Exhibit 10.11
ARBINET HOLDINGS, INC.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of May 24, 1999,
between ARBINET HOLDINGS, INC., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxx, the acting chief executive officer of the Company (the
"Optionee").
The board of directors of the Company (the "Board") has established
the Company's Amended and Restated 1997 Stock Incentive Plan (the "Plan") in
order to provide certain individuals with a favorable opportunity to acquire
shares of the Company's common stock, par value $.001 per share ("Common
Stock").
The Board has determined that the objectives of the Plan will be
furthered by granting to the Optionee a stock option pursuant to the Plan.
In consideration of the foregoing and of the mutual undertakings set
forth in this Agreement, the Company and the Optionee agree as follows:
SECTION 1. Definitions and Incorporation. Unless otherwise defined
herein, the terms used in the Agreement shall have the meanings given to such
terms in the Plan. The Plan is hereby incorporated in and made a part of this
Agreement as if fully set forth herein. The Optionee hereby acknowledges that he
or she has received copy of the Plan.
SECTION 2. Grant of Option; Option Price. Pursuant to the Plan, the
Company hereby grants to the Optionee a stock option (the "Option") to purchase
an aggregate of 313,772.25 shares (the "Shares") of Common Stock. Each
installment of the Option shall be exercisable at a price per Share as set forth
in Schedule 1 attached hereto and hereby made a part hereof (the "Exercise
Price"). It is intended that the Option shall not qualify as an "incentive stock
option" as defined in section 422 of the Internal Revenue Code of 1986, as
amended.
SECTION 3. Exercisability. Subject to the further terms of this
Agreement and the Plan, the right to exercise the Option shall vest in
accordance with Schedule 1 attached hereto and hereby made a part hereof.
Unless earlier terminated pursuant to the provisions of the Plan,
the unexercised portion of the Option shall expire and cease to be exercisable
at 12:01 a.m. on the date which is the fifth anniversary of the date hereof (the
"Expiration Date").
SECTION 4. Method of Exercise. The Option or any part thereof may be
exercised by delivery of a Notice of Exercise substantially in the form attached
hereto and as provided in Article II of the Plan.
SECTION 5. Upon termination of the Optionee's employment with or, as
the case may be, Optionee's association with the Company or a subsidiary or as a
director, consultant or otherwise, by reason of dismissal for cause, the Option
shall terminate and expire. As used herein the term "cause" shall have the
meaning set forth in Section 1.6.5 of the Plan.
SECTION 6. Investment Representations. The Optionee hereby
represents and warrants to and agrees with the Company, as of the date hereof,
as follows:
6.1 Review of Documents. The Optionee acknowledges that the Optionee
has been granted access to and has reviewed carefully the Plan and, before any
exercise of the Option, the Optionee will review such records of the Company as
may be necessary to permit the Optionee to evaluate the merits and risks of an
investment in Common Stock. The Optionee is entering into this Agreement and the
transactions contemplated hereby solely in reliance on the Optionee's own
investigation and such review. The Optionee has had an opportunity to meet with
the officers of the Company subsequent to review of such information to discuss
with them the Optionee's questions concerning the Company and the terms and
conditions of the acquisitions hereunder.
6.2 Acquisition of Shares for Own Account. The Optionee will acquire
the Shares, if at all, pursuant to this Agreement with the Optionee's own funds,
and not with the funds of anyone else. The Shares will be acquired, if at all,
for the Optionee's own account, not as a nominee or agent and not for the
account of any other person or firm. No one else has or will have on any
exercise of the Option any interest, beneficial or otherwise in the Shares to be
acquired on such exercise. The Optionee is not, and prior to any exercise of the
Option will not be, obligated to transfer the Shares or any interest therein to
anyone else and the Optionee does not and will not have any agreement or
understanding to do so. The Optionee will acquire the Shares, if at all, for
investment for an indefinite period and not with a view to the sale or
distribution of any part or all thereof, by public or private sale or other
disposition, and has no intention of selling, granting any participation in or
otherwise distributing or disposing of the Shares
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or any interest therein. The Optionee does not, and on any exercise of the
Option will not, intend to subdivide the Optionee's acquisition of the Shares
with anyone.
