EXHIBIT 10.21
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
entered into as of June 30, 1997, by and between GALACTICOMM TECHNOLOGIES, INC.
(formerly known as I-View Software, Inc.), a Florida corporation (the
"Company"), and XXXXXXX XXXXXXX (the "Executive").
RECITALS:
A. The Company entered into an Employment Agreement with the Executive
on November 21, 1996 (the "Original Agreement").
B. The Company and the Executive wish to amend and restate the Original
Agreement as set forth herein.
NOW THEREFORE, in consideration of the premise, and the respective
covenants and agreements of each of the Company and the Executive contained in
this Agreement, each of the Company and the Executive agrees as follows:
ARTICLE I
EMPLOYMENT
The Company employs the Executive and the Executive accepts such
employment in accordance with the terms hereof. Subject to the direction of the
Board of Directors of the Company, the Executive shall serve as President of the
Company. The Executive shall have such responsibilities, perform such duties and
exercise such power and authority as are inherent in, or incident to, the office
of President. The Executive shall devote such reasonable time to the performance
of his duties as an officer and employee of the Company as is necessary.
ARTICLE II
SALARY
2.1 SALARY. Commencing as of November 21, 1996 and continuing through
November 20, 1999, the Company shall pay to the Executive a salary of One
Hundred Seventy Five Thousand Dollars ($175,000) per annum (the "Salary") which
salary shall be automatically increased 10% per annum on a cumulative basis
during the term of this agreement on each anniversary date.
2.2 PAYMENT OF SALARY. Payments of Salary shall be made to the
Executive, in installments, from time to time on the same dates payments of
salary are generally made to all senior management employees of the Company.
ARTICLE III
BONUS AND STOCK OPTIONS
3.1 Within 90 days after each fiscal year, the Compensation Committee
(the "Committee") of the Board of Directors shall determine, in its sole and
absolute discretion, the amount of the cash bonus, if any, to be paid to
Executive for his services to the Company for the preceding fiscal year. In
making its determination, the Committee shall consider all factors it deems
relevant, including, but not limited to, the financial condition, results of
operations and business of the Company and the efforts of the Executive in
assisting the Company in achieving its strategic objectives for the preceding
fiscal year.
3.2 The Company shall issue the Executive 720,000 options to purchase
the Company's common stock, par value $0.0001 per share, in accordance with the
terms of the Stock Option and Agreement attached hereto as Exhibit "A".
ARTICLE IV
EMPLOYMENT BENEFITS
4.1 GENERALLY. The Executive shall be entitled to receive all such
benefits and to participate in such benefit and incentive plans, programs and
arrangements as are generally provided from time to time by the Company to its
senior management employees.
4.2 AUTOMOBILE ALLOWANCE. The Company shall pay to the Executive a
monthly allowance of Six Hundred Dollars ($600) which shall be utilized by the
Executive, on a non-accountable basis, to pay for the costs and expenses
incurred by him in connection with the ownership or lease, repair, maintenance
and operation (including insurance expenses) of a late model automobile.
4.3 MEDICAL INSURANCE; TERM LIFE INSURANCE. The Company shall provide
group medical insurance coverage to the Executive or reimburse the Executive for
the cost of such coverage. The Company shall also provide $1,000,000 of term
life insurance naming such beneficiary thereof as the Executive may desire.
4.4 BUSINESS, TRAVEL AND ENTERTAINMENT. Upon submission of appropriate
evidence, the Company shall promptly pay or reimburse the Executive for all
reasonable business, travel and entertainment expenses incurred by the Executive
in connection with the performance of his duties and obligations hereunder.
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ARTICLE V
TERM AND TERMINATION OF EMPLOYMENT
5.1 TERM. The term of this Agreement shall be for a period of three
years, commencing as of November 21, 1996 and expiring on November 20, 1999.
5.2 TERMINATION OF EMPLOYMENT.
(a) Notwithstanding the provisions of Section 5.1 above:
(i) the employment of the Executive by the Company
shall automatically terminate upon the death of the Executive;
(ii) if the Executive shall suffer a Disability (as
such term is hereinafter defined), then the employment of the Executive by the
Company may be terminated by the Company;
(iii) the employment of the Executive by the Company
may be terminated at any time by the Company, either with or without Cause (as
such term is hereinafter defined); and
(iv) the employment of the Executive by the Company
may be terminated at any time by the Executive, either with or without Good
Reason (as such term is hereinafter defined).
