SANSWIRE CORP. OPTION AGREEMENT
THE
COMMON STOCK PURCHASE OPTION REPRESENTED BY THE AGREEMENT (THE “OPTION”) AND THE
SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THE OPTION (THE “OPTION
SHARES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), AND THEREFORE, MAY BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF ONLY IN ACCORDANCE WITH THE ACT, INCLUDING THE
REGISTRATION PROVISIONS THEREIN CONTAINED OR PROVIDED AN EXEMPTION FROM
REGISTRATION IS AVAILABLE UNDER THE ACT, AND SUBJECT TO THE OPINION OF COUNSEL
TO SANSWIRE CORP.
This Option Agreement is made on this
27th day of December, 2010 (the “Effective Date”) by and between SANSWIRE CORP.,
a Delaware corporation (the “Optionor” or “Company”), and XXXXXXX X. XXXXX (the
“Holder”).
RECITALS
Holder is the Chairman of the Board of
Directors of the Company (the “Board”). In conjunction with Holder’s
position, the Board of Directors of the Company has authorized granting to
Holder options to purchase the number of shares of common stock, par value $0.00001 per
share, of the Company
(the “Common Stock”) specified in paragraph (1) hereof, at the prices and for
the terms specified herein, pursuant to the terms and conditions stated herein
and in the 2004 Employee Stock Option Plan of Globetel Communications Corp. (the
“Stock Option Plan”).
AGREEMENT
1. Option. Optionor
hereby grants to Holder the option (the “Option”) to purchase from Optionor
1,333,334 shares of Common Stock of the Optionor (the “Shares”), upon the
conditions and terms set forth herein and in the Stock Option
Plan. The parties
understand and agree that the Shares’ transferability is restricted in
accordance with state and federal laws. The Shares pursuant to
this Option shall be immediately and fully vested on the date
hereof.
2. Exercise
Price. The per share exercise price payable for the Shares
(the “Exercise Price”) shall be $0.09 per share.
3. Exercise
of Option. This
Option may be exercised as to the Shares at any time by the Holder by tendering
a copy of this Option Agreement stating the name in which the Shares shall be
registered and amount of Shares to be exercised (the “Exercise Notice”),
together with the cash amount sufficient to exercise the Option, to the
Optionor, or by Cashless Exercise, if applicable, as defined
below. The Option may be exercised in whole or in part at any time
during the option period, which begins on the effective date of this Option
Agreement and terminates on the earlier of (i) three (3) years from the
effective date of this Option Agreement or (ii) 90 days after the termination of
Holder’s membership on the Company’s Board (the “Option
Period”).
4. Cashless
Exercise. In
the event the Market Price (as defined below) of the Company Common Stock is
above the Exercise Price, and in lieu of the payment method set forth in Section
3, above, the Holder may elect to exchange all or some of the Shares for the
Common Stock equal to the value of the amount of the Shares being exchanged on
the date of exchange (the “Cashless Exercise”). If the Holder elects
to take advantage of such Cashless Exercise, the Holder shall tender to the
Company this Option Agreement for the amount being exchanged, along with written
notice of the Holder’s election to exchange some or all of the Shares, and the
Company shall issue to the Holder the number of shares of Common Stock computed
using the following formula:
X =
Y
(A-B)
A
Where: X
= The number of shares of Common Stock to be issued
to the Holder.
Y
= The number of shares of Common Stock
purchasable under the amount of this Option Agreement being exchanged (as
adjusted to the date of such calculation).
A
= The Market Price (as defined below) of one share
of Common Stock.
B
= The Exercise Price (as adjusted to the date
of such calculation).
The
Cashless Exercise shall take place on the date specified in the notice or if the
date the notice is received by the Company is later than the date specified in
the notice, on the date the notice is received by the Company.
The
Market Price of a share of Common Stock as of a particular date (the
"Determination Date") shall mean:
(a) If
the Company's Common Stock is traded on an exchange or is quoted on the NASDAQ
Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market,
then the closing or last sale price, respectively, reported for the last
business day immediately preceding the Determination Date;
(b) If
the Company's Common Stock is not traded on an exchange or on the NASDAQ Global
Select Market, the NASDAQ Global Market or the NASDAQ Capital Market, but is
traded in the over-the-counter market, then the average of the closing bid and
ask prices reported for the last business day immediately preceding the
Determination Date; and
(c) If
the Company's Common Stock is not publicly traded, then as determined in good
faith by the Board of Directors of the Company.
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As soon
as practicable after full or partial exercise of the Shares, the Company at its
expense (including, without limitation, the payment by it of all taxes and
governmental charges applicable to such exercise and issuance of the Shares)
shall cause to be issued in the name of and delivered to the Holder or such
other persons as directed by the Holder, a certificate or certificates for the
total number of Shares being exercised in such denominations as instructed by
the Holder, together with any other securities and property to which the Holder
is entitled upon exercise under the terms of this Option Agreement. The Option
shall be deemed to have been exercised, and the Shares acquired thereby shall be
deemed issued, and the Holder or any person(s) designated by the Holder shall be
deemed to have become holders of record of such Shares for all purposes, as of
the close of business on the date that the Option, the duly executed and
completed Exercise Notice, and full payment of the aggregate Exercise Price has
been presented and surrendered to the Company, notwithstanding that the stock
transfer books of the Company may then be closed. In the event this Option is
only partially exercised, a new Option Agreement evidencing the right to acquire
the number of Shares with respect to which this Option Agreement shall not then
have been exercised, shall be executed, issued and delivered by the Company to
the Holder simultaneously with the delivery of the certificates representing the
Shares so purchased.
