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EXHIBIT 4.07
GLOBALCENTER INC.
MANAGEMENT STOCK PLAN
EFFECTIVE AS OF JANUARY 7, 2000
January 7, 2000
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SECTION 1. INTRODUCTION......................................................... 1
SECTION 2. DEFINITIONS.......................................................... 1
(a) "Affiliate"................................................. 1
(b) "Award"..................................................... 1
(c) "Board"..................................................... 1
(d) "Change In Control"......................................... 1
(e) "Code"...................................................... 2
(f) "Committee"................................................. 2
(g) "Common Stock".............................................. 2
(h) "Company"................................................... 2
(i) "Consultant"................................................ 3
(j) "Director" ................................................. 3
(k) "Disability"................................................ 3
(1) "Employee".................................................. 3
(m) "Exchange Act".............................................. 3
(n) "Exercise Price"............................................ 3
(o) "Fair Market Value"......................................... 3
(p) "Grant"..................................................... 3
(q) "Incentive Stock Option" or "ISO............................ 3
(r) "Nonstatutory Stock Option" or "NSO"........................ 3
(s) "Option".................................................... 4
(t) "Optionee".................................................. 4
(u) "Parent".................................................... 4
(v) "Participant"............................................... 4
(w) "Plan"...................................................... 4
(x) "Qualified Public Offering" ................................ 4
(y) "Restricted Stock .......................................... 4
(z) "Restricted Stock Agreement"................................ 4
(aa) "Securities Act"............................................ 4
(bb) "Service"................................................... 4
(cc) "Shares" and "Stock"........................................ 4
(dd) "Stock Option Agreement".................................... 4
(ee) "Subsidiary"................................................ 4
(ff) "Termination Without Cause"................................. 4
(gg) "Tracking Stock" ........................................... 5
(hh) "10-Percent Shareholder".................................... 5
SECTION 3. ADMINISTRATION....................................................... 5
(a) Committee Composition....................................... 5
(b) Authority of the Committee.................................. 5
(c) Indemnification............................................. 6
(d) Financial Reports........................................... 6
SECTION 4. ELIGIBILITY.......................................................... 6
(a) General Rules............................................... 6
(b) Incentive Stock Options .................................... 6
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SECTION 5. SHARES SUBJECT TO PLAN............................................... 7
(a) Basic Limitation............................................ 7
(b) Additional Shares........................................... 7
(c) Dividend Equivalents........................................ 7
(d) Limits on Options and SARs.................................. 7
(e) Limits on Restricted Stock.................................. 7
SECTION 6. TERMS AND CONDITIONS OF OPTIONS ..................................... 7
(a) Stock Option Agreement...................................... 7
(b) Number of Shares............................................ 7
(c) Exercise Price.............................................. 7
(d) Exercisability and Term..................................... 7
(e) Modifications or Assumption of Options...................... 8
(f) Transferability of Options.................................. 8
(g) Restrictions on Transfer.................................... 8
SECTION 7. PAYMENT FOR OPTION SHARES............................................ 8
(a) General Rule................................................ 8
(b) Same Day Sale............................................... 8
SECTION 8. TERMS AND CONDITIONS FOR AWARDS OF RESTRICTED STOCK.................. 9
(a) Time, Amount and Form of Awards............................. 9
(b) Restricted Stock Agreement.................................. 9
(c) Payment for Restricted Stock................................ 9
(d) Vesting Conditions ......................................... 9
(e) Assignment or Transfer of Restricted Stock ................. 9
(f) Trusts...................................................... 9
(g) Voting and Dividend Rights ................................. 9
SECTION 9. ADJUSTMENT UPON CERTAIN EVENTS ..................................... 10
(a) Generally.................................................. 10
(b) Merger, Reorganization or Change in Control................ 10
(c) Tracking Stock............................................. 10
(d) Participant Rights......................................... 10
SECTION 10. LIMITATIONS ON RIGHTS............................................... 10
(a) Retention Rights .......................................... 10
(b) Stockholders' Rights....................................... 11
(c) Regulatory Requirements.................................... 11
SECTION 11. WITHHOLDING TAXES................................................... 11
(a) General.................................................... 11
(b) Share Withholding.......................................... 11
SECTION 12. DURATION AND AMENDMENTS ............................................ 11
(a) Term of the Plan........................................... 11
(b) Right to Amend or Terminate the Plan....................... 11
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SECTION 13. EXECUTION........................................................... 12
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GLOBALCENTER INC.