(b) If the Company shall desire to terminate the Executive's
employment, or if the Executive shall desire to terminate the Executive's
employment by the Company, as contemplated by Section 5.2(a) above, then, in any
such event, the party causing such termination shall provide a Termination
Notice (as such term is hereinafter defined) to the other party.
5.3 PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) If the employment of the Executive by the Company shall be
terminated due to the Executive's death or Disability, then, in any such event,
the Company shall continue to pay to the Executive or his estate, heirs,
personal representatives or legal representatives, as the case may be, his
Salary (subject to applicable payroll and/or other taxes required by law to be
withheld) for a period of six months from and after the date of termination of
the Executive's employment by the Company.
(b) If the employment of the Executive by the Company shall be
terminated for any reason (other than by the Company due to the Executive's
death or Disability or with Cause, or by the Executive without Good Reason),
then, in any such event, the Company shall continue
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to pay to the Executive his Salary (subject to applicable payroll and/or other
taxes required by law to be withheld) for the greater of (A) the entire
remaining term of this Agreement or (B) twelve consecutive months from such
termination.
(c) If the employment of the Executive by the Company shall be
terminated by the Company with Cause or by the Executive without Good Reason,
then, in any such event, the Company shall continue to pay to the Executive his
Salary (subject to applicable payroll and/or other taxes required by law to be
withheld) through the Termination Date (as such term is hereinafter defined).
(d) If the employment of the Executive by the Company shall be
terminated for any reason, or if the term of this Agreement shall expire in
accordance with its terms, then, in any such event, the Company shall promptly
pay to the Executive all accrued but unpaid benefits to which he shall be
entitled on the date of termination of the Executive's employment by the
Company.
5.4 CERTAIN DEFINITIONS. The following terms shall have the following
respective meanings when utilized in this Article V:
(a) "Cause" shall mean any action by the Executive or any
inaction by the Executive which constitutes:
(i) fraud, embezzlement, misappropriation,
dishonesty or breach of trust;
(ii) a felony;
(iii) a material breach or violation of any or all
of the covenants, agreements and obligations of the Executive set forth in this
Agreement, other than as the result of the Executive's death or Disability;
(iv) a willful or knowing failure or refusal by the
Executive to perform any or all of his material duties and responsibilities as
an officer of the Company, other than as the result of the Executive's death or
Disability: or
(v) gross negligence by the Executive in the
performance of any or all of his material duties and responsibilities as an
officer of the Company, other than as a result of the Executive's death or
Disability;
provided, however, that if the basis for any termination of the Executive's
employment by the Company as set forth in the Termination Notice delivered by
the Company to the Executive is any or all of the definitions of Cause set forth
in Sections 5.4(a)(iii), 5.4(a)(iv) or 5.4(a)(v) of this Agreement, then, in
such event, the Executive shall have thirty (30) days from and after the date of
his receipt of such Termination Notice to present a reasonable plan to cure such
action or inaction specified in the Termination Notice, which plan may require
more than thirty (30)
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days to cure the specified action or inaction, but such plan must be reasonably
satisfactory to the Company and the Executive must proceed diligently to
effectuate such plan.
(b) "Disability" shall mean any mental or physical illness,
condition, disability, or incapacity which prevents the Executive from
reasonably discharging his duties and responsibilities as an officer of the
Company. If any disagreement or dispute shall arise between the Company and the
Executive as to whether the Executive suffers from any Disability, then, in such
event, the Executive shall submit to the physical or mental examination of a
physician licensed under the laws of the State of Florida, who is mutually
agreeable to the Company and the Executive, and such physician shall determine
whether the Executive suffers from any Disability. In the absence of fraud or
bad faith, the determination of such physician shall be final and binding upon
the Company and the Executive. The entire cost of such examination shall be paid
for solely by the Company.