5. Shares Not
Registered
The
certificates representing the Shares issued upon exercise of the options shall
bear the following legend:
“THE
SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR THE LAWS OF ANY
OTHER JURISDICTION AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN ANY MANNER (1) WITHOUT REGISTRATION UNDER THE ACT AND
IN COMPLIANCE WITH THE LAWS OF ANY APPLICABLE JURISDICTION OR (2) AN OPINION OF
COUNSEL (IN FORM AND SUBSTANCE ACCEPTABLE TO THE COMPANY) THAT REGISTRATION IS
NOT REQUIRED.”
6. Representation, Warranties
and Covenants of the Holder. The Holder represents, warrants
to and covenants with Optionor as follows:
a) The
Holder warrants he has evaluated the merits and risks associated with the
investment in the Company as represented by this option, including review of the
Annual and Quarterly Reports and other reports of the Company that have been
filed from time to time with the Securities and Exchange Commission (“SEC”), and
all other documentation that he deems necessary under the Securities and
Exchange Act of 1934, as amended, and the applicable state securities
laws.
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b) The
Holder further represents that he understands that neither this Option nor the
Shares underlying the option are registered under the Act.
c) The
Holder is sufficiently experienced in financial matters and matters pertaining
to securities to be capable of evaluating the merits and risks associated with
the acceptance of this Option, and has relied upon such experience in so
determining to accept this option in partial consideration for the services
performed by Holder to the Company. The parties agree that this Option is not
the exclusive consideration granted or to be granted to Holder for services
heretofore provided or to be provided by Holder to the Company.
7. Representation, Warranties
and Covenants of the Optionor. The Optionor represents,
warrants to and covenants with Holder as follows:
a) This
Agreement has been duly executed and delivered by such Optionor and constitutes
the valid and binding obligation of such Optionor and such Optionor has the
requisite power and capacity to execute, deliver and perform this Agreement and
to comply with the terms hereof.
b) The
grant of the Option by such Optionor does not, and the sale of the Option Shares
to Holder by such Optionor, upon payment of the Exercise Price thereof, will
not, conflict with or constitute an event of default under or breach of any
agreement, document or instrument to which such Optionor is a
party.
c) The
Option Shares underlying the Option granted by such Optionor hereunder are
currently owned by such Optionor and, upon exercise of the Options by Holder and
payment of the Exercise Price therefore, Holder will acquire such Option Shares
free and clear of all security interests, claims, liens, security or other
interests, encumbrances and charges of any kind whatsoever, other than pursuant
to the federal and state securities laws.
d) Until
the earlier of (i) the exercise of the Option granted by such Optionor or (ii)
the expiration of the Option Period, such Optionor will not sell, transfer,
assign, pledge, alienate or hypothecate any of the Option Shares, or permit such
Option Shares to become subject to any mortgage pledge, lien, security or other
interest, encumbrance or charge of any kind, other than pursuant to the federal
and state securities laws.
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8. Notices. All
notices, requests, demands and other communications which are given pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered by hand, when sent by facsimile (with receipt confirmed), or when
mailed by registered or certified mail (postage prepaid, return receipt
requested), as follows (or to such other address or telex number as either party
hereto may designate to the other party hereto by like notice):
If to the Holder, to:
Xxxxxxx X. Xxxxx
000 Xxxxx 000 Xxxxxx
Xxxxx Xxxxxx, XX 00000
If to the Optionor, to:
Xxxxx Xxxx 000, Xxxxxxxx X0-000X, Xxxx
0000
Xxxxxxx Xxxxx Xxxxxx, XX
00000
Mail Address:
Mail
Code: SWC
Xxxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx
X. Xxxxxxxx,
President
and Chief Executive Officer
9. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Optionor and Holder inure to the benefit of their respective successors and
assigns hereunder.
10. Entire
Agreement. This Agreement constitutes the complete agreement
between the parties and terminates and supersedes all prior and contemporaneous
oral and written agreements. This Agreement may not be altered, amended or
modified except by a writing duly executed by the parties hereto.
11. Severability. In
the event that any term or condition in this Agreement shall for any reason be
held by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other term or condition of this Agreement, but this
Agreement shall be construed as if such invalid or illegal or unenforceable term
or condition had never been contained herein.
12. Non-Waiver. No
waiver, forbearance or failure by any party of its right to enforce any
provision of this Agreement shall constitute a waiver or estoppel of such
party’s right to enforce such provision in the future or such party’s right to
enforce any other provision of this Agreement.
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13. Binding Effect; No Third
Party Beneficiaries. Each term and provision of this Agreement
shall be binding upon and enforceable against and inure to the benefit of the
parties hereto and their respective successors or assigns, nothing in this
Agreement, express or implied, being intended to confer upon any other person
any rights or remedies hereunder.
14. Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed as of the day and year first
above written.
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HOLDER:
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| By: |
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Name:
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Xxxxxxx
X. Xxxxx
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Date:
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December
27, 2010
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OPTIONOR:
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A
DELAWARE CORPORATION
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| By: |
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Name:
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Xxxxx X.
Xxxxxxxx
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Title:
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President
and Chief Executive Officer
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Date:
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December
27, 2010
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