STOCK OPTION AGREEMENT
EXHIBIT
10.15
This
STOCK OPTION AGREEMENT
(this “Agreement”), dated as
of August 17, 2007 (the “Grant Date”), is
between Xxxxxx X. Xxxxxx (the “Optionee”) and
Advanced Communications Technologies, Inc., a Florida corporation (the “Company”).
WHEREAS, the Optionee is an
employee of the Company; and
WHEREAS, the Company desires
to create an incentive for the Optionee to use his best efforts in the
performance of his duties to and for the benefit of the Company and its
subsidiaries by granting him an option to purchase shares of the Company’s
Common Stock.
NOW, THEREFORE, the Optionee
and the Company hereby agree as follows:
1. Definitions. For all purposes
of this Agreement, the following terms shall have the meanings set forth
below:
“Base EBITDA Targets” means the
Base EBITDA targets for the Company’s 2008, 2009 and 2010 fiscal years set forth
on Schedule
1 hereto;
provided, that if the Company or any of its subsidiaries in any fiscal year
enters into any extraordinary transaction, such as a business acquisition or
disposition, the Board in the exercise of its sole discretion may, at any time
during such fiscal year, adjust upward or downward any such target to take into
account such extraordinary transaction.
“Board” means
the Board of Directors of the Company.
“Cause” has the
meaning specified in the Employment Agreement.
“Code” means
the Internal Revenue Code of 1986, as amended.
“Common Stock” means
the common stock of the Company, no par value.
“Company” has
the meaning specified in the preamble hereto.
“Consolidated Net Income” means, for
any period, the net income (or loss) of the Company and its subsidiaries for
such period on a consolidated basis, after deducting all operating expenses,
provisions for all taxes and reserves (including reserves for deferred income
taxes) and all other proper deductions, all determined in accordance with
generally accepted accounting principles consistently applied, after eliminating
all intercompany items, but excluding from the definition of Consolidated Net
Income any extraordinary gains and/or losses and any gains and/or losses from
the sale or other disposition of assets other than in the ordinary course of
business, all determined in accordance with generally accepted accounting
principles consistently applied.
“EBITDA” means, with
respect to any fiscal year, the sum of the Consolidated Net Income (as defined
in the Employment Agreement) (or loss) of the Company and its subsidiaries for
such fiscal year, calculated in accordance with generally accepted accounting
principles consistently applied but excluding any extraordinary items of income,
plus all
amounts deducted in the computation thereof on account of (a) interest expense
(net of any interest income), (b) income taxes, (c) depreciation and
amortization, (d) charges for stock-based compensation, (e) implementation
expenses for Xxxxxxxx-Xxxxx compliance not to exceed $150,000, (f) expenses
incurred to file a Demand Registration Statement on behalf of Investor
Stockholders, as defined in that certain Registration Rights Agreement dated
August 17, 2007; and (h) H.I.G. Capital L.L.C. management fees accrued or paid
during such fiscal year.
“Employment Agreement” means the
Employment Agreement, dated as of the date hereof, between the Grantee and the
Company.
“Exercise Price” has the
meaning specified in Section 2 hereof.
“Family Trust”: means,
with respect to any individual, any trust created for the benefit of one or more
of such individual’s Related Persons and controlled by such individual or one or
more Related Persons.
“Grant Date” has the
meaning specified in the preamble hereto.
“Good Reason” has the
meaning specified in the Employment Agreement.
“Option” has the
meaning specified in Section 2 hereof.
“Optionee” has the
meaning specified in the preamble hereto.
“Optioned Shares” has
the meaning specified in Section 2 hereof.
“Plan” means the
Company’s 2007 Amended and Restated Stock Plan attached hereto as Exhibit
A.
“Related Persons”: means,
with respect to any individual, such individual’s parents, spouse, children and
grandchildren.
“Termination Date” has
the meaning specified in Section 4(a) hereof.
“Vested Optioned Shares” has the
meaning specified in Section 5 below.
2. Grant of
Option.
(a) Subject
to the terms and conditions set forth herein and pursuant to the Plan, the
Company grants to the Optionee an option (the “Option”) to purchase
from the Company all or any part of (i) 1,942,793,493 shares of Common Stock
hereof the “Tenured
Optioned Shares”), at a price
of $.00075 per Tenured Optioned Share (the “Exercise Price”) and
(ii) 1,165,676,096 shares of Common Stock (the “Performance Optioned
Shares”, and together with the Tenured Option Shares, the “Optioned Shares”) at
a price per Performance Optioned Share equal to the Exercise Price.
(b) Anything
in this Agreement to the contrary notwithstanding, the Option is subject to and
entirely contingent upon an amendment to the Articles of Incorporation of the
Company (the “Charter
Amendment”) to increase the authorized number of shares of Common Stock
to an amount sufficient for the grant of restricted stock and options in the
maximum number contemplated by the Plan, which Charter Amendment is subject to
the approval of the stockholders of the Company.
3. Character
of Option. This Option is not intended to qualify as an
incentive option under Section 422 of the Code.
