Exhibit 4.1
NATIONAL WIRELESS HOLDINGS INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of the 15th day of September,
1994 (the "Date of Grant") between NATIONAL WIRELESS HOLDINGS INC., a Delaware
corporation (herein called the "Corporation"), and Xxxxxxx Xxxxxxx (herein
called the "Optionee").
W I T N E S S E T H:
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WHEREAS, under the terms and conditions hereinafter stated, the
Corporation hereby grants to the Optionee pursuant to the National Wireless
Holdings Inc. 1993 Stock Option Plan (the "Plan") an option (the "Option") to
purchase 50,000 shares of the Corporation's common stock, $.01 par value per
share ("Common Stock") at an exercise price of $8.50 per share, subject to
adjustment as provided in Paragraph 8 hereof.
NOW, THEREFORE, the Corporation and the Optionee agree as follows:
1. TERM. The term of the Option shall commence on September 15, 1994,
and shall terminate at 5:00 P.M., E.S.T., on September 15, 1999.
2. EXERCISE. The Option may be exercised in whole or in part in
accordance with the following schedule: up to 10,000 shares upon and after the
date hereof; up to an additional 10,000 shares upon and after one year from the
date hereof; up to an additional 10,000 shares upon and after two years from the
date hereof; up to an additional 10,000 shares upon and after three years from
the date hereof; and up to the balance of 10,000 shares upon and after four
years from the date hereof. The method for exercise described in this Paragraph
shall be the sole method of such exercise. The Optionee may exercise the Option
by delivery to the Corporation of written notice providing: (i) the name of the
Optionee; (ii) the address to which Common Stock certificates are to be mailed;
(iii) an identification of the Option being exercised by reference to the date
first written above; and (iv) the number of shares of Common Stock subject to
such Option. Such notice shall be accompanied by a certified check payable to
the Corporation in the amount of the product of $8.50 times the number of shares
with respect to which the Option is being exercised, and shall be delivered in
person or shall be sent by registered mail, return receipt requested, to the
President of the Corporation. The Option shall be considered exercised on the
date the notice and payment are delivered to the President of the Corporation or
deposited in the mail, as the case may be. As promptly as practicable after
receipt of such notice and payment, the Corporation shall deliver to the
Optionee a certificate or certificates for the number of shares of Common Stock
with respect to which the Option has been so executed, issued in the Optionee's
name. Such delivery shall be deemed effected for all purposes when a
stock transfer agent of the Corporation shall have deposited such certificate or
certificates in the United States mail, addressed to the Optionee, at the
address specified in the notice.
3. TRANSFERABILITY OF OPTIONS. The Option shall not be transferable by
the Optionee otherwise than by will or under the laws of descent and
distribution. The Option shall be exercisable during the lifetime of the
Optionee only by the Optionee, the Optionee's guardian or the Optionee's legal
representative.
4. TERMINATION OF AFFILIATION. The Option shall terminate ninety (90)
days following the date that the Optionee ceases to be an employee of the
Corporation. In the event of the death of the Optionee, the executors,
administrators or any person or persons to whom the Option may be transferred by
will or by the laws of descent and distribution shall have the right to exercise
the Option only within the period of one year next succeeding the Optionee's
death.
5. REQUIREMENTS OF LAW. The Corporation shall not be required to sell
or issue Common Stock under the Option if the issuance of such Common Stock
would constitute a violation by the Optionee or the Corporation of any
provisions of any state or federal law, rule or regulation. In addition, in
connection with the Securities Act of 1933 (as now in effect or hereafter
amended), upon exercise of the Option, the Corporation shall not be required to
issue such Common Stock unless the Corporation has received evidence
satisfactory to it to the effect that the Optionee will not transfer such shares
except pursuant to a registration statement in effect under such Act, or unless
an opinion of counsel to the Corporation has been received by the Corporation to
the effect that such registration is not required. Any determination in this
connection by the Corporation shall be final, binding and conclusive. In the
event the shares issuable on exercise of the Option are not registered under the
Securities Act of 1933, the Corporation may imprint the following legend or any
other legend which counsel for the Corporation considers necessary or advisable
to comply with the Securities Act of 1933:
"The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933 or under the securities laws of
any state and may not be sold or transferred except upon such registration or
upon receipt by the Corporation of an opinion of counsel satisfactory to the
Corporation, in form and substance satisfactory to the Corporation, that
registration is not required for such sale or transfer."
The Corporation may, but shall in no event be obligated to, register
any securities covered hereby pursuant to the Securities Act of 1933 (as now in
effect or as hereafter amended); and in the event any shares are so registered
the Corporation may remove any legend on certificates representing such shares.
