1
EXHIBIT 3.2
MIRACOM CORPORATION
STOCK OPTION AGREEMENT
FOR
XXXXX X. XXXXX
AGREEMENT
1. Grant of Option. Miracom Corporation (the "Company") hereby grants,
as of February 12, 1999, to Xxxxx X. Xxxxx (the "Optionee") an option (the
"Option") to purchase up to 110,000 shares of the Company's Common Stock, $.001
par value per share (the "Shares"), at an exercise price per share equal to
$3.00. The Option shall be subject to the terms and conditions set forth herein.
The Option was issued pursuant to the Company's 1999 Stock Option Plan (the
"Plan"), which is incorporated herein for all purposes. The Option is a
nonqualified stock option, and not an Incentive Stock Option. The Optionee
hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all
of the terms and conditions hereof and thereof and all applicable laws and
regulations.
2. Definitions. Unless otherwise provided herein, terms used herein
that are defined in the Plan and not defined herein shall have the meanings
attributed thereto in the Plan.
3. Exercise Schedule. Except as otherwise provided in Sections 6 or 9
of this Agreement, or in the Plan, the Option is exercisable in installments as
provided below, which shall be cumulative. To the extent that the Option has
become exercisable with respect to a percentage of Shares as provided below, the
Option may thereafter be exercised by the Optionee, in whole or in part, at any
time or from time to time prior to the expiration of the Option as provided
herein. The following table indicates each date (the "Vesting Date") upon which
the Optionee shall be entitled to exercise the Option with respect to the
percentage of Shares granted as indicated beside the date, provided that the
Optionee has been continuously employed by the Company or a Subsidiary through
and on the applicable Vesting Date:
Percentage or Number of Shares Vesting Date
------------------------------ ------------
36,667 shares October 1, 1999
36,667 shares October 1, 2000
36,666 shares October 1, 2001
Except as otherwise specifically provided herein, there shall be no
proportionate or partial vesting in the periods prior to each Vesting Date, and
all vesting shall occur only on the appropriate Vesting Date. Upon an Optionee's
termination of employment with the Company and its Subsidiaries, any unvested
portion of the Option shall terminate and be null and void.
4. Method of Exercise. The vested portion of this Option shall be
exercisable in whole or in part in accordance with the exercise schedule set
forth in Section 3 hereof by written notice
2
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other representations
and agreements as to the holder's investment intent with respect to such Shares
as may be required by the Company pursuant to the provisions of the Plan. Such
written notice shall be signed by the Optionee and shall be delivered in person
or by certified mail to the Secretary of the Company. The written notice shall
be accompanied by payment of the exercise price. This Option shall be deemed to
be exercised after both (a) receipt by the Company of such written notice
accompanied by the exercise price and (b) arrangements that are satisfactory to
the Committee in its sole discretion 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. No Shares will be issued
pursuant to the Option unless and until such issuance and such exercise shall
comply with all relevant provisions of applicable law, including the
requirements of any stock exchange upon which the Shares then may be traded.
5. Method of Payment. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee: (a)
cash; (b) check; or (c) with Shares that have been held by the Optionee for at
least 6 months (or such other Shares as the Company determines will not cause
the Company to recognize for financial accounting purposes a charge for
compensation expense), or (d) such other consideration or in such other manner
as may be determined by the Board or the Committee in its absolute discretion.
6. Termination of Option.
(a) Any unexercised portion of the Option shall automatically
and without notice terminate and become null and void immediately upon the
termination of the Optionee's employment with the Company and its Subsidiaries
for Cause (as "Cause" is defined in Optionee's employment agreement with the
Company).
(b) If Optionee's employment with the Company and its
Subsidiaries is terminated by the Company without Cause, the Option shall become
exercisable in full upon such termination and Optionee shall have the right to
retain the Option.
(c) If Optionee's employment with the Company and its
Subsidiaries is terminated by the Company due to Optionee's Disability (as
defined in Optionee's employment agreement with the Company), Optionee shall
have the right to retain the portion of the Option that is exercisable on the
date of termination of employment.
(d) If Optionee's employment with the Company and its
Subsidiaries is terminated due to Optionee's death, any unexercised portion of
the Option shall automatically and without notice terminate and become null and
void twelve months after Optionee's date of death.
(e) If Optionee's voluntarily terminates his employment with
the Company and its Subsidiaries (except in connection with a Change of
Control), any unexercised portion of the Option shall automatically and without
notice terminate and become null and void immediately upon such termination of
employment.
2
3
(f) If Optionee voluntarily terminates his employment with the
Company and its subsidiaries upon a Change of Control, Optionee shall have the
right to retain the portion of the Option that is exercisable on the date of
termination of employment. If Optionee terminates his employment with the
Company and its subsidiaries more than six (6) months after the occurrence of a
Change of Control, Section 6(e) shall apply to the Option instead of this
Section 6(f).
