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 26th day of February, 2000, between TELECOM WIRELESS
CORPORATION, a Utah corporation (the "Company"), and XXXX XXXX ("the Optionee"),
residing at 0 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
The Company hereby grants an option (the "Option") for the purchase of
750,000 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 $6.99 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 26th day of
February, 2005.
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.
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.
2
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
-------------------------------------------
Xxxxxx X. Xxxxxx, President and CEO
---------------------------------------------
Optionee: XXXX XXXX
3
