Exhibit 10.5
FIRST AMENDMENT TO THE
TERREMARK WORLDWIDE, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
DATED APRIL 2, 2002
BY AND BETWEEN
TERREMARK WORLDWIDE, INC. AND XXXXX X. XXXXXXXX
THIS FIRST AMENDMENT is made effective as of July 22, 2003, by
TERREMARK WORLDWIDE, INC., a Delaware corporation (the "Corporation") and XXXXX
X. XXXXXXXX ("Optionee").
W I T N E S S E T H:
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WHEREAS, the Corporation and Optionee entered into that certain
Nonqualified Stock Option Agreement, dated April 2, 2002 (the "Option
Agreement") whereby the Corporation granted Optionee an option to purchase
115,000 shares of the common stock of the Corporation, with an option price of
$.51 per share, subject to a vesting schedule (the "Option"), and
WHEREAS, the Option was granted pursuant to the terms, provisions and
conditions of the Corporation's 2000 Stock Option Plan (the "Plan"), and
WHEREAS, pursuant to Section 16 of the Plan, the Corporation reserved
the right to amend said Option Agreement, with the consent of the Optionee; and
WHEREAS, in consideration for past services, the Corporation and
Optionee have mutually agreed to accelerate the vesting of his Options and
extend the term within which Optionee may exercise such Options;
NOW, THEREFORE, effective as of July 22, 2003, the Option Agreement
shall be amended as follows:
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1. Section 3 is hereby deleted in its entirety and replaced with the
following:
"3. EXERCISE SCHEDULE. This Option shall be immediately and fully
exercisable, in whole or in part, effective as of July 22, 2003."
2. Section 4 is hereby amended so that clause 4(b) reads as follows:
"(b) to the extent required by law, arrangements that are reasonably
satisfactory to the Committee have been made for Optionee's payment to
the Company of the amount that is necessary to be withheld in
accordance with applicable Federal or state withholding requirements."
3. Section 5 is hereby amended to add the following at the end thereof:
"In addition, Optionee may exercise this Option pursuant to a "cashless
exercise" procedure, by delivery of a properly executed exercise notice
together with such other documentation, and subject to such guidelines,
as the Board or Committee shall reasonably require to effect an
exercise of the Option, and delivery to the Company by a licensed
broker reasonably acceptable to the Company of proceeds from the sale
of Stock or a margin loan sufficient to pay the exercise price and any
applicable income or employment taxes."
4. Section 6 is hereby deleted in its entirety and replaced with the
following:
"6. TERMINATION OF OPTION. Any unexercised portion of the Option shall
automatically and without notice terminate and become null and void on
April 2, 2012."
5. In all other respects, the Option Agreement shall remain unchanged by
this Amendment.
IN WITNESS WHEREOF, the parties have caused this instrument to be
executed the day and year first above written.
TERREMARK WORLDWIDE, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
OPTIONEE
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
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