the option term
under Paragraphs 5 or 6. Any option for unvested Option Shares shall lapse and
be forfeited upon Optionee's cessation of Service prior to vesting of those
Option Shares.
(b) Optionee shall, in accordance with the Vesting
Schedule, vest in the Option Shares in installments over his period of Service.
Vesting in the Option Shares may be accelerated pursuant to the provisions of
Paragraph 6. In no event, however, shall any additional Option Shares vest
following Optionee's cessation of Service.
5. Cessation of Service. The option term specified in
Paragraph 2 shall terminate (and this option shall cease to be outstanding)
prior to the Expiration Date should any of the following provisions become
applicable:
(i) Should Optionee cease to remain in Service for any
reason (other than death or because of a termination for Cause) while this
option is outstanding, then, to the extent Optionee would have been entitled to
exercise this option immediately prior to cessation of Service, Optionee shall
have a period of three (3) months (commencing with the date of such cessation of
Service) during which to exercise the option for Option Shares vested as of the
cessation of Service, but in no event shall this option be exercisable at any
time after the Expiration Date.
(ii) Should Optionee die while this option is
outstanding, then the personal representative of Optionee's estate or the person
or persons to whom the option is transferred pursuant to Optionee's will or in
accordance with the laws of descent and distribution shall have the right to
exercise this option. Such right shall lapse and this option shall cease to be
outstanding upon the earlier of (A) the expiration of the twelve (12)-month
period measured from the date of Optionee's death or (B) the Expiration Date.
(iii) Should Optionee's Service be terminated for Cause,
then this option (including all vested and unvested portions) shall terminate
immediately and cease to remain outstanding.
(iv) During the limited post-Service exercise period,
this option may not be exercised in the aggregate for more than the number of
Option Shares in which Optionee is, at the time of Optionee's cessation of
Service, vested in accordance with the Vesting Schedule. Upon the expiration of
such limited exercise period or (if earlier) upon the Expiration Date, this
option shall terminate and cease to be outstanding for any vested Option Shares
for which the option has not been exercised. To the extent
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Optionee is not vested in the Option Shares at the time of Optionee's cessation
of Service, this option shall immediately terminate and cease to be outstanding
with respect to those shares.
(v) In the event of a Corporate Transaction, the
provisions of Paragraph 6 shall govern the period for which this option is to
remain exercisable following Optionee's cessation of Service and shall supersede
any provisions to the contrary in this paragraph.
6. Special Termination of Option.
(a) All the Option Shares subject to this option at
the time of a Corporate Transaction, but not otherwise vested, shall
automatically vest so that this option shall, immediately prior to the effective
date of the Corporate Transaction, become exercisable for all of the Option
Shares and may be exercised for any or all of the Option Shares.
(b) Immediately following the Corporate Transaction,
this option shall terminate and cease
to be outstanding.
(c) This Agreement shall not in any way affect the
right of the Corporation to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
7. Adjustment in Option Shares. Should any change be made
to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Common Stock as a class without the Corporation's
receipt of consideration, appropriate adjustments shall be made to (i) the total
number and/or class of securities subject to this option and (ii) the Exercise
Price in order to reflect such change and thereby preclude a dilution or
enlargement of benefits hereunder.
8. Stockholder Rights. The holder of this option shall not
have any stockholder rights with respect to the Option Shares until such person
shall have exercised the option, paid the Exercise Price and become a holder of
record of the purchased shares.
9. Manner of Exercising Option.
(a) In order to exercise this option with respect to
all or any part of the Option Shares for which this option is at the time
exercisable, Optionee (or any other person or persons exercising the option)
must take the following actions:
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(i) Pay the aggregate Exercise Price for the purchased
shares in cash or check made payable to the Corporation.
(ii) Furnish to the Corporation appropriate
documentation that the person or persons exercising the option (if other than
Optionee) have the right to exercise this option.
(iii) Execute and deliver to the Corporation such
written representations as may be requested by the Corporation in order for it
to comply with the applicable requirements of federal and state securities laws.
(iv) Make appropriate arrangements with the Corporation
for the satisfaction of all federal, state and local income and employment tax
withholding requirements applicable to the option exercise.
(v) Execute such other agreements as the Corporation
may reasonably deem appropriate.
(b) As soon as practical after the Exercise Date, the
Corporation shall issue to or on behalf of Optionee (or any other person or
persons exercising this option) a certificate for the purchased Option Shares,
with the appropriate legends affixed thereto.
(c) In no event may this option be exercised for any
fractional shares.
10. Compliance with Laws and Regulations.
(a) The exercise of this option and the issuance of
the Option Shares upon such exercise shall be subject to compliance by the
Corporation and Optionee with all applicable requirements of law relating
thereto and with all applicable regulations of any stock exchange (or the Nasdaq
National Market or Small Cap Market, if applicable) on which the Common Stock
may be listed for trading at the time of such exercise and issuance.
(b) The inability of the Corporation to obtain
approval from any regulatory body having authority deemed by the Corporation to
be necessary to the lawful issuance and sale of any Common Stock pursuant to
this option shall relieve the Corporation of any liability with respect to the
non-issuance or sale of the Common Stock, as to which such approval shall not
have been obtained. The Corporation, however, shall use its best efforts to
obtain all such approvals.
11. Successors and Assigns. Except to the extent otherwise
provided in Paragraphs 3 and 6, the provisions of this Agreement shall inure to
the benefit of, and
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be binding upon, the Corporation and its successors and assigns and Optionee,
Optionee's assigns and the legal representatives, heirs and legatees of
Optionee's estate.
