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Exhibit 4.9
SAMPLE FIRSTCOM CORPORATION
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the [ ]
day of [ ] (the "Grant Date"), buy and between FIRSTCOM CORPORATION
(the "Grantor") and [ ] (the "Optionee").
W I T N E S S E T H:
WHEREAS, in consideration of services to be rendered by the Optionee to
the Grantor as a member of the Grantor's Board of Directors and certain promises
made by the Optionee to the Grantor, the Grantor desires to grant to the
Optionee an option to purchase [ ____________________________ ] shares of Common
Stock, par value $.001 per share ("Common Stock"), of the Grantor, upon terms
and subject to the conditions hereinafter set forth.
NOW. THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee a stock option (the
"Option") (subject to Section 7 hereof) to purchase from the Grantor [
_____________________ ] shares of Common Stock (after the exercise of the Option
and the acquisition of the shares, the 'Option Shares'), at the price of
[$_____ ] per whole share (the "Option Price").
SECTION 2. EXERCISE OF OPTION
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(a) VESTING; METHOD OF EXERCISE. The Option may be exercised in whole
or in part, commencing on the date hereof and ending on the tenth anniversary
hereof (the 'Expiration Date'), unless sooner terminated as set forth herein, by
the Optionee's delivering to the Grantor a written notice specifying the number
of the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. In lieu of exercising this
Option by delivery of cash or check, the Optionee may make a valid Option
exercise by electing to receive Option Shares equal to the value of this Option
(or the portion thereof being canceled) by surrendering this Option at the
principal office of the Company together with the Exercise Notice (a "NET
EXERCISE"), in which event the Company shall transfer to the Optionee a number
of Option Shares computed using the following formula:
X = Y(A-B)
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A
Where X = the number of option Shares to be issued to such
Optionee.
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Y = the number of Option Shares purchasable by such
Optionee under this Option Agreement the rights to
which are surrendered pursuant to the Net Exercise.
A = the fair market value of one Option Share, (as
determined by the closing price per share of Common
Stock as quoted on Nasdaq or other national exchange
upon which the Company's Common Stock is quoted).
B = the Option Price (as adjusted to the date of such
calculation).
The Optionee shall be deemed to be a holder of the Option Shares
immediately upon, ano to the extent of, the exercise of this Option as set forth
above.
(b) NUMBER OF SHARES EXERCISABLE. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that
may thereafter be purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, the Grantor shall cause one or
more stock certificates evidencing the Optionee's ownership of the Option Shares
to be issued to the Optionee. A legend in substantially the form set forth below
shall be placed upon each stock certificate representing the Option Shares:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended (Act"), or the
securities laws of any state or other jurisdiction, including the
Florida Securities Act, and are restricted securities as that term is
defined under Rule 144 promulgated under the Act. These shares may not
be sold, transferred, pledged, hypothecated or otherwise disposed of in
any manner (a "Transfer") unless they are registered under the Act and
the securities laws of all applicable states and other jurisdictions or
unless the request for Transfer is accompanied by a favorable opinion
of counsel satisfactory to the issuer, stating that such Transfer will
not result in a violation of such laws."
SECTION 4. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall at any time
subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. ANY such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case
of any reorganization of the Grantor or in case the Grantor shall consolidate
with or merge into another corporation or convey all or substantially all of its
assets to another corporation, then, and in each
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such case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise expressly
provided herein, the issuance by the Grantor of shares of its capital stock of
any class, or securities convertible into shares of capital stock of any class,
either in connection with the direct sale or upon the exercise of rights or
warrants to subscribe therefor, or upon conversion of shares or obligations of
the Grantor convertible into such shares or other securities, shall not affect
this Option, and no adjustment by reason thereof shall be made with respect to
the number of or exercise price of Option Shares then subject to this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the generality of
the foregoing the existence of this Option shall not affect in any manner the
right or power of the Grantor to approve or the Grantor to make, authorize or
consummate (i) any or all adjustments, recapitalizations, reorganizations or
other changes in the Grantor's capital structure or its business; (ii) any
merger or consolidation of the Grantor; (iii) any issuance by the Grantor of
debt securities, or preferred or preference stock that would rank above the
Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of a similar character or otherwise.
(e) IMMEDIATE EXERCISE OF OPTION. Unless otherwise provided herein,
each outstanding Option shall become immediately fully exercisable upon the
following:
(i) If there occurs any transaction (which shall include a
series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that stockholders of the Company
immediately before such transaction cease to own at least 51 percent of
the voting stock of the Company or of any entity that results from the
participation of the Company in a reorganization, consolidation,
merger, liquidation or any other form of corporate transaction;
(ii) If the stockholders of the Company shall approve a plan
of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is
subsequently abandoned); or
(iii) If the stockholders of the Company shall approve a plan
for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such
plan is subsequently abandoned).
