Exhibit 4.3
Stock Option Agreement Between
the Registrant and Xxxx Xxxxxxx
STOCK OPTION AGREEMENT (this "Agreement") dated as of
September 16, 1994, between SFMT, INC., a Delaware corporation (the "Company"),
and Xxxx Xxxxxxx ("Xxxxxxx").
WHEREAS, San Francisco/Moscow Teleport, Inc., a California
corporation and a predecessor corporation of the Company, granted certain stock
options to Xxxxxxx;
WHEREAS, SFMT has not previously entered into a stock option
agreement with Xxxxxxx to document the grant of such options;
WHEREAS, such options are in consideration of Xxxxxxx'x
arranging for the obtaining of capital financing for the Company in 1988; and
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, the Company and Xxxxxxx
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities
Act.
"Common Stock" means common stock, par value $.0001 per share,
of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Legended Certificate" means a certificate evidencing a number
of shares of Common Stock issued upon the exercise of any Options and
imprinted with a legend to indicate that if the offer and sale of such
shares have not been registered under the Securities Act, such shares
may be sold only pursuant to a registration statement under the
Securities Act or an exemption from registration under the Securities
Act that the Company has determined is available for such sale.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint
stock company or any other entity or organization, including a
government or political subdivision or any agency or instrumentality
thereof.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
ARTICLE II
OPTIONS
SECTION 2.01. Grant of Options. Subject to the terms and
conditions contained herein, the Company confirms the grant in 1998 to Xxxxxxx,
effective as of the date hereof, Options to purchase 12,500 shares of Common
Stock. Each Option shall be exercisable at an exercise price of $.80 per share
(the "Option Price"). Shares issuable upon the exercise of any Options are
hereinafter referred to as "Option Shares". The Options shall be exercisable as
hereinafter provided.
SECTION 2.02. Terms and Conditions of Options. The Options
evidenced hereby are subject to the following terms and conditions:
(a) Restrictions on Transfer. The Options shall not be
transferable other than by will or the laws of descent and
distribution, and the Options may not be exercised by anyone other than
Xxxxxxx during Xxxxxxx'x lifetime. Each transferee shall, as a
condition to the transfer of any Options, execute an agreement pursuant
to which it shall become a party to this Agreement.
(b) Expiration. Each unexercised Option shall terminate on
December 31, 2003.
SECTION 2.03. Exercise of Options; Restrictions on Option
Shares. (a) Notice. Subject to the conditions set forth in Sections 2.03(b) and
2.03(c), Xxxxxxx may exercise all or any portion of his Options by giving
written notice thereof to the Company. The date of exercise of the Options with
respect to the number of shares of Common Stock specified in the notice shall be
the later of (i) the date on which the Company receives such written notice or
(ii) the date on which the conditions provided in Sections 2.03(b), 2.03(c) and
2.03(d) are satisfied.
(b) Payment. Prior to the delivery to Xxxxxxx of a Legended
Certificate evidencing shares of Common Stock in respect of which all or a
portion of his Options shall have been exercised. Xxxxxxx shall have paid to the
Company the Option Price of all shares of Common Stock purchased pursuant to
such exercise of such Options in cash.
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(c) Limitation of Exercise. Options shall not be exercisable
unless the offer and sale of the Common Stock subject to the Options has been
registered under the Securities Act, or the Company has determined that an
exemption from registration under the Securities Act is available.
(d) Stockholder Rights. Xxxxxxx shall not have any rights as a
stockholder with respect to any shares of Common Stock issuable upon exercise of
an Option until a certificate or certificates evidencing such Option Shares
shall have been issued to Xxxxxxx and no adjustment shall be made for dividends
or distributions or other rights in respect of any share for which the record
date is prior to the date upon which Xxxxxxx shall become the holder of record
thereof. Xxxxxxx, with respect to the Option Shares so issued to him, shall have
all rights of a holder of Common Stock as to such Option Shares, subject to the
restrictions set forth in this Section 2.03.
(e) Dividends and Distributions. Any shares of Common Stock,
received by Xxxxxxx as a result of a stock dividend on any Option Shares or a
stock distribution to him as the holder of Option Shares shall be subject to the
same restrictions as the Option Shares and all references to Option Shares
hereunder shall be deemed to include such shares of Common Stock.