MANAGEMENT STOCK PLAN
EFFECTIVE AS OF JANUARY 7, 2000
SECTION 1. INTRODUCTION.
The Company's Board of Directors adopted this Plan as of January 7, 2000.
The Board of Directors of Global Crossing Ltd. ratified this Plan as of April
12, 2000. To the extent Incentive Stock Options will be granted under the Plan,
the stockholders of the Company and Global Crossing Ltd. will approve the Plan
pursuant to the rules of Code Section 422. The Plan is effective as of January
7, 2000 (the "Effective Date").
The purpose of the Plan is to promote the long-term success of the Company
and the creation of shareholder value by offering Key Employees an opportunity
to acquire a proprietary interest in the success of the Company, or to increase
such interest, and to encourage such selected persons to continue to provide
services to the Company and to attract new individuals with outstanding
qualifications.
The Plan seeks to achieve this purpose by providing for Options (which may
constitute Incentive Stock Options or Nonstatutory Stock Options) and Awards of
Restricted Stock.
The Plan shall be governed by, and construed in accordance with, the laws
of the State of California (except its choice-of-law provisions). Capitalized
terms shall have the meaning provided in Section 2 unless otherwise provided in
this Plan or Stock Option Agreement or Restricted Stock Agreement.
SECTION 2. DEFINITIONS.
(a) "Affiliate" means any entity other than a Subsidiary, if the Company
and/or one or more Subsidiaries own not less than 50% of such entity. For
purposes of determining an individual's "Service," this definition shall include
any entity other than a Subsidiary, if the Company, a Parent and/or one or more
Subsidiaries own not less than 50% of such entity.
(b) "Award" means any award of an Option or Restricted Stock under the
Plan.
(c) "Board" means the Board of Directors of Global Crossing Ltd., as
constituted from time to time.
(d) "Change In Control" except as may otherwise be provided in the Stock
Option Agreement or Restricted Stock Agreement, means the occurrence of any of
the following:
(i) any Person (other than a Person holding securities representing
10% or more of the combined voting power of the Company's outstanding
securities as of the Effective Date, the Company, any trustee or other
fiduciary holding securities under any of the Company's employee benefit
plans, or any company owned, directly or indirectly,
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by the Company's stockholders in substantially the same proportions as
their ownership of the Company's stock), becomes the Beneficial Owner,
directly or indirectly, of the Company's securities, representing 30% or
more of the combined voting power of the Company's then outstanding
securities;
(ii) during any period of twenty-four months (not including any
period prior to the Effective Date), individuals who at the beginning of
such period constitute the Board of Directors, and any new director (other
than (A) a director nominated by a Person who has entered into an agreement
with the Company to effect a transaction described in (i), (iii) or (iv) of
this definition, (B) a director nominated by any Person (including the
Company) who publicly announces an intention to take or to consider taking
actions (including, but not limited to, an actual or threatened proxy
contest) which if consummated would constitute a Change in Control or (C) a
director nominated by any Person who is the Beneficial Owner, directly or
indirectly, of securities representing 10% or more of the combined voting
power of the Company's securities) whose election by the Board or
nomination for election by the Company's stockholders was approved in
advance by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority thereof;
(iii) The Company is merged or consolidated with any other company,
other than a merger or consolidation which would result in the Company's
stockholders immediately prior thereto continuing to own (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the
Company's voting securities or the voting securities of such surviving
entity outstanding immediately after such merger or consolidation; or
(iv) The complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets, other than the Company's liquidation into a wholly-owned
subsidiary.
For the purposes of this definition the term "Beneficial Owner" means
a "beneficial owner," as such term is defined in Rule 13d-3 under the
Exchange Act, and "Person" means a "person," as such term is used for
purposes of Section 13(d) or Section 14(d) of the Exchange Act.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means a committee consisting of one or more members of the
Board that is appointed by the Board (as described in Section 3) to administer
the Plan.