SECTION 5. NON-TRANSFERABILITY OF OPTION. Without the prior written
consent of the Grantor, this Option may not be transferred in any manner other
than by will or by the laws of descent or distribution and may be exercised
during the lifetime of the Optionee only by the Optionee. The terms of this
Option Agreement shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
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SECTION 6. TERMINATION OF Option. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date, and
(b) If the Optionee dies before the Option terminates pursuant
to Section 6(a) or 6(b), above, the Option shall terminate on the earlier of (i)
the date on which the Option would have lapsed had the Optionee lived and had
his status as a director of the Grantor (i.e., whether the Optionee was a
director on the date of his death or had previously ceased to serve as a
director) remained unchanged; or (ii) 15 months after the date of the Optionee's
death. Upon the Optionee's death, any exercisable Options may be exercised by
the Optionee's legal representative or representatives, by the person or persons
entitled to do so under the Optionee's last will and testament, or, if the
Optionee shall fail to make testamentary disposition of the Option or shall die
intestate, by the person or persons entitled to receive said Option under the
applicable laws of descent and distribution.
SECTION 7. APPROVAL OF STOCK OPTION Plan. The Company intends, at its
next Annual Meeting of Stockholders (the "Annual Meeting'), to submit for
stockholder consideration and approval a Stock Option Plan (the 'Plan"). In the
event that the Plan is approved by the Company's stockholders, then this Option
shall be deemed to be an Incentive Stock Option (within the meaning of the
Internal Revenue Code of 1986, as amended, (the 'Code') have been granted under
and pursuant to the Plan. If, however, the Plan is not so approved at the Annual
Meeting, then this Option shall be deemed to be a non-qualified stock option
(which means any option which is not an Incentive Stock Option under the Code).
SECTION 8. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 9. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the Option
Shares to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Option Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or appropriate to
comply with the provisions of any securities law deemed by the Grantor to be
applicable to the issuance of the Option Shares and are endorsed upon the Option
Share certificates.
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein, all notices
to be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, to each party's respective address as set forth
in the books and records of the Grantor, or to such other address as such party
shall give to the other party hereto by a notice given in accordance with this
Section. Except as otherwise provided in this Agreement, notice shall be
effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
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(b) ASSIGNMENT. This Agreement may not be assigned in whole or in part
by the Optionee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver such
other instruments and do such other acts as may be necessary to effectuate the
intent and purposes of this Agreement.
(d) CAPTIONS. The captions contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit, extend or prescribe
the scope of this Agreement or the intent of any of the provisions hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes the
entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach or
the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability, in whole or in
part, OF any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, phrase or word or of any provisions of this
Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
(h) CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida without regard to any
conflict of law rule or principle that would result in the application of the
laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the heirs, successors, estate and personal representatives of the
Optionee and the Grantor.
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IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
FIRSTCOM CORPORATION
By:
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Name:
Title:
OPTIONEE:
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EXHIBIT A
FIRSTCOM CORPORATION
EXERCISE NOTICE
FirstCom Corporation
SECTION 1. EXERCISE OF Option. Effective as of today, _____________.
199__, the undersigned ("Purchaser") hereby elects to purchase _________ shares
(the 'Shares') of the Common Stock of FirstCom Corporation (the "Company") under
and pursuant to the Stock Option Agreement dated _______________ (the "Option
Agreement"). The purchase price for the Shares shall be as set forth in the
Option Agreement, as adjusted.
SECTION 2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the
Company the full purchase price for the Shares (either in cash, certified or
official bank check, by money order or by the delivery of Shares).
SECTION 3. REPRESENTATIVE OF PURCHASER. Purchaser acknowledges the
Purchaser has received, read and understood the Option Agreement and agrees to
abide by and be bound by its terms and conditions.
SECTION 4. RIGHTS AS STOCKHOLDERS. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the stock certificate evidencing such Shares,
no right to vote or receive dividends or any other right as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. A share certificate for the number of shares so acquired shall be issued
to the Optionee as soon as practicable after exercise of the Option.
SECTION 5. TAX CONSULTATION.Purchaser understands that Purchaser may
suffer Adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
SECTION 6 ENTIRE AGREEMENT.The Option Agreement is incorporated herein
by reference. This Exercise Notice and the Option Agreement constitute the
entire agreement of the parties and superseded in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof.
Submitted by: Accepted by:
OPTIONEE FIRSTCOM CORPORATION
By: By:
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Name:
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Title:
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ADDRESS:
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