6.3 Restricted Nature of Shares. The Optionee is (or will be at the
time of any acquisition of the Shares) able to bear the economic risk of the
investment in such Shares and is aware that the Optionee must be prepared to
hold the Shares received for an indefinite period and that such Shares have not
been registered under the Securities Act of 1933, as amended (the "Act") or any
state securities laws, on the ground that no distribution or public offering of
the Share is to be effected and such Shares will be issued, if at all, by the
Company in connection with transactions not involving any public offering within
the meaning of Section 4(2) of the Act. The Optionee understands that the
Company is relying in part on the Optionee's representations as set forth herein
for purposes of claiming the exemption from registration under the Act provided
by Section 4(2) thereof and that the basis for such exemption may not be present
if, notwithstanding the Optionee's representations herein, the Optionee has in
mind merely acquiring the Shares for resale on the occurrence or nonoccurrence
of some predetermined event. The Optionee has no such intention.
6.4 Information about the Company. The Optionee has carefully
reviewed and will carefully review all the information regarding the Company
access to which has been and will be accorded to the Optionee hereunder, is
thoroughly familiar with the business, operations and properties of the Company
by virtue of such review and of the Optionee's relationship with the Company as
a key employee thereof and has discussed with the officers of the Company any
questions the Optionee may have had with respect to the Company.
6.5 Restrictions on Issuance and on Resales. (a) Optionee
acknowledges and agrees that if the Committee shall at any time determine that
any consent (as defined in Section 3.3.2 of the Plan) is necessary or desirable
as a condition of, or in connection with any exercise of the Option (any such
action being hereinafter referred to as a "plan action"), then such exercise
shall not be effective, in whole or in part, unless and until such consent shall
have been effected or obtained to the full satisfaction of the Committee.
(b) Without in any way limiting the Optionee's representations as
set forth herein, the Optionee further agrees that the Optionee shall in no
event make any disposition of all or any part of or interest in the Shares and
that such Shares shall not be encumbered, pledged, hypothecated, sold or
transferred by the Optionee nor shall the Optionee receive any consideration for
such Shares or for any interest therein from any person, unless and until prior
to any proposed transfer, encumbrance, disposition, pledge,
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hypothecation or sale of any Shares, either (1) a registration statement on form
S-1 or S-8 (or any other form replacing such form or appropriate for the purpose
under the Act) with respect to such share proposed to be transferred or
otherwise disposed of shall be then effective or (2) (i) the Optionee shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a detailed statement of the circumstances surrounding the proposed
disposition, (ii) the Optionee shall have furnished the Company with an opinion
of counsel in form and substance satisfactory to the Company to the effect that
such disposition will not require registration of such Shares under the Act or
qualification of any such shares under any other securities law and (iii) such
opinion of counsel shall have been concurred in by counsel for the Company and
the Company shall have advised the Optionee of such concurrence.
6.6 Shares Will Be "Restricted Securities". The Shares, if and when
issued, will be "restricted securities," as that term is defined in Rule 144
under the Act, and, accordingly, the Shares must be held indefinitely unless
they are subsequently registered under the Act or an exemption from such
registration is available. The Optionee understands and agrees that the Company
is not under any obligation to register the Shares under the Act or to comply
with Regulation A or any other exemption.
6.7 Company May Refuse to Transfer. Notwithstanding the foregoing,
in the event that the Optionee has, in the opinion of counsel for the Company,
acted in any manner not consistent with the representations and agreements of
the Optionee in this Agreement, the Company may refuse to transfer the
Optionee's Shares until such time as counsel for the Company is of the opinion
that such transfer will not require registration of any Shares under the Act or
qualification of any Shares under any other securities law.
