EXHIBIT 10.5
COMPLETEL EUROPE N.V.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT made as of this 17th day of May 2002, between
CompleTel Europe N.V., a Netherlands corporation (the "Company"), and Xxxx
Xxxxxxx (the "Option Holder").
RECITALS
A. The Executive, the Company and Cabletel Management, Inc. are a
party to a Resignation Agreement dated as of the date first written above.
B. In consideration of the potential "Success" bonus the Executive
willl forego, the Company has determined that it is in the best interests
of the Company to grant the Option Holder an option to purchase ordinary
shares of the Company on the terms and conditions set forth below.
NON-QUALIFIED STOCK OPTION
1. Grant of Option. Subject to the terms and conditions of this
Agreement, the Company hereby grants to the Option Holder an option (the
"Option") to purchase an aggregate of 3,666,666 ordinary shares ((euro).10
nominal value) of the Company (the "Stock") at an exercise price per share
determined as described in paragraph 2 (the "Option Price"). The Option is
granted under the CompleTel 2000 Stock Option Plan, as amended (the
"Plan"), and shall be governed by the terms of the Plan to the extent not
provided otherwise in this Agreement. If there is any inconsistency between
the terms of this Agreement and the Plan, the terms of this Agreement shall
control.
2. Requirements for Exercise; Vesting.
(a) In General. Except as otherwise provided herein, the Option
shall be granted and become vested and be exercisable as provided in this
Section 2.
(b) Grant. On May 17, 2002, the Company shall grant to Option
Holder an Option to acquire an aggregate of 3,666,666 shares of Stock. The
number of shares of Stock shall not be adjusted for any subsequent stock
issuances or dilutive event except as provided in Section 4.
(c) Price. The price per share shall be(euro)0.03.
(d) Vesting. The Option will become fully vested on the first
anniversary of the date upon which the Company has obtained sufficient cash
resources to fully fund its business plan to cash flow breakeven (a
"Success").
(e) Vesting is Cumulative. Except as set forth in Section 5
hereof, the Option shall not be exercisable as to any shares of Stock as to
which the vesting requirements of this Section 2 shall not be satisfied,
regardless of (i) the circumstances under which the Option Holder's
employment by the Company shall be terminated or (ii) the occurrence of any
event or any Change in Control of the Company. Once the Option shall become
vested and exercisable it shall continue to be vested and exercisable as to
such shares until expiration or termination of the Option as provided in
Section 5 hereof. If at any time the number of shares of Stock that are
covered by the vested and exercisable portion of the Option includes a
fractional share, the number of Stock as to which the Option shall be
actually vested and exercisable shall be rounded down to the next whole
share of Stock.
3. Method for Exercising the Option. The Option may be exercised
only by delivery of written notice of exercise, together with payment of
the Option Price as provided below, in person or through certified or
registered mail, fax or overnight delivery to the Company at the following
address: CompleTel Europe N.V., Attention: Chief Financial Officer, Tour
Egee, 0-00, xxxxx xx X'Xxxxx; 00000 Xxxxxxxxxx, Xxxxx, Xxxxxx, or such
other address as shall be furnished in writing to the Option Holder by the
Company. Such written notice shall specify that the Option is being
exercised, and the number of shares of Stock with respect to which the
Option is exercised, and shall be accompanied by payment of the Option
Price.
The Company may require the Option Holder, as a condition of
exercise of this Option, to give written assurance in substance and form
satisfactory to the Company and its counsel to the effect that the Option
Holder is acquiring the Stock for his own account for investment and not
with any present intention of selling or otherwise distributing the same,
and to such other effects as the Company deems necessary or appropriate in
order to comply with applicable securities laws. Legends evidencing such
restrictions may be placed on the Stock certificates.
The issuance or transfer of such Stock shall take place at the
address of the Company set forth above upon delivery of the notice of
exercise, at which time the Option Price for the Stock shall be paid in
full in lawful currency (i) by certified or cashier's check payable to the
Company's order, or (ii) by wire transfer to such account as may be
specified by the Company for this purpose, or (iii) at the election of the
Employee and subject to acceptance of the Company, by selling and
transferring to the Company a number of shares of Stock then owned by the
Option Holder the Fair Market value of which equals the Option Price of the
Stock to be purchased pursuant to the Option; provided, however, that no
Option may be exercised by sale to the Company of such Stock, unless such
Stock has been held by the Option Holder for more than six (6) months and
provided the Company is able by applicable Dutch law to purchase such
Stock. For purposes of this Option, the fair Market Value of any shares of
Stock delivered pursuant to (iii) hereof shall be the Fair Market Value as
of the exercise date; the exercise date shall be the day of delivery of the
certificates for the Stock used pursuant to (iii) hereof.
Upon such notice to the Company and payment of the Option Price,
the exercise of the Option shall be deemed to be effective, and a properly
executed certificate or certificates representing the Stock so purchased
shall be issued by the Company and delivered to the Option Holder;
provided, however, that the Company shall be under no obligation to issue a
certificate or certificates representing the Stock so purchased until the
Option Holder has made arrangements satisfactory to the Company for the
payment of any withholding or other taxes that arise or become payable as a
result of the exercise of the Option.
For purposes of this Agreement, Fair Market Value shall mean the
average of the closing prices of the Stock on the Premier Marche of the
Paris Bourse SBF SA for the thirty (30) consecutive trading days prior to
the date on which fair market value is determined, or if the Stock is not
traded, as the determined pursuant to the Plan.