(g) "Common Stock" means the Company's common stock, $0.001 par value per
Share.
(h) "Company" means GlobalCenter Inc., a Delaware corporation.
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(i) "Consultant" means an individual who performs bona fide services to
the Company, a Parent, a Subsidiary or an Affiliate other than as an Employee or
Director or Non-Employee Director.
(j) "Director" means a member of the Company's Board of Directors.
(k) "Disability" means an illness or disability which has rendered the
Employee or Director unable to perform on a full-time basis the duties of his or
her employment for a period of more than twelve months during any twenty-four -
month period.
(l) "Employee" means any individual who is a common-law employee of the
Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(n) "Exercise Price" means the amount for which an Option may be
exercised, as specified in the applicable Stock Option Agreement.
(o) "Fair Market Value" means the market price of Stock, determined by the
Committee as follows:
(i) If the Stock were traded over-the-counter on the date in
question but were not classified as a national market issue, then the Fair
Market Value shall be equal to the mean between the last reported
representative bid and asked prices quoted by the NASDAQ system for such
date;
(ii) If the Stock were traded over-the-counter on the date in
question and were classified as a national market issue, then the Fair
Market Value shall be equal to the last-transaction price quoted by the
NASDAQ system for such date;
(iii) If the Stock were traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported by the applicable composite transactions report for such date; and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good faith on
such basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the Committee
shall be based on the prices reported in the Wall Street Journal. Such
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determination shall be conclusive and binding on all persons.
(p) "Grant" means any grant of an Option under the Plan.
(q) "Incentive Stock Option" or "ISO" means an incentive stock option
described in Code section 422(b).
(r) "Nonstatutory Stock Option" or "NSO" means a stock option that is not
an ISO.
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(s) "Option" means an ISO or NSO granted under the Plan entitling the
Optionee to purchase Shares.
(t) "Optionee" means an individual, estate or other entity that holds an
Option.
(u) "Parent" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if each of the corporations other
than the Company owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain. A corporation that attains the status of a Parent on a date after
the adoption of the Plan shall be considered a Parent commencing as of such
date.
(v) "Participant" means an individual or estate or other entity that holds
an Award.
(w) "Plan" means this GlobalCenter Inc. Management Stock Plan as it may be
amended from time to time.
(x) "Qualified Public Offering" means a bona fide initial public offering
of the Company's stock listed on a public exchange and/or a bona fide offering
by Global Crossing Ltd. of the Tracking Stock listed on a public exchange.
(y) "Restricted Stock" means a Share awarded under the Plan.
(z) "Restricted Stock Agreement" means the agreement described in Section
8 evidencing each Award of Restricted Stock.
(aa) "Securities Act" means the Securities Act of 1933, as amended.
(bb) "Service" means service as an Employee, Director, Non-Employee
Director or Consultant.
(cc) "Shares" and "Stock" shall be used interchangeably to mean one share
of Company Common Stock or one share of Tracking Stock issued by Global Crossing
Ltd.
(dd) "Stock Option Agreement" means the agreement described in Section 6
evidencing each Grant of an Option.
(ee) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain. A corporation
that attains the status of a Subsidiary on a date after the adoption of the Plan
shall be considered a Subsidiary commencing as of such date.
(ff) "Termination Without Cause" shall mean termination from Service for
any reason other than:
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(i) conviction of a felony; or conviction of a crime of moral
turpitude which causes serious economic injury or serious injury to the
Company's reputation; or
(ii) material breach of the Proprietary Information Agreement
attached hereto as Exhibit "A" and incorporated herein by reference; or
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(iii) fraud or embezzlement; intentional misconduct or gross
negligence which has caused serious and demonstrable injury to the Company
or its affiliates; or
(iv) egregious performance or failure to perform Employee or
Director's duties; provided that a failure to achieve performance
objectives shall not by itself constitute grounds for Termination for
Cause; or
(v) inability to perform duties by reason of a final, non-
appealable determination by a court or arbitration board.