4. Duration
of Option. The Option shall terminate in its entirety on the
earliest of (i) the tenth (10th) anniversary of the Grant Date or (ii) such
earlier time as the Option may terminate in accordance with the
Plan.
5. Exercise
of Option.
(a) At
any time after the approval of the Charter Amendment and the effective filing
thereof with the Florida Department of State, and prior to the termination of
the Option pursuant to Section 4 above, the Optionee shall have the right to
exercise the Option for all or a portion of the Optioned Shares which have
become “Vested
Optioned Shares” as of the
date of exercise determined in accordance with this paragraph (a):
(i) Initially,
777,117,397 of the Tenured Optioned Shares shall be considered Vested Optioned
Shares. One twelfth (1/12th) of the remaining 1,165,676,096 Tenured
Optioned Shares shall become “Vested Optioned Shares” upon the expiration of
each three (3) month period after the Grant Date, such that all of the Tenured
Optioned Shares shall be Vested Optioned Shares as of and after the third
anniversary of the Grant Date, if the Option has not terminated prior to such
date.
(ii) Initially,
none of the Performance Optioned Shares shall be considered Vested Optioned
Shares. In the event that a Base EBITDA Target is met or exceeded for
a given fiscal year, one third (1/3rd) of the original number of Performance
Optioned Shares shall become “Vested Optioned Shares” upon the completion of the
Company’s audited financial statements for such year demonstrating that such
Base EBITDA Target has been met or exceeded for such year. In the
event that a Base EBITDA Target is not met for either the 2008 or the 2009
fiscal year, such one third (1/3rd) of the original number of Performance
Optioned Shares shall not become Vested Optioned
Shares unless and until the Company meets the Base EBITDA Target for the
following fiscal year.
(iii) Upon
the occurrence of any Change of Control (as defined in the Plan) or any
termination by the Company of the Optionee’s employment with the Company without
Cause (as defined in the Plan) or by the Executive for Good Reason, all of the
Tenured Optioned Shares that are not then vested shall become Vested Optioned
Shares.
(iv) Notwithstanding
the foregoing, in no event shall any Optioned Shares which have not already
become Vested Optioned Shares become Vested Optioned Shares after the
termination of the Optionee’s employment with the Company for any
reason.
(b) Subject
to Section 4 hereof, exercise of the Option may be effected in the manner
specified in Section 6 of the Plan.
6. Transfer
of Option. During the Grantee’s lifetime, the Option may be
exercised only by the Grantee. Except for a transfer of the Option to
the Grantee’s Related Persons or Family Trust by will or operation of law after
the Grantee’s death, the Option and all rights granted hereunder may not be
transferred, assigned, pledged, or hypothecated (whether by operation of law or
otherwise) and shall not be subject to execution, attachment, or similar
process. Any transfer of the Option in violation of this Section 6
shall be void and will result in the immediate termination of the
Option.
7. Incorporation
of Plan Terms. This Option is granted subject to all of the
applicable terms and provisions of the Plan.
8. Limitation
of Rights in Optioned Shares. The Optionee shall not be deemed
for any purpose to be a stockholder of the Company with respect to any of the
Optioned Shares except to the extent that the Option shall have been exercised
with respect thereto and, in addition, a stock certificate therefor shall have
been delivered to the Optionee.
9. Communication. All
notices, demands and other communications hereunder shall be in writing or by
written telecommunication, and shall be deemed to have been duly given if
delivered personally or if mailed by certified mail, return receipt requested,
postage prepaid, or if sent by overnight courier, or sent by written
telecommunication, as follows:
(a) if
to an Optionee, at such address set forth after Optionee’s name on the signature
page hereto; and
(b) if
to the Company, at:
Advanced
Communications Technologies, Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
000.000.0000
Attention:
CEO
Any such
notice shall be effective (i) if delivered personally, when received, (ii) if
sent by overnight courier, when receipted for, (iii) if mailed, five (5) days
after being mailed as described above and (iv) if sent by written
telecommunication, when dispatched.
10. Governing
Law. This Agreement and the obligations of the parties
hereunder shall be deemed to be a contract under seal and shall for all purposes
be governed by and construed in accordance with the internal laws of the State
of New York without reference to principles of conflicts of law.
11. Successors
and Assigns. This Agreement shall be binding upon any
successor or assign of either the Company or the Optionee, and upon any
executor, administrator, trustee, guardian, or other legal representative of the
Optionee.
{Remainder
of Page Intentionally Left Blank.}
IN WITNESS WHEREOF, the
parties have executed this Stock Option Agreement as of the date and year first
above written.
THE
COMPANY:
ADVANCED
COMMUNICATIONS
TECHNOLOGIES,
INC.
By:
Title:
THE
OPTIONEE:
/s/ Xxxxxx X.
Xxxxxx
Name:
Address:
Schedule
1
Base
EBITDA Targets
|
Fiscal Year
|
EBITDA Target
|
|||
|
2008
|
$ | 6,500,000 | ||
|
2009
|
$ | 7,600,000 | ||
|
2010
|
$ | 9,500,000 | ||
Exhibit
A
Amended
2007 Stock Plan