6.8 Indemnification. The Optionee hereby agrees to indemnify the
Company and hold it harmless from and against any and all liability, damage,
cost or expense incurred on account of or arising out of (1) any inaccuracy in
any of the representations, warranties or agreements set forth in this Section
6, (2) the disposition of any Share which the Optionee may receive, contrary to
the Optionee's representations, warranties and agreements set forth in this
Section 6 or (3) any action, suit or proceeding based on a claim that said
representations, warranties or agreements were inaccurate or misleading or
otherwise cause for obtaining damages or redress from the Company under the Act.
6.9 Certificates Representing Shares to Be Legended. The Optionee
understands and agrees that certificates representing any Shares received on
exercise of the Option may bear a legend on the face thereof (or on the reverse
thereof with a reference to such legend on the face thereof) substantially in
the form set forth below,
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which legend restricts the sale, transfer or disposition of the Share otherwise
than in accordance with this Agreement:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE ENCUMBERED, PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE CORPORATION AND CONCURRED IN BY THE CORPORATION'S COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR SUCH
TRANSACTION COMPLIES WITH RULES PROMULGATED BY THE SECURITIES AND
EXCHANGE COMMISSION UNDER SAID ACT. IN ADDITION, SALE, TRANSFER,
ENCUMBRANCE, HYPOTHECATION, GIFT OR OTHER DISPOSITION OR ALIENATION
OF SUCH SHARES OR ANY INTEREST THEREIN IS RESTRICTED BY AND SUBJECT
TO A STOCK OPTION AGREEMENT DATED AS OF MAY 24, 1999 A COPY OF
WHICH MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE CORPORATION
AND ALL OF THE PROVISIONS OF WHICH ARE INCORPORATED BY REFERENCE IN
THIS CERTIFICATE AND MAY ADDITIONALLY BE SUBJECT TO THE
RESTRICTIONS SET FORTH IN A STOCKHOLDERS AGREEMENT BETWEEN THE
HOLDER AND THE COMPANY.
SECTION 7. Repurchase by Company. Upon termination of the Optionee's
employment or association with the Company or a subsidiary or as a director,
consultant or otherwise, by reason of dismissal as a result of (i) perpetration
of an intentional and knowing fraud against or affecting the Company or any
customer, client, agent, or employee thereof; or (ii) conviction (including
conviction on a nolo contendere plea) of a felony or any crime involving, fraud,
dishonesty or moral turpitude, the Company shall have the right at any time to
repurchase the Shares received by the Optionee (notwithstanding any subsequent
sale of such Shares by the Optionee) or this Option. The repurchase price
payable, in the case of the Shares (or any portion thereof), shall be equal to
the Exercise Price paid therefor and, in the case of Options, shall be $.01 per
Option.
SECTION 8. Plan Provisions to Prevail. This Agreement is subject to
all of the terms and provisions of the Plan. Without limiting the generality of
the foregoing,
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by entering into this Agreement the Optionee agrees that no member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any award thereunder or this Agreement. In the event
that there is any inconsistency between the provisions of this Agreement and of
the Plan, the provisions of the Plan shall govern.
SECTION 9. Termination of Agreements; Release. (a) Effective as of
the date hereof, any and all agreements between the Optionee and the Company for
or relating to the grant to Optionee of any option to purchase shares of Common
Stock (any and each such agreement a "Prior Agreement") are hereby terminated
and of no further force or effect.
(b) Optionee on behalf of itself and its respective
affiliates, predecessors, heirs, executors, administrators, successors and
assigns (collectively, "Optionee Releasors"), for due consideration, receipt of
which is hereby acknowledged, does hereby release, remise, forever discharge and
covenant not to xxx any of the Company, its officers, directors, stockholders,
employees, agents, affiliates, predecessors, successors and assigns
(individually a "Company Releasee" and collectively, the "Company Releasees"),
from all actions, causes of action, suits, debts, dues, sums of money, accounts,
covenants, contracts, controversies, agreements, promises, damages, judgments
and claims (including, without limitation, claims for litigation costs and
attorneys' fees, expenses and disbursements), executions and demands whatsoever,
in law, admiralty or equity, which the Optionee Releasors ever had, now have or
hereafter can, shall or may have against any Company Releasee through the date
hereof, for, upon, or by reason of any matter, cause or thing whatsoever,
including, without limitation, claims for installment and incremental payments
and other matters arising out of any Prior Agreement.