4. Adjustment of the Option. The number of shares subject to the
Option and the Option Price shall be adjusted according to Section 4.2 of
the Plan, as such Section is modified by Appendix C to the Plan.
5. Expiration of the Option. The Option shall expire and terminate on
the May 17, 2007.
6. Transferability.
(a) In General. The Option may not be transferred except by will
or pursuant to the laws of descent and distribution or pursuant to
subsection 6(b) below, and it shall be exercisable during the Option
Holder's life only by him, or in the event of his disability or incapacity,
by his guardian or legal representative, and after his death, only by those
entitled to do so under his will or the applicable laws of descent and
distribution. Except as specifically provided herein, upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the Option or
any right or privilege granted hereunder, or upon the levy of any
attachment or similar process upon the rights and privileges herein
conferred, the Option and the rights and privileges hereunder shall become
immediately null and void.
(b) Transfer to Certain Family Members. The Option Holder may
transfer the Option to a member of the Option Holder's immediate family, a
trust of which members of the Option Holder's immediate family are the only
beneficiaries, or a partnership of which members of the Option Holder's
immediate family or trusts for the sole benefit of the Option Holder's
immediate family are the only partners (the "InterVivos Transferee").
Immediate family means the Option Holder's spouse, issue (by birth or
adoption), parents, grandparents, siblings (including half brothers and
sisters and adopted siblings) and nieces and nephews. No transfer shall be
effective unless the Option Holder shall have notified the Company of the
transfer in writing and has furnished a copy of the documents that effect
the transfer to the Company. The InterVivos Transferee shall be subject to
all of the terms of this Agreement, including, but not limited to, the
vesting schedule, termination provisions, and the manner in which the
Option may be exercised; provided, however, that the InterVivos Transferee
may not pay the Option Price by selling shares to the Company as described
in subsection 3(iii). The Company may require the Option Holder and the
InterVivos Transferee to enter into an appropriate agreement with the
Company providing for, among other things, the satisfaction of required tax
withholding with respect to the exercise of the transferred Option and the
satisfaction of any Stock retention requirements applicable to the Option
Holder, together with such other terms and conditions as may be specified
by the Company. Except to the extent provided otherwise in this Agreement,
the InterVivos Transferee shall have all of the rights and obligations of
the Option Holder under this Agreement and the Plan.
7. Limitation of Rights. The Option Holder, an InterVivos Transferee,
or his successor shall have no rights as a stockholder with respect to the
shares of Stock covered by this Option until the Option Holder, an
InterVivos Transferee or his successors become the holder of record of such
shares.
8. Stock Reserve. The Company shall at all times during the term of
this Agreement reserve and keep available such number of shares of Stock as
will be sufficient to satisfy the requirements of this Agreement, and the
Company shall pay all original issue taxes (if any) on the exercise of the
Option, and all other fees and expenses necessarily incurred by the Company
in connection therewith.
9. Withholding. The issuance of Stock pursuant to the exercise of this
Option shall be subject to the requirement that the Option Holder shall
make appropriate arrangements with the Company to provide for the amount of
additional income and other tax withholding applicable to the exercise of
the Option.
10. Miscellaneous.
(a) Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and shall be given by first class
registered or certified mail, postage prepaid, or by personal delivery to
the appropriate party, addressed:
(i) If to the Company, to CompleTel Europe N.V., Tour Egee, 0-00
xxxxx xx X'Xxxxx; 00000 Xxxxxxxxxx, Xxxxx, Xxxxxx, Attn.: Xxxxx Xxxxx
Xxxxxxxx (Telecopier 33 1 72 92 20 01) or at such other address a may
have been furnished to the Option Holder in writing by the Company; or
(ii) If to the Option Holder, at such address as may have been
furnished to the Company by the Option Holder.
Any such notice shall be deemed to have been given as of the second day
after deposit in the United States mails, postage prepaid, properly
addressed as set forth above, in the case of mailed notice, or as of the
date delivered in the case of personal delivery.
(b) Amendment. Except as provided herein, this Agreement may not
be amended or otherwise modified unless evidenced in writing and signed by
the Company and the Option Holder.
(c) Compliance with Securities Laws. This Agreement shall be
subject to the requirement that if at any time counsel to the Company shall
determine that the listing, registration or qualification of the shares of
Stock subject to the Option upon any securities exchange or under any law
of any state or country, or the consent or approval of any governmental or
regulatory body, is necessary as a condition of, or in connection with, the
issuance or acquisition of such shares thereunder, the Option may not be
exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained on
conditions acceptable to the Committee. Nothing herein shall be deemed to
require the Company to apply for or obtain such listing, registration or
qualification.
(d) Construction; Severability. The section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, and
each other provision of this Agreement shall be severable and enforceable
to the extent permitted by law.
(e) Waiver. Any provision contained in this Agreement may be
waived, either generally or in any particular instance, by the Committee
appointed under the Plan, but only to the extent permitted under the Plan.
(f) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Company and the Option Holder and their respective
heirs, executors, administrators, legal representatives, successors and
assigns.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado without
reference to principles of conflict of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPLETEL EUROPE N.V.
By __________________
OPTION HOLDER
_____________________
Xxxx Xxxxxxx