(f) Certificate. Upon receipt of payment and satisfaction of
the obligations imposed by Sections 2.03(c) and 2.03(d), the Company shall
deliver to Xxxxxxx a Legended Certificate in Xxxxxxx'x name evidencing the
appropriate number of shares of Common Stock issued upon exercise of any Options
so exercised.
SECTION 2.04. Effect of Certain Corporate Changes. (a) Subject
to the other terms of Article II, in the event that (i) the Company is merged or
consolidated with another corporation, (ii) all or substantially all the assets
of the Company are acquired by another corporation, person or entity, (iii) the
Company is reorganized, dissolved or liquidated (each such event in (i), (ii) or
(iii) being hereinafter referred to as a "Reorganization Event") or (iv) the
Board of Directors of the Company shall propose that the Company enter into a
Reorganization Event, then the terms of the Options shall be adjusted so that,
upon the exercise thereof, Xxxxxxx shall be entitled to receive the amount and
type of consideration that he would have been entitled to receive with respect
to his Option Shares if Xxxxxxx had exercised immediately prior to such
Reorganization Event all previously unexercised Options granted hereunder.
(b) Other Adjustments. In the event of a stock dividend,
reverse stock split, stock split or other similar transaction, the Company shall
adjust the number of shares of Common Stock subject to each Option accordingly.
Such adjustment shall be conclusive and binding for all purposes.
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ARTICLE III
MISCELLANEOUS
SECTION 3.01. No Restrictions on Right of Company to Effect
Corporate Changes. This Agreement shall not affect in any way the right or power
of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure, or its business, or any merger or consolidation of the Company, or
any issue of stock or options, warrants or rights to purchase stock or of bonds,
debentures or preferred or prior preference stock whose rights are superior to
or affect the Common Stock or the rights thereof or which are convertible into
or exchangeable for Common Stock, or the dissolution or liquidation of the
Company, 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.
SECTION 3.02. Exchange Act. Notwithstanding anything contained
herein to the contrary, if the Company determines that the consummation of any
transaction under this Agreement would result in the possible imposition of
liability on Xxxxxxx pursuant to Section 16(b) of the Exchange Act, the Company
shall defer such transaction to the extent necessary to avoid such liability,
but in no event in excess of 180 days.
SECTION 3.03. Binding Obligations; Survival; Assignment. This
Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. All agreements and covenants
made herein shall survive the issuance of the Options and the Option Shares to
Xxxxxxx and, notwithstanding any investigation heretofore or hereafter made by
Xxxxxxx or the Company or on Xxxxxxx'x or the Company's behalf, shall continue
in full force and effect. Xxxxxxx may not assign any of his rights hereunder
except by will or the laws of descent and distribution.
SECTION 3.04. Communications. All notices, demands and other
communications provided for hereunder shall be in writing and shall be given by
registered or certified mail (return receipt requested), telegram, telecopy,
courier service or personal delivery, if to Xxxxxxx, addressed in care of Xxxx
Xxxxxxx, Xxxx Xxxxxxx-Xxxx Partners, 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, telecopy number (000) 000-0000, or such other address as Xxxxxxx may
designate in writing; and, if to the Company, addressed in care of SFMT, Inc.,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: X.X. Xxxxxxxxx, or to
such other address as the Company may designate in writing.
SECTION 3.05. Miscellaneous. This Agreement may be executed in
one or more counterparts and by the parties hereto in separate counterparts,
each of which, when so executed and delivered, shall be deemed to be an original
and, taken together, shall constitute one and the same instrument. Any provision
of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or
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unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provisions in any other
jurisdiction. The Article and Section headings used or contained in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement. Except as otherwise provided in this Agreement,
no amendment, modification, supplement or waiver of or to any provision of this
Agreement shall be effective unless in writing and signed by Xxxxxxx and the
Company. This Agreement, together with the other writings referred to herein or
delivered pursuant hereto, together contain the entire understanding of the
parties with respect to the subject matter contained herein and supersede all
prior arrangements or understandings with respect thereto. This Agreement shall
be governed by, and construed in accordance with, laws of the State of New York
applicable to contracts wholly performed in the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SFMT, INC.
/s/ SFMT, Inc.
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Xxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
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