(c) "Good Reason" shall mean:
(i) the assignment by the Board of Directors or the
Executive Committee of the Board of Directors to the Executive, without his
express written consent, of duties and responsibilities which results in the
Executive having significantly less duties and responsibilities or exercising
significantly less power and authority than he had, or duties and
responsibilities or power and authority not materially comparable to that of the
level and nature which he had, immediately prior to such assignment; provided,
however, that neither Executive nor Xxxxx Xxxx shall have, directly or
indirectly, initiated or participated in said action by the Board of Directors
or Executive Committee;
(ii) the removal of the Executive from, or a failure
to reappoint the Executive to, his then current position or positions with the
Company or its subsidiaries or affiliates, except (A) with the Executive's
express written consent (B) in connection with any termination of the
Executive's employment by the Company as the result of the Executive's death or
Disability or with Cause or (C) upon nonrenewal of Executive's employment after
expiration of the initial employment term under this Agreement;
(iii) the reduction of the Executive's Salary or the
reduction of any or all of the Executive's benefits set forth in Article IV
above (unless such reduction shall have been in respect of reductions in group
benefits applicable to substantially all employees of the Company);
(iv) the Company's failure to perform on a timely
basis its obligations under this Agreement upon 30 days' prior notice from
Executive together with an opportunity to cure said nonperformance during such
period;
(v) the Board of Director's requiring the Executive,
without his express written consent, to change his place of permanent residency
to a place outside of Broward, Palm
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Beach or Dade County, Florida; provided, however, that neither Executive nor
Xxxxx Xxxx shall have, directly or indirectly, initiated or participated in said
action by the Board of Directors or Executive Committee; or
(vi) the Company's moving its executive offices to a
place outside of Broward, Dade or Palm Beach County, Florida without the
Executive's express written consent; provided, however, that neither Executive
nor Xxxxx Xxxx shall have, directly or indirectly, initiated or participated in
said action by the Board of Directors; or
(d) "Termination Date" shall mean a specific date not less
than forty-five (45) nor more than ninety (90) days from and after the date of
any Termination Notice upon which the Executive's employment by the Company
shall be terminated in accordance with the provisions of this Agreement.
(e) "Termination Notice" shall mean a written notice which
sets forth (i) the specific provision of this Agreement relied upon to terminate
the Executive's employment, (ii) in reasonable detail the facts and
circumstances claimed to provide the basis for the termination of the
Executive's employment, and (iii) a Termination Date.
5.5 SURVIVAL. All of the provisions of this Agreement, other than those
contained in Articles I, III, and IV hereof, shall survive the termination for
any reason of the Executive's employment by the Company or the expiration of the
term of this Agreement. The provisions of Article II of this Agreement shall
survive the termination for any reason of the Executive's employment by the
Company or the expiration of the term of this Agreement only to the extent set
forth in this Article V.
ARTICLE VI
Certain Restrictions on the Executive
6.1 CERTAIN RESTRICTIONS. The Executive covenants and agrees with the
Company as follows:
(a) He shall not at any time, directly or indirectly, for
himself or any other person, firm, corporation, partnership, association or
other entity (collectively, a "Person") which competes in any manner with the
Company or any of its subsidiaries or affiliates in any county or parish of any
state of the United States of America or its territories and possessions in
which the Company as of the date that the Executive's employment by the Company
is terminated for any reason or the term of this Agreement expires in accordance
with its terms, as the case may be, conducts its business directly or indirectly
through any of its subsidiaries or affiliates (collectively, the "Territory"),
employ, attempt to employ or enter into any contractual arrangement for
employment with, any employee or former employee of the Company or any of its
subsidiaries or affiliates, unless such former employee shall not have been
employed by the Company or any of its subsidiaries or affiliates for a period of
at least one year.