(g) Notwithstanding the foregoing, this Option shall
automatically and without notice terminate and become null and void on the tenth
anniversary of the date as of which the Option is granted.
(h) To the extent not previously exercised, (i) the Option
shall terminate immediately in the event of (1) the liquidation or dissolution
of the Company, or (2) any reorganization, merger, consolidation or other form
of corporate transaction in which the Company does not survive, unless the
successor corporation, or a parent or subsidiary of such successor corporation,
assumes the Option or substitutes an equivalent option or right pursuant to
Section 10(c) of the Plan, and (ii) the Committee or the Board in its sole
discretion may by written notice ("cancellation notice") cancel, effective upon
the consummation of any corporate transaction described in Subsection 8(b)(i) of
the Plan in which the Company does survive, the Option (or portion thereof) that
remains unexercised on such date. The Committee or the Board shall give written
notice of any proposed transaction referred to in this Section 6(h) a reasonable
period of time prior to the closing date for such transaction (which notice may
be given either before or after approval of such transaction), in order that
Optionee may have a reasonable period of time prior to the closing date of such
transaction within which to exercise the Option if and to the extent that it
then is exercisable (including any portion of the Option that may become
exercisable upon the closing date of such transaction). The Optionee may
condition his exercise of the Option upon the consummation of a transaction
referred to in this Section 6(h).
7. Transferability. The Option granted hereby is not transferable
otherwise than by will or under the applicable laws of descent and distribution,
and during the lifetime of the Optionee the Option shall be exercisable only by
the Optionee, or the Optionee's guardian or legal representative. In addition,
the Option shall not be assigned, negotiated, pledged or hypothecated in any way
(whether by operation of law or otherwise), and the Option shall not be subject
to execution, attachment or similar process. Upon any attempt to transfer,
assign, negotiate, pledge or hypothecate the Option, or in the event of any levy
upon the Option by reason of any execution, attachment or similar process
contrary to the provisions hereof, the Option shall immediately become null and
void.
8. No Rights of Stockholders. Neither the Optionee nor any personal
representative (or beneficiary) shall be, or shall have any of the rights and
privileges of, a stockholder of the Company with respect to any shares of Stock
purchasable or issuable upon the exercise of the Option, in whole or in part,
prior to the date of exercise of the Option.
9. Acceleration of Exercisability of Option. This Option shall become
immediately fully exercisable in the event of a "Change in Control", as defined
in Section 8(b) of the Plan, that
3
4
occurs while the Optionee is employed by the Company or any of its subsidiaries,
or in the event that the Committee or the Board exercises its discretion to
provide a cancellation notice with respect to the Option pursuant to Section 6
hereof.
10. No Right to Continued Employment. Neither the Option nor this
Agreement shall confer upon the Optionee any right to continued employment or
service with the Company.
11. Registration Rights. The Optionee shall be entitled to certain
piggy-back and demand registration rights as follows:
(a) Piggy-Back Registration. Whenever the Company proposes to
file with the Securities and Exchange Commission (the "Commission"), a
registration statement under the Securities Act for the registration of its
securities (other than a registration statement (x) relating solely to employee
benefit plans or (y) on any registration form including, without limitation,
Form S-4, which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Option Shares), it shall, at
least sixty (60) days prior to such filing, give notice of such proposed filing
to the Optionee at the address set forth herein and shall offer to include in
such registration statement the Option Shares which are then subject to
exercisable Options on the proposed date of filing of such registration
statement. Upon receipt by the Company, not less than thirty (30) days prior to
the proposed filing date, of a request for inclusion of any such shares, the
Company shall include such shares in such registration statement on the terms
and conditions set forth herein, subject to any underwriter's cutback or
lock-up. If the underwriter of the Company's proposed offering with respect to
which the Optionee has made a request pursuant to this Section 14(a) advises the
Company, in the underwriter's reasonable judgment, that such inclusion is likely
to adversely affect the market for the securities being registered for sale by
the Company, the Company may refuse to include any of the Optionee's Shares in
the registration statement filed with respect to such offering.
If, at any time after giving such written notice of the Company's
intention to register any of the Option Shares and prior to the effective date
of the registration statement filed in connection with such registration, the
Company shall determine for any reason not to file the registration statement
wherein the Option Shares would be registered or to delay the registration, at
its sole election, the Company may give written notice of such determination to
the Optionee and thereupon shall be relieved of its obligation to register any
Option Shares issued or issuable in connection with such registration; and in
the case of a determination to delay a registration, the Company shall thereupon
be permitted to delay registering any Option Shares for the same period as the
delay in respect of securities being registered for the Corporation's own
account or the account of others. The Company may, in its sole discretion and
without the consent of the Optionee, withdraw such registration statement and
abandon the proposed offering in which the Optionee had requested to
participate.