The Corporation shall not be obligated to take any other affirmative action in
order to cause the exercise of the Option or the issuance of shares pursuant
thereto to comply with any state or federal law, rule or regulation.
6. NO RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
stockholder with respect to Common Stock covered by the Option until the date of
issuance to the Optionee of a stock certificate for such Common Stock; and,
except as otherwise provided in Paragraph 9 hereof, no adjustment for dividends
or otherwise shall be made if the record date thereof is prior to the date of
issuance of such certificate.
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7. EMPLOYMENT OBLIGATION. The granting of the Option shall not impose
upon the Corporation any obligation to employ or become affiliated with or
continue to employ or be affiliated with the Optionee. The right of the
Corporation to terminate the employment of or its affiliation with the Optionee
or any other person shall not be diminished or affected by reason of the fact
that the Option has been granted to the Optionee.
8. CHANGES IN THE CORPORATION'S CAPITAL STRUCTURE. The existence of the
Option shall not affect in any way the right or power of the Corporation or its
stockholders to make or authorize any or all adjustments, recapitalization,
reorganizations or other changes in the Corporation's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or affecting Common
Stock or the rights thereof, or the dissolution or liquidation of the
Corporation, or any sale or transfer of all or any part of its assets or
business or any other corporate act or proceeding, whether of a similar
character or otherwise. Except as hereinafter expressly provided, the issuance
by the Corporation of shares of Common Stock of any class, for cash or property,
or for labor or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or obligations
of the Corporation convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number, class or price of shares of Common Stock then subject to the Option.
(a) CAPITAL READJUSTMENTS. If the Corporation effects a
subdivision or consolidation of shares or other capital readjustment, the
payment of a stock dividend, or other increase or reduction of the number of
shares of Common Stock outstanding, without receiving compensation therefor in
money, services or property, the number, class and per share option price of
Common Stock subject to the Option hereunder shall be appropriately adjusted in
such a manner as to entitle the Optionee to receive upon exercise of the Option,
for the same aggregate cash consideration, the same total number and class of
shares as the Optionee would have received had the Optionee exercised the Option
in full immediately prior to the event requiring the adjustment.
(b) MERGERS, ETC. If (i) the Corporation is a party to a
merger, consolidation or similar transaction (whether or not the Corporation is
the surviving corporation), or the Corporation is liquidated, or the Corporation
sells or otherwise disposes of substantially all its assets, and (ii) in such
transaction the holders of Common Stock exchange their Common Stock for shares
of stock or for other securities (the "Transaction Securities") of the
Corporation or another corporation, receive additional Common Stock or other
securities, or surrender a portion of their Common Stock, then:
(1) Except as provided in Paragraph 8(b)(2) hereof,
the Optionee shall be entitled, in lieu of the Option, to an Option or Options
to purchase Transaction Securities in an amount (if any) equal to the
Transaction Securities that the Optionee would have received if the Optionee had
exercised the Option in full and held the shares of Common Stock to which the
Option related at the time of such transaction. The option price per share or
other unit of such Transaction Securities shall be determined by dividing the
option price per share of Common Stock subject to the Option by the number of
shares or other units (or the fraction of a share or
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other unit) of Transaction Securities into which each share of Common Stock is
converted or for which Common Stock is exchanged in such transaction.
(2) Notwithstanding any other provision hereof, the
Board of Directors of the Corporation may cancel the Option as of the effective
date of any transaction described in clause (i) of this Paragraph 8(b); provided
that (A) notice of such cancellation shall have been given to the Optionee at
least thirty (30) days before the effective date of such transaction, and (B)
the Optionee shall have the right to exercise the Option in full during the
thirty (30) day period immediately preceding the effective date of such
transaction.
9. WITHHOLDING AND REPORTING. The Corporation's obligation to deliver
shares of Common Stock or to make any payment upon the exercise of the Option
shall be subject to applicable federal, state and local tax withholding and
reporting requirements.
10. SUBJECT TO PLAN. The Option is subject to all the terms,
conditions, limitations and restrictions contained in the Plan, which shall be
controlling in the event of any conflicting or inconsistent provisions.
11. INTERPRETATION OF AGREEMENT; GOVERNING LAW. The Option granted
pursuant hereto is not intended to be an "incentive stock option" within the
meaning of the Internal Revenue Code of 1986, as amended. This Agreement shall
be construed and enforced in accordance with, and governed by, the laws of the
State of New York.
NATIONAL WIRELESS HOLDINGS INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, President
The optionee hereby accepts and agrees to be bound by all terms and
conditions hereof.
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Date: September 15, 1994
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