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(b) He shall not, during the term of his employment by the
Company and for a period of one year and after the date that his employment by
the Company is terminated for any reason or the term of this Agreement expires
in accordance with its terms, as the case may be, directly or indirectly, (i)
acquire or own in any manner any interest in, or loan any amount to, any Person
which competes in any manner with the Company or any of its subsidiaries or
affiliates in the Territory, (ii) be employed by or serve as an employee, agent,
officer, or director of, or as a consultant to, any Person, other than the
Company and its subsidiaries and affiliates, which competes in any manner with
the Company or its subsidiaries or affiliates in the Territory, or (iii) compete
in any manner with the Company or its subsidiaries or affiliates in the
Territory. The foregoing provisions of this Section 6.1 (b) shall not prevent
the Executive from acquiring and owning not more than five percent (5%) of the
equity securities of any Person whose securities are listed for trading on a
national securities exchange or are regularly traded in the over-the-counter
securities market.
(c) In the course of the Executive's employment by the Company, the
Executive will have access to confidential or proprietary information of the
Company and its subsidiaries and affiliates. The Executive shall not at any time
use any such confidential or proprietary information other than for the benefit
of the Company and its subsidiaries and affiliates. The term "confidential or
proprietary information" shall mean information not generally available to the
public, including without limitation personnel information, financial
information, customer lists, supplier lists, ownership information, marketing
plans and analyses, trade secrets, know-how, computer software, management
agreements and procedures and techniques of operating and managing the business
of the Company and its subsidiaries and affiliates. The Executive acknowledges
and agrees that all confidential or proprietary information is and shall remain
the property of the Company and its subsidiaries and affiliates, and agrees to
maintain all such confidential or proprietary information in confidence.
(d) DEVELOPMENTS. All inventions patentable, copyrightable or
otherwise, trade secrets, discoveries, improvements, ideas and writings
(hereinafter collectively termed "developments"), which Executive, alone or
jointly with others, has conceived, made, enhanced, modified, developed, or
acquired, or may conceive, make, enhance, modify, develop, or acquire during the
period of his employment hereunder or during an additional period of one (1)
year after the termination of such employment and which relate to the Company's
business of developing and marketing computer hardware and software, and all
developments which relate to the work upon which Executive shall have been
engaged while in the Company's employment, which Executive has conceived, made,
enhanced, modified, developed, or acquired, or may conceive, make, enhance,
modify, develop, or acquire during the period of his employment or during a
period of one (1) year after the termination of such employment, to the extent
that such developments are possessed by Executive at any time, shall be the sole
property of the Company. The term "development" shall include developments
conceived, devised, made, developed or perfected during off-duty hours and away
from the Company's premises as well as to those conceived, devised, made,
developed, or perfected in the regular course of employment.
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(e) DISCLOSURE AND COOPERATION. Executive shall promptly and fully
disclose in writing all such developments described in subparagraph (d) hereof
to the Company's Chief Executive Officer. Executive shall, at any time upon the
Company's request, whether or not then in the Company's employ, execute,
acknowledge and deliver to the Company all instruments which the Company shall
prepare, give evidence, and do all other things which are necessary or
desirable, to enable the Company to file and prosecute applications for, and to
acquire, maintain and enforce all patents, trademarks, copyrights, and any other
intellectual property rights in all countries, covering such developments. The
Company agrees to pay to Executive reasonable expenses incurred by Executive
under this subparagraph (e).
6.2 REMEDIES. It is recognized and acknowledged by each of the Company
and the Executive that a breach or violation by the Executive of any or all of
his covenants and agreements contained in Section 6.1 of this Agreement will
cause irreparable harm and damage to the Company and its subsidiaries and
affiliates in a monetary amount which would be virtually impossible to ascertain
and, therefore, will deprive the Company of an adequate remedy at law.
Accordingly, if the Executive shall breach or violate any or all of his
covenants and agreements set forth in Section 6.1 hereof, then the Company and
its subsidiaries and affiliates shall have resort to all equitable remedies,
including without limitation the remedies of specific performance and
injunction, both permanent and temporary, as well as all other remedies which
may be available at law.
6.3 INTENT. It is the intent of the parties that the restrictions set
forth in Section 6.1 hereof shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement of
such restrictions may be sought. If any provision contained in Section 6.1
hereof shall be adjudicated by a court of competent jurisdiction to be invalid
or unenforceable because of its duration or geographic scope, then such
provision shall be reduced by such court in duration or geographic scope or both
to such extent as to make it valid and enforceable in the jurisdiction where
such court is located, and in ail other respects shall remain in full force and
effect.