(gg) "Tracking Stock" means a tracking stock issued by Global Crossing
Ltd., registered on a publicly traded exchange, to track the business of the
Company. Issuance of the Tracking Stock is subject to approval of the holders of
Global Crossing Ltd. common stock pursuant to Bermuda law.
(hh) "10-Percent Shareholder" means an individual who owns more than ten
percent (10%) of the total combined voting power of all classes of outstanding
stock of the Company, its Parent or any of its subsidiaries. In determining
stock ownership, the attribution rules of section 424(d) of the Code shall be
applied
SECTION 3. ADMINISTRATION.
(a) Committee Composition. A Committee appointed by the Board shall
administer the Plan. The Board shall designate one of the members of the
Committee as chairperson. If no Committee has been approved, the entire Board
shall constitute the Committee. Members of the Committee shall serve for such
period of time as the Board may determine and shall be subject to removal by the
Board at any time. The Board may also at any time terminate the functions of the
Committee and reassume all powers and authority previously delegated to the
Committee.
With respect to officers or directors subject to Section 16 of the Exchange
Act, the Committee shall consist of those individuals who shall satisfy the
requirements of Rule 16b-3 (or its successor) under the Exchange Act with
respect to Awards granted to persons who are officers or directors of the
Company under Section 16 of the Exchange Act.
The Board may also appoint one or more separate committees of the Board,
each composed of one or more directors of the Company who need not qualify under
Rule 16b-3, who may administer the Plan with respect to Key Employees who are
not considered officers or directors of the Company under Section 16 of the
Exchange Act, may grant Awards under the Plan to such Key Employees and may
determine all terms of such Awards.
(b) Authority of the Committee. Subject to the provisions of the Plan and
approval by the Global Crossing Ltd. Compensation Committee, the Committee shall
have full authority
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and discretion to take any actions it deems necessary or advisable for the
administration of the Plan. Such actions shall include:
(i) selecting Employees, Directors and Consultants who are to
receive Awards under the Plan;
(ii) determining the type, number, vesting requirements and other
features and conditions of such Awards;
(iii) interpreting the Plan; and
(iv) making all other decisions relating to the operation of the
Plan.
The Committee may adopt such rules or guidelines, as it deems appropriate
to implement the Plan. Except as provided above, the Committee's determinations
under the Plan shall be final and binding on all persons.
(c) Indemnification. Each member of the Committee, or of the Board, shall
be indemnified and held harmless by the Company against and from (i) any loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by
him or her in connection with or resulting from any claim, action, suit, or
proceeding to which he or she may be a party or in which he or she may be
involved by reason of any action taken or failure to act under the Plan or any
Stock Option Agreement or any Restricted Stock Agreement, and (ii) from any and
all amounts paid by him or her in settlement thereof, with the Company's
approval, or paid by him or her in satisfaction of any judgment in any such
claim, action, suit, or proceeding against him or her, provided he or she shall
give the Company an opportunity, at its own expense, to handle and defend the
same before he or she undertakes to handle and defend it on his or her own
behalf; provided, further, that such member shall not be indemnified for actions
taken by him or her in bad faith. The foregoing right of indemnification shall
not be exclusive of any other rights of indemnification to which such persons
may be entitled under the Company's Certificate of Incorporation or Bylaws, by
contract, as a matter of law, or otherwise, or under any power that the Company
may have to indemnify them or hold them harmless.
(d) Financial Reports. To the extent required by applicable law, the
Company shall furnish to Optionees the Company's summary financial information
including a balance sheet regarding the Company's financial condition and
results of operations, unless such Optionees have duties with the Company that
assure them access to equivalent information. Such financial statements need not
be audited.
SECTION 4. ELIGIBILITY.
(a) General Rules. Only Employees, Directors and Consultants shall be
eligible for Awards by the Committee.
(b) Incentive Stock Options. Only Employees who are common-law employees
of the Company shall be eligible for the grant of ISOs. In addition, an Employee
who is a 10-Percent Shareholder shall not be eligible for the grant of an ISO
unless the requirements set forth in section 422(c)(5) of the Code are
satisfied.
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SECTION 5. SHARES SUBJECT TO PLAN.