The Company shall not be required to include any of the Option Shares
in the registration statement relating to an underwritten offering of the
Company's securities unless the Optionee accepts the terms of the underwriting
as agreed upon between the Company and the underwriters
4
5
selected by it and the Optionee agrees to execute and/or deliver such documents
in connection with such registration as the Company or the managing underwriter
may reasonably request.
(b) Demand Registration. If Optionee's employment is
terminated without Cause (as defined in the employment agreement) or if a Change
of Control occurs, Optionee shall have the right to require the Company or its
successor to register for resale the Option Shares, provided that the Company is
able to utilize a Form S-8 or Form S-3 for such registration. Notwithstanding
the foregoing, should the Company be contemplating a public offering of its
securities at such time, and should piggy-back registration rights not be
available to Optionee under Section 14(a) above, the Company's registration
obligations under this Section 14(b) may be postponed, at the Company's sole
discretion, until the completion of the Company's public offering. Further, the
Company's obligation to register the Option Shares pursuant to this Section
14(b) shall in all cases be subject to an extension or delay by the Company for
one period of up to ninety (90) days if, upon advice of counsel such delay is
advisable and in the best interests of the Company because of the existence of
non-public material information, or to allow the Company to complete any pending
audit of its financial statements.
(c) Withdrawal. The Optionee shall be permitted to withdraw
all or any part of the Option Shares at any time prior to the effective date of
such registration.
(d) Expiration of Registration Rights. The obligations of the
Company to register the Option Shares under this Section 14 shall terminate five
(5) years after the date of this Agreement, unless such obligations terminate
earlier in accordance with the terms of this Agreement.
(e) Cooperation with Company. The Optionee will cooperate with
the Company in all respects in connection with this Section 14, including,
without limitation, timely supplying all information reasonably requested by the
Company and executing and returning all documents reasonably requested in
connection with the registration and sale of the Option Shares.
(f) Expenses. The Company will pay all Registration Expenses
(as defined below) in connection with each registration of the Option Shares
pursuant to the provisions of this Agreement. All Selling Expenses (as defined
below) in connection with each such registration statement shall be borne by the
participating sellers in proportion to the number of shares sold by each, or by
such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree.
12. Law Governing. This Agreement shall be governed in accordance with
and governed by the internal laws of the State of Florida.
13. Interpretation/Provisions of Plan Control. This Agreement is
subject to all the terms, conditions and provisions of the Plan, including,
without limitation, the amendment provisions thereof, and to such rules,
regulations and interpretations relating to the Plan adopted by the Committee or
the Board as may be in effect from time to time. If and to the extent that this
Agreement conflicts or is inconsistent with the terms, conditions and provisions
of the Plan,
5
6
the Plan shall control, and this Agreement shall be deemed to be modified
accordingly. The Optionee accepts the Option subject to all the terms and
provisions of the Plan and this Agreement. The undersigned Optionee hereby
accepts as binding, conclusive and final all decisions or interpretations of the
Committee or the Board upon any questions arising under the Plan and this
Agreement.
14. Notices. Any notice under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and addressed,
in the case of the Company, to the Company's Secretary at 0000 Xxxxxx Xxxxxx
Xxxxx Xxxx., Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000, or if the Company
should move its principal office, to such principal office, and, in the case of
the Optionee, to the Optionee's last permanent address as shown on the Company's
records, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section.
15. Tax Consequences. Set forth below is a brief summary as of the date
of this Option of some of the federal tax consequences of exercise of this
Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE,
AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT
A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of Option. There may be a regular federal income
tax liability upon the exercise of the Option. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the fair market value of the Shares on the date of
exercise over the Exercise Price. If Optionee is an employee, the Company will
be required to withhold from Optionee's compensation or collect from Optionee
and pay to the applicable taxing authorities an amount equal to a percentage of
this compensation income at the time of exercise.
(b) Disposition of Shares. If Shares are held for at least one
year, any gain realized on disposition of the Shares will be treated as
long-term capital gain for federal income tax purposes.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the 12th day of February, 1999.
COMPANY:
MIRACOM CORPORATION
By:
Xxxxx XxXxxxx, President
6
7
Optionee acknowledges receipt of a copy of the Plan and represents that
he or she is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions thereof. Optionee has
reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option, and fully
understands all provisions of the Option.
Dated: OPTIONEE:
By:
Xxxxx X. Xxxxx
7