ARTICLE VII
INDEMNIFICATION
The Company shall indemnify auld hold harmless the Executive from and
against the full amount of any and all claims, demands, suits, actions,
judgements, losses, liabilities, costs, interest and expenses, including without
limitation fees and disbursements of trial and appellate counsel, asserted or
brought against the Executive by any Person with respect to any action taken or
omitted to be taken by the Executive in the course of his employment by the
Company or otherwise related to or arising out of his employment by the Company
or acting as a director, officer, employee or agent of the Company or any of its
subsidiaries or affiliates. This right to indemnification shall be in effect to
the fullest extent available pursuant to law, and shall be in addition to any
other right to indemnification the Executive may possess pursuant to law and the
Articles of Incorporation and Bylaws of the Company or any of its subsidiaries
or affiliates.
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ARTICLE VIII
ATTORNEYS' FEES
In the event that any litigation shall arise between the Company and
the Executive based, in whole or in part, upon this Agreement or any or all of
the provisions contained herein, then, in any such event, the prevailing party
in any such litigation shall be entitled to recover from the non-prevailing
party, and shall be awarded by a court of competent jurisdiction, any and all
reasonable fees and disbursements of trial and appellate counsel paid, incurred
or suffered by such prevailing party as the result of, arising from, or in
connection with, any such litigation.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 GOVERNING LAW. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of Florida.
9.2 NOTICES. Any and all notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given when delivered by hand, or when delivered by
United States mail, by registered or certified mail, postage prepaid, return
receipt requested, to the respective parties at the following respective
addresses:
If to the Company: Galacticomm Technologies, Inc.
0000 X.X. 00 Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
If to the Executive: Xxxxxxx Xxxxxxx
00000 X.X. 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as either party may from time to time give written
notice of to the other in accordance with the provisions of this Section 9.2.
9.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and the Executive with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
arrangements, both oral and written, between the Company and the Executive with
respect to such subject matter.
9.4 AMENDMENTS. This Agreement may not be amended or modified in any
manner, except by a written instrument executed by each of the Company and the
Executive.
9.5 BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of, and shall be binding upon, each of the Company and the Executive and their
respective heirs, personal representatives, executors, legal representatives,
successors and assigns.
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9.6 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part hereof, all of which are inserted conditionally on their being valid in
law. Except as otherwise provided in Section 6.3 above, if any one or more of
the words, phrases, sentences, clauses or sections contained in this Agreement
shall be declared invalid by any court of competent jurisdiction, then, in any
such event, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, or section or
sections had not been inserted.
9.7 NO WAIVERS. The waiver by either party of a breach or violation of
any provision of this Agreement by the other party shall not operate nor be
construed as a waiver of any subsequent breach or violation. The waiver by
either party to exercise any right or remedy it or he may possess shall not
operate nor be construed as a bar to the exercise of such right or remedy by
such party upon the occurrence of any subsequent breach or violation.
9.8 JURISDICTION AND VENUE; SERVICE OF PROCESS. Any claim or dispute
arising out of, connected with, or in any way related to this Agreement which
results in litigation shall be instituted by the complaining party and
adjudicated either in the federal or state courts located in Broward County,
Florida and each of the parties to this Agreement consent to the personal
jurisdiction of and venue in such courts. In no event shall either party to this
Agreement contest the jurisdiction or venue of such courts with respect to any
such litigation. Each of the Company and the Executive agrees that service of
any process, summons, notice or document, by United States registered or
certified mail, to its or his address set forth in or as provided in Section 9.2
above shall be effective service of such process, summons, notice or document
for any action, suit or proceeding brought against it or him by the other party
in the federal or state courts located in Broward County, Florida.
9.9 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of any or all of the provisions hereof.
9.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has executed and
delivered this Agreement as of the date first written above.
GALACTICOMM TECHNOLOGIES, INC.