(a) Basic Limitation. The stock issuable under the Plan shall be
authorized but unissued Stock or treasury Stock. The aggregate number of Stock
reserved for Awards under the Plan shall not exceed 10% of the outstanding Stock
of the Company upon adoption of the Plan, subject to adjustment pursuant to
Section 9.
(b) Additional Shares. If Awards are forfeited or terminate for any other
reason before being exercised, then the Shares underlying such Awards shall
again become available for Awards under the Plan.
(c) Dividend Equivalents. Any dividend equivalents distributed under the
Plan shall not be applied against the number of Shares available for Awards.
(d) Limits on Options and SARs. No Employee, Director or Consultant shall
receive Options and/or SARs to purchase Shares during any fiscal year covering
in, excess of 5.5% of the outstanding Shares of the Company upon adoption of the
Plan, subject to adjustment pursuant to Section 9.
(e) Limits on Restricted Stock. No Employee, Director or Consultant shall
receive Award(s) of Restricted Stock during any fiscal year covering in excess
of 5.5% of the outstanding Shares of the Company upon adoption of the Plan,
subject to adjustment pursuant to Section 9.
SECTION 6. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreement. Each Grant under the Plan shall be evidenced
by a Stock Option Agreement between the Optionee and the Company. Such Option
shall be subject to all applicable terms and conditions of the Plan and may be
subject to any other terms and conditions that the Committee deems appropriate
for inclusion in a Stock Option Agreement. The provisions of the various Stock
Option Agreements entered into under the Plan need not be identical. A Stock
Option Agreement may provide that new Options will be granted automatically to
the Optionee when he or she exercises the prior Options. The Stock Option
Agreement shall also specify whether the Option is an ISO or an NSO.
(b) Number of Shares. Each Stock Option Agreement shall specify the number
of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with Section 9.
(c) Exercise Price. An Option's Exercise Price shall be established by the
Committee and set forth in a Stock Option Agreement. To the extent required by
applicable law the Exercise Price of an ISO shall not be less than 100% of the
Fair Market Value (110% for 10-Percent Shareholders) of a Share on the date of
Grant.
(d) Exercisability and Term. Each Stock Option Agreement shall specify the
date when all or any installment of the Option is to become exercisable. The
Stock Option Agreement shall also specify the term of the Option; provided that
the term of an ISO shall in no event exceed ten (10) years from the date of
Grant. An ISO that is granted to a 10-Percent Shareholder
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shall have a maximum term of five (S) years. No Option can be exercised after
the expiration date provided in the applicable Stock Option Agreement. A Stock
Option Agreement may provide for accelerated exercisability in the event of the
Optionee's death, Disability or other events and may provide for expiration
prior to the end of its term in the event of the termination of the Optionee's
Service. In no event shall the Company be required to issue fractional Shares
upon the exercise of an Option.
(e) Modifications or Assumption of Options. Within the limitations of the
Plan, the Committee may modify, extend or assume outstanding options or may
accept the cancellation of outstanding options (whether granted by the Company
or by another issuer) in return for the grant of new Options for the same or a
different number of Shares and at the same or a different Exercise Price. The
foregoing notwithstanding, no modification of an Option shall, without the
consent of the Optionee, alter or impair his or her rights or obligations under
such Option.
(f) Transferability of Options. Except as otherwise provided in the
applicable Stock Option Agreement and then only to the extent permitted by
applicable law, no Option shall be transferable by the Optionee other than by
will or by the laws of descent and distribution. Except as otherwise provided in
the applicable Stock Option Agreement, an Option may be exercised during the
lifetime of the Optionee only or by the guardian or legal representative of the
Optionee.
(g) Restrictions on Transfer. Any Shares issued upon exercise of an Option
shall be subject to such rights of repurchase, rights of first refusal and other
transfer restrictions as the Committee may determine. Such restrictions shall
apply in addition to any restrictions that may apply to holders of Stock
generally and shall also comply to the extent necessary with applicable law.
SECTION 7. PAYMENT FOR OPTION SHARES.