SECTION 10. Notices. Any notice to be given to the Company hereunder
shall be in writing and shall be addressed to ArbiNet Holdings, Inc., 000 Xxxx
00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as
the Company may hereafter designate to the Optionee by notice as provided in
this Section 11. Any notice to be given to the Optionee hereunder shall be
addressed to the Optionee at the address set forth beneath such Optionee's
signature hereto, or at such other address as the Optionee may hereafter
designate to the Company by notice as provided herein. A notice shall be deemed
to have been duly given when personally delivered or mailed by registered or
certified mail to the party entitled to receive it.
SECTION 11. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and the successors and
assigns of the
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Company and, to the extent consistent with Section 5 of this Agreement and with
the Plan, the heirs and personal representatives of the Optionee.
SECTION 12. Governing Law. This Agreement shall be interpreted,
construed and administered in accordance with the laws of the State of Delaware.
SECTION 13. Entire Agreement. This Agreement (subject to the
provisions of the Plan) contains the entire agreement among the parties relating
to the subject matter hereof and there are no other or further agreements
outstanding not specifically mentioned herein; provided, however, that the
parties may by agreement amend and supplement this Agreement in writing from
time to time as provided herein. The parties agree that all options to purchase
shares of capital stock of the Company granted to Optionee prior to the date
hereof have expired and shall be deemed canceled and are of no further force or
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first written above.
ARBINET HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
/s/ Xxxxxxx Xxxxx
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Xxxxxxx X. Xxxxx
SCHEDULE 1
RIGHT TO EXERCISE
1. Subject to the conditions set forth in this Agreement, the right to
exercise the Option with respect to twenty five percent (25%) of the
Shares shall vest on the date which is one month (the "One Month
Anniversary") from the date hereof, and thereafter, the right to exercise
the Option with respect to the remaining seventy five percent (75%) of the
Shares shall vest, monthly, in equal installments, over the three month
period commencing on the date which is one month after the One Month
Anniversary; provided, however, that the right to exercise all options
shall vest upon the hiring of a permanent chief executive officer of the
Company. The per share Exercise Price with respect to the Shares shall be
$.11.
FORM OF NOTICE OF EXERCISE
TO: ARBINET HOLDINGS, INC.
000 X. 00XX Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
FROM: ______________________________________
RE: Notice of Exercise of Stock Option
DATE: ______________________________________
This letter shall constitute the written notice of exercise in accordance with
the terms of the Stock Option Agreement dated as of ____________ (the "Stock
Option Agreement") between Arbinet Holdings, Inc. (the "Company") and me,
required by terms of the Stock Option Agreement.
I hereby advise the Company that by means of this notice of exercise, I wish to
purchase, effective as of the date hereof, __________ shares of Common Stock at
an exercise price of $___________ per share under the Stock Option Agreement.
(please check appropriate box below)
|_| I am enclosing a check for a total of $_________ for such shares.
|_| I am exercising the Option (as defined in the Stock Option Agreement) on a
"cashless" basis as provided in Section 2.4.3 of the Plan (as defined in the
Stock Option Agreement).
I authorize that the certificate representing said shares to be issued in the
name(s) of:
Name _____________________________________________________________
Address __________________________________________________________
__________________________________________________________
Social Security Number ___________________________________________
(May be the name and address of Undersigned or Undersigned and Spouse.)
___________________________________
OPTIONEE (signature)
Receipt of Notice of Exercise is hereby acknowledged on ______________________
ARBINET HOLDINGS, INC.
By:____________________________
Name: _________________________
Title: Secretary