/S/ XXXXXXX XXXXXXX By:/S/ XXXXX XXXX
------------------------------ ---------------------------
Xxxxxxx Xxxxxxx Name: /S/ XXXXX XXXX
------------------------
Title: /S/ CHIEF EXECUTIVE OFFICER
---------------------------
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EXHIBIT "A"
THIS STOCK OPTION AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE SECURITIES LAWS. THIS STOCK OPTION AND THE SHARES MAY NOT BE SOLD,
TRANSFERRED, OR ASSIGNED IN 1111; ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNLESS, IN THE OPINION OF COUNSEL TO THE COMPANY, SUCH REGISTRATION IS NOT THEN
REQUIRED.
GALACTICOMM TECHNOLOGIES, INC.
STOCK OPTION AND AGREEMENT
THIS STOCK OPTION ("option[s]") for a total of 720,000 shares of common
stock, par value $.0001 per share (the "Common Stock"), of Galacticomm
Technologies, Inc., a Florida corporation (the "Company"), has been granted to
Xxxxxxx Xxxxxxx ("Optionee"), one of the Company's key personnel, at the price
and subject to the terms and conditions contained herein.
1. Exercise Price. The exercise price (the "Exercise Price") of all
options granted hereunder is $0.92 for each share of Common Stock.
2. Term and Vesting. Subject to the terms and conditions contained
herein, this option shall be exercisable in any order for an amount of shares
not to exceed 720,000 shares of Common Stock, provided that the rights of
Optionee hereunder to exercise the options shall vest in accordance with the
following schedule:
(a) At any time on or after November 21, 1997, Optionee may exercise
this option to the extent of one-third of the options granted hereby;
(b) At any time on or after November 21, 1998, Optionee may exercise
this option to the extent of an additional one-third of the options granted
hereby; and
(c) At any time after November 21, 1999, Optionee may exercise this
option to the extent of the balance of the options granted hereby.
3. Exercise of Option. This option shall be exercisable as follows:
(a) Time and Manner of Exercise of Option.
(i) No portion of the option may be exercised more than five years from
the respective vesting dates set forth in Sections 2(a), (b) and (c) hereof.
(ii) If Optionee's employment with the Company is terminated with
"cause" pursuant to the terms of Optionee's Employment Agreement, dated as of
November 21, 1996 (as amended), between Optionee and the Company (the
"Employment Agreement"), the Optionee shall forfeit the right to exercise all
non-vested options granted hereunder and payment
for the exercise of all options which were vested on the date of such
termination of employment shall be made to the Company in accordance with
Section 3(b) hereof within the earlier of ten (10) days of such termination of
employment or the date by which the vested options expire by the terms hereof.
(iii) If the Optionee dies, the options granted hereunder which have
vested as of the Optionee's death may be exercised within one (1) year after the
date of Optionee's death or prior to the date on which the vested option expires
by its terms, whichever is earlier, by the estate of the Optionee, or by any
person or persons whom Optionee shall have designated in writing in documents
filed with the Company or, if no such designation has been made, by the person
or persons to whom Optionee's rights hereunder shall have passed by will or the
laws of descent and distribution.
(iv) Upon the sale of all or substantially all of the assets of the
Company, the transfer of a controlling equity interest (as hereinafter defined)
in the Company, all outstanding options shall automatically vest and shall be
exercisable on the closing date of such transaction. Written notice of not less
than twenty (20) days shall be given by the Company to the Optionee of the
anticipated closing date of any such transaction. If such closing date changes,
the Company shall provide written notice of the new closing date as soon as
practicable to the Optionee. Any options not so exercised by the Optionee shall
be null and void if not exercised on such closing date. As used herein, the term
"controlling equity interest" shall mean the ability of any person, entity or
group to direct the management and policies of the Company.
(v) Each option granted hereunder shall be deemed exercised when
Optionee shall indicate his decision to do so in writing to the Company in
accordance with Section 3(b) hereof, and shall at the same time tender to the
Company payment in full in cash for the shares as to which the option is
exercised. The options granted hereunder may be exercised as to any lesser
number of shares than the full amount for which the options could be exercised.
Such a partial exercise of an option shall not affect the right to exercise the
option as to the remaining shares subject to the option. The right to exercise
this option shall be cumulative so that when the right to exercise an option has
vested, the shares eligible for purchase hereunder may be purchased at any time
thereafter until the expiration of the option pursuant to this Section 3(a).