(a) General Rule. The entire Exercise Price of Shares issued upon exercise
of Options shall be payable in cash at the time when such Shares are purchased,
except as follows:
(i) In the case of an ISO granted under the Plan, payment shall be
made only pursuant to the express provisions of the applicable Stock Option
Agreement. The Stock Option Agreement may specify that payment may be made
in any form(s) described in this Section 7.
(ii) In the case of an NSO granted under the Plan, the Committee may in
its discretion, at any time accept payment in any form(s) described in this
Section 7.
(b) Same Day Sale. Following a Qualified Public Offering, by delivery (on a
form prescribed by the Company) of an irrevocable direction to a securities
broker to sell Shares and to deliver all or part of the sale proceeds to the
Company in payment of the aggregate exercise price.
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SECTION 8. TERMS AND CONDITIONS FOR AWARDS OF RESTRICTED STOCK.
(a) Time, Amount and Form of Awards. Awards under the Plan may be granted
in the form of Restricted Stock.
(b) Restricted Stock Agreement. Each Award of Restricted Stock under the
Plan shall be evidenced by a Restricted Stock Agreement between the Participant
and the Company. Such Award shall be subject to all applicable terms and
conditions of the Plan and may be subject to any other terms and conditions that
are not inconsistent with the Plan and that the Committee deems appropriate for
inclusion in a Restricted Stock Agreement. The provisions of the various
Restricted Stock Agreements entered into under the Plan need not be identical.
(c) Payment for Restricted Stock. Restricted Stock may be issued with or
without cash consideration under the Plan.
(d) Vesting Conditions. Each Award of Restricted Stock shall become
vested, in full or in installments, upon satisfaction of the conditions
specified in the Restricted Stock Agreement. A Restricted Stock Agreement may
provide for accelerated vesting in the event of the Participant's death,
Disability or retirement or other events.
(e) Assignment or Transfer of Restricted Stock. Except as provided in
Section 12, or in a Restricted Stock Agreement, or as required by applicable
law, a Restricted Stock granted under the Plan shall not be anticipated,
assigned, attached, garnished, optioned, transferred or made subject to any
creditor's process, whether voluntarily, involuntarily or by operation of law.
Any act in violation of this Section 8(e) shall be void. However, this Section
8(e) shall not preclude a Participant from designating a beneficiary who will
receive any outstanding Restricted Stocks in the event of the Participant's
death, nor shall it preclude a transfer of Restricted Stocks by will or by the
laws of descent and distribution.
(f) Trusts. Neither this Section 8 nor any other provision of the Plan
shall preclude a Participant from transferring or assigning Restricted Stock to
(a) the trustee of a trust that is revocable by such Participant alone, both at
the time of the transfer or assignment and at all times thereafter prior to such
Participant's death, or (b) the trustee of any other trust to the extent
approved in advance by the Committee in writing. A transfer or assignment of
Restricted Stock from such trustee to any person other than such Participant
shall be permitted only to the extent approved in advance by the Committee in
writing, and Restricted Stock held by such trustee shall be subject to all of
the conditions and restrictions set forth in the Plan and in the applicable
Restricted Stock Agreement, as if such trustee were a party to such Agreement.
(g) Voting and Dividend Rights. The holders of Restricted Stock awarded
under the Plan shall have the same voting, dividend and other rights as the
Company's other stockholders. A Restricted Stock Agreement, however, may require
that the holders of Restricted Stock invest any cash dividends received in
additional Restricted Stock. Such additional Restricted Stock shall be subject
to the same conditions and restrictions as the Award with respect to which the
dividends were paid. Such additional Restricted Stock shall not reduce the
number of Shares available under Section 5.
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SECTION 9. ADJUSTMENT UPON CERTAIN EVENTS.
(a) Generally. In the event of any change in the outstanding Shares after
the Effective Date by reason of any Share dividend or split, reorganization,
recapitalization, merger, consolidation, spin-off, combination or exchange of
Shares or other corporate exchange or any distribution to shareholders of Shares
other than regular cash dividends or any transactions similar to the foregoing,
the Committee shall make such appropriate and equitable adjustment as it deems
necessary in the number and kind of Shares or other securities issued or
reserved for issuance under the Plan or pursuant to an outstanding Award or in
the Exercise Price of any outstanding Award. Any such adjustment made by the
Committee shall be final and binding upon the Optionee, the Company and all
other interested persons.