12. Notices. Any notice required to be given or delivered to
the Corporation under the terms of this Agreement shall be in writing and
addressed to the Corporation at its principal corporate offices. Any notice
required to be given or delivered to Optionee shall be in writing and addressed
to Optionee at the address indicated below Optionee's signature line below. All
notices shall be deemed effective upon personal delivery or upon deposit in the
U.S. mail, postage prepaid and properly addressed to the party to be notified.
13. Construction. This Agreement and the option evidenced
hereby are made and granted pursuant to the Plan and are in all respects limited
by and subject to the terms of the Plan. All decisions of the Plan Administrator
with respect to any question or issue arising under the Plan or this Agreement
shall be conclusive and binding on all persons having an interest in this
option.
XXXXXXX COMMUNICATIONS CORPORATION
BY /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, Chairman
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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APPENDIX
The following definitions shall be in effect under the Agreement:
A. Agreement shall mean this Stock Option Agreement.
B. Board shall mean the Corporation's Board of Directors.
C. Cause shall be determined by the Board and shall mean fraud,
dishonesty, acts of negligence in the course of employment with the Corporation,
misrepresentation to the shareholders or directors of the Corporation,
commission of a felony or a failure, other than by reason of death or
disability, to follow and/or perform a specific directive of the Board. The
foregoing definition shall not be deemed to be inclusive of all the acts or
omissions which the Corporation (or any Parent or Subsidiary) may consider as
grounds for the dismissal or discharge of Optionee or any other individual in
the Service of the Corporation (or any Parent or Subsidiary).
D. Code shall mean the Internal Revenue Code of 1986, as amended.
E. Common Stock shall mean the Corporation's common stock.
F. Corporate Transaction shall mean (i) either of the following
stockholder-approved transactions to which the Corporation is a party:
(a) a merger or consolidation in which securities possessing
more than fifty percent (50%) of the total combined voting power of the
Corporation's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to such
transaction, or
(b) the sale, transfer or other disposition of all or
substantially all of the Corporation's assets, and
(c) the sale of outstanding securities possessing more than
50% of the total combined voting power of the Corporation to a person or persons
different than the persons (or any combination thereof) holding those securities
immediately prior to such transaction.
G. Corporation shall mean Xxxxxxx Communications Corporation.
H. Domestic Relations Order shall mean any judgment, decree or order
(including approval of a property settlement agreement) which provides or
otherwise conveys, pursuant to applicable state domestic relations laws
(including community property laws), marital property rights to any spouse or
former spouse of the Optionee.
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I. Exercise Date shall mean the date on which the option shall have
been exercised in accordance with Paragraph 9 of the Agreement.
J. Exercise Price shall, except as otherwise indicated on Exhibit A,
mean $2.25 per share, the Fair Market Value of the Common Stock on April 3,
1998.
K. Expiration Date shall mean April 4, 2007.
L. Fair Market Value per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question, as the price is reported by
the National Association of Securities Dealers on the Nasdaq National Market or
any successor system. If there is no closing selling price for the Common Stock
on the date in question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question on the Stock Exchange determined
by the Plan Administrator to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price for the Common Stock on the date
in question, then the Fair Market Value shall be the closing selling price on
the last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time neither listed on any
Stock Exchange nor traded on the Nasdaq National Market, then the Fair Market
Value shall be determined by the Plan Administrator after taking into account
such factors as the Plan Administrator shall deem appropriate.
M. 1934 Act shall mean the Securities Exchange Act of 1934, as
amended.
N. Non-Statutory Option shall mean an option not intended to satisfy
the requirements of Code Section 422.
O. Option Shares shall mean the number of shares of Common Stock
subject to the option as specified in Paragraph 1.
P. Optionee shall mean Xxxxxx X. Xxxxxxx.
Q. Original Grant Date shall mean April 4, 1997.
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R. Plan Administrator shall mean either the Board or the Compensation
Committee of the Board.
S. Qualified Domestic Relations Order shall mean a Domestic Relations
Order which substantially complies with the requirements of Code Section 414(p).
The Plan Administrator shall have the sole discretion to determine whether a
Domestic Relations Order is a Qualified Domestic Relations Order.
T. Service shall mean Optionee's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an employee.
U. Stock Exchange shall mean the American Stock Exchange or the New
York Stock Exchange.
V. Vesting Schedule shall mean the vesting schedule attached as
Exhibit A, as such vesting schedule is subject to acceleration in the event of a
Corporate Transaction.
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EXHIBIT A
Vesting Schedule
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The percentage of Option Shares that are available for purchase upon
exercise of the option granted hereby shall be as follows:
- 75,000 shares vest on April 4, 1997.
- 50,000 shares vest on April 4, 1998.
- 50,000 shares vest on April 4, 1999.
- 75,000 shares vest upon achievement by the Corporation of
quarterly operating revenue, operating income and pre-tax earnings
(loss) targets set forth in a budget that has been approved by the
Board prior to the beginning of such quarter.
- 75,000 shares vest upon the completion of the Corporation's first
profitable fiscal quarter, excluding, for the purposes of such
calculation, extraordinary income and gains. THE EXERCISE PRICE
FOR THE PORTION OF THE OPTION RELATING TO THESE 75,000 SHARES
SHALL BE $2.9375 PER SHARE, THE FAIR MARKET VALUE OF THE COMMON
STOCK ON THE DATE SUCH OPTION SHARES VESTED.
- 75,000 shares vest on December 31, 1998. THE EXERCISE PRICE FOR
THE PORTION OF THE OPTION RELATING TO THESE 75,000 SHARES SHALL BE
$3.50 PER SHARE.