(b) Method of Exercise. This option shall be exercisable by a written
notice which shall:
(i) state the election to exercise the option, the number of shares in
respect of which it is being exercised, the person in whose name the stock
certificate(s) for such shares of Common Stock is to be registered, his or her
address and Social Security Number (or if more than one, the names, addresses
and Social Security numbers of such persons);
(ii) be signed by the person or persons entitled to exercise the option
and, if the option is being exercised by any person(s) other than the Optionee,
be accompanied by proof, satisfactory to counsel for the Company, of the right
of such person(s) to exercise the Option; and
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(iii) be delivered in person or by certified mail to the Compensation
Committee of the Company's Board of Directors (the "Committee").
(c) Payment. Payment of the purchase price (the "Purchase Price") of
any shares with respect to which the option is being exercised shall be: (i) in
cash; (ii) by certified or bank check payable to the order of the Company; (iii)
by the delivery of unexercised options or shares of Common Stock having a fair
market value equal to the Purchase Price, or (iv) by any combination of the
foregoing having a fair market value equal to the Purchase Price. The Company
shall withhold from the shares of Common Stock to be issued upon the exercise of
this Option that number of shares of Common Stock having a fair market value
equal to the tax withholding amount due.
(d) Restrictions on Exercise. Notwithstanding anything contained herein
to the contrary, this option may not be exercised if the issuance of the shares
of Common Stock upon such exercise would constitute a violation of any
applicable federal or state securities laws or other applicable laws or
regulations. As a condition to the exercise of this option, the Committee may
require the person exercising this option to make such representations and agree
to such covenants as may be required by any applicable law or regulation.
4. Beneficiary Designation. Optionee may designate to the Committee, on
a form provided by the Company for that purpose, a beneficiary or beneficiaries
who shall be entitled to the benefits hereunder. Such designation may be
canceled or changed by Optionee, but no cancellation or change will be
recognized by the Committee unless effected in writing on a form provided by the
Committee for that purpose and filed with the Company.
5. Optionee's or Successor's Rights as Stockholders. Neither the
Optionee nor his successor(s) in interest shall have any rights as a stockholder
of the Company with respect to any shares subject to the options granted to the
Optionee hereunder until the Optionee or his successor in interest becomes a
holder of record of such shares and receives a certificate or certificates
representing such shares from the Company or its duly authorized agent, which
certificate or certificates shall be mailed to the Optionee or his successor in
interest (at the last known address of the Optionee or his successor in
interest) not later than ten (10) business days after the exercise of the Option
in accordance with the terms contained herein.
6. Regulatory Approval and Compliance. The Company shall not be
required to issue any certificate or certificates for shares of its Common Stock
upon the exercise of an option granted hereunder, or record as a holder of
record of such shares the name of the individual exercising any options granted
hereby, without obtaining, to the reasonable satisfaction of the Committee, the
approval of all regulatory bodies deemed necessary by the Committee, and without
complying, to the Committee's complete satisfaction, with all rules and
regulations, under federal, state or local law deemed applicable by the
Committee.
7. Non-transferabilitv of Option. Except as set forth herein, this
option may not be transferred in any manner otherwise than by will or the laws
of descent and distribution and may be exercised during the lifetime of the
Optionee only by him. The terms of this option shall be binding upon the
beneficiaries of Optionee.
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8. Adjustment of Exercise Price in the Event of Stock Dividends. Stock
Splits and Reverse Stock Splits. If the Company issues Common Stock or
convertible secunties by way of dividend or other general distribution to all of
the record holders of any stock of the Company or effects a stock split or
reverse stock split of the outstanding shares of Common Stock, the Exercise
Price shall be proportionately adjusted in the case of such issuance (on the day
following the date fixed for-determining stockholders entitled to receive such
dividend or other such reverse stock split (on the date that such stock split or
reverse stock split shall become effective), by mulffplying the Exercise Price
in effect immediately prior to the stock dividend, stock split or reverse stock
split by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately prior to such stock dividend, stock split or
reverse stock split, and the denominator of which is the number of shares of
Common Stock outstanding immediately after such stock dividend, stock split or
reverse stock split.
9. Adjustment of Number of Stock Issuable upon Exercise. Upon each
adjustment of the Exercise Price pursuant to Section 8 hereof, the Optionee
shall thereafter (until another such adjustment) be entitled to purchase, at the
Exercise Price in effect on the date purchase rights under this option are
exercised, the number of shares of Common Stock, calculated to the nearest whole
number of Common Stock, determined by (a) multiplying the number of shares of
Common Stock purchasable hereunder immediately prior to the adjustment of the
Exercise Price by the Exercise Price in effect immediately prior to such
adjustment, and (b) dividing the product so obtained by the Exercise Price in
effect on the date of such exercise.
10. Investment Intent. The options being received will be purchased
solely for Optionee's own account for investment purposes only and not for the
account of any other person and not for distribution, assignment or resale to
others. No other person has a direct or indirect beneficial interest in the
options or the shares of Common Stock underlying the options (the "Underlying
Shares"). Optionee has not subdivided the beneficial ownership of the options or
the Underlying Shares with any other person.
11. Transfer to Complv with the Securities Act of 1933.
(a) The Underlying Shares may not be offered or sold except in
compliance with the Securities Act of 1933 (the "Act"), or any similar federal
or state statute then in effect, and then only if such person to whom such offer
or sale is made agrees with the Company to comply with the provisions of this
Section 10 with respect to the restrictions for the resale or other disposition
of such securities contained herein.
(b) Prior to the disposition of any Underlying Shares under
circumstances that might require registration of the Underlying Shares under the
Act, or any similar federal or state statute then in effect, Optionee shall give
written notice to the Company, expressing his intention as to the disposition to
be made of such Underlying Shares. Promptly upon receiving such notice, the
Company shall present copies thereof to its counsel. If, in the opinion of such
counsel, the proposed disposition does not require registration under the Act,
or any similar federal or. state statute then in effect with respect to the
Underlying Shares, the Company shall, as promptly as practicable, notify
Optionee of such opinion, whereupon Optionee shall be entitled
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to dispose of such Underlying Shares, all in accordance with the terms of the
notice delivered by Optionee to the Company.
(c) The Company may cause a legend in substantially the form that
follows to be set forth on the certificate representing the Underlying Shares,
unless counsel for the Company is of the opinion as to any such certificate that
such legend is unnecessary:
The securities represented by this certificate can only be transferred
in compliance with the Securities Act of 1933 and all applicable state
securities laws. This stock option and the shares may not be sold,
transferred, or assigned in the absence of an effective registration
statement unless, in the opinion of counsel to the Company, such
registration is not then required.
12. Governing Law. This Stock Option and Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
DATE OF GRANT: __________________
GALACTICOMM TECHNOLOGIES, INC.
By: _________________________
Name:________________________
Title:_______________________
ATTEST:
______________________________
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_______
Date
Galacticomm Technologies, Inc.
0000 X.X. 47 Avenue
Suite i01
Ft. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Compensation Committee
Re: Exercise of Nonqualified Stock Option
Dear Sir:
Please be advised that pursuant to the Stock Option and Agreement
("Agreement"), dated as of ___________ , 19_ between Galacticomm Technologies,
Inc. (the "Company") and the undersigned ("Optionee"), Optionee hereby exercises
the stock option ("Option") in the amount of _________ shares of common stock of
the Company and herewith tenders the following _________________________ ,
having an aggregate value of ________________ ($____), in payment for such
shares of common stock. Capitalized terms not otherwise defined herein are
defined as set forth in the Agreement.
Optionee requests stock certificates for such shares issued in the name
of __________________________ whose address is________________________________
and whose social security number is __________________.
Optionee hereby acknowledges, warrants and represents the following:
(1) Optionee's acknowledgements, representations, warranties and
agreements contained in the Agreement are true, complete and accurate as of the
date of this letter.
(2) The Option is presently exercisable and as such, has vested and has
not expired.
(3) Optionee is presently and has been in full compliance with all the
terms, conditions and provisions of the Agreement.
Sincerely,
_______________________________
Optionee