(b) Merger, Reorganization or Change in Control. In the event the Company
is party to a merger or other reorganization, or in the event of a Change in
Control, outstanding Awards shall be subject to the agreement of merger or
reorganization, and the Committee shall make such appropriate an equitable
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adjustment as it deems necessary in the number and kind of Shares or other
securities issued or reserved for issuance under the Plan or pursuant to an
outstanding Award or in the Exercise Price of any outstanding Award. Any such
adjustment made by the Committee shall be final and binding upon the Optionee,
the Company and all other interested persons.
(c) Tracking Stock. At the discretion of the Optionee, the Option shall be
exercisable either for a percentage of Shares of common stock of the Company or
for a percentage of shares of the Tracking Stock equal to the percentage of
Shares subject to the Option, after taking into account the value of Company
Inter-Group Interests of Global Crossing Ltd. in the Company, subject to such
appropriate and equitable adjustment as the Committee deems necessary in the
number and kind of Shares or other securities issued or reserved for issuance
under the Plan or pursuant to an outstanding Award or in the Exercise Price of
any outstanding Award, but without any adverse effect upon the Optionee. As used
herein, "Inter-Group Interests" has the meaning given in that certain
Certificate of Designations attached as a schedule to the Bye Laws of Global
Crossing Ltd.
(d) Participant Rights. Except as provided in this Section 9, a
Participant shall have no rights by reason of any issue by the Company of stock
of any class or securities convertible into stock of any class, any subdivision
or consolidation of shares of stock of any class, the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class.
SECTION 10. LIMITATIONS ON RIGHTS.
(a) Retention Rights. Neither the Plan nor any Award granted under the
Plan shall be deemed to give any individual a right to remain an employee,
consultant or director of the Company, a Parent, a Subsidiary or an Affiliate.
The Company and its Parents and Subsidiaries and Affiliates reserve the right to
terminate the Service of any person at any time, and for any reason, subject to
applicable laws, the Company's Certificate of Incorporation and Bylaws and a
written employment agreement (if any).
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(b) Stockholders' Rights. A Participant shall have no dividend rights,
voting rights or other rights as a stockholder with respect to any Shares
covered by his or her Award prior to the issuance of a stock certificate for
such Shares. No adjustment shall be made for cash dividends or other rights for
which the record date is prior to the date when such certificate is issued,
except as expressly provided in Section 9.
(c) Regulatory Requirements. Any other provision of the Plan
notwithstanding, the obligation of the Company to issue Shares under the Plan
shall be subject to all applicable laws, rules and regulations and such approval
by any regulatory body as may be required. The Company reserves the right to
restrict, in whole or in part, the delivery of Shares pursuant to any Award
prior to the satisfaction of all legal requirements relating to the issuance of
such Shares, to their registration, qualification or listing or to an exemption
from registration, qualification or listing.
SECTION 11. WITHHOLDING TAXES.
(a) General. A Participant shall make arrangements satisfactory to the
Company for the satisfaction of any withholding tax obligations that arise in
connection with his or her Award. The Company shall not be required to issue any
Shares or make any cash payment under the Plan until such obligations are
satisfied.
(b) Share Withholding. If a public market for the Company's Shares exists,
the Committee may permit a Participant to satisfy all or part of his or her
withholding or income tax obligations by having the Company withhold all or a
portion of any Shares that otherwise would be issued to him or her or by
surrendering all or a portion of any Shares that he or she previously acquired.
Such Shares shall be valued at their Fair Market Value on the date when taxes
otherwise would be withheld in cash. Any payment of taxes by assigning Shares to
the Company may be subject to restrictions, including, but not limited to, any
restrictions required by rules of the Securities and Exchange Commission.
SECTION 12. DURATION AND AMENDMENTS.
(a) Term of the Plan. The Plan, as set forth herein, shall become
effective as of the date of its adoption by the Company's Board of Directors,
subject to ratification by the Board and the stockholders of the Company and
Global Crossing Ltd. In the event that the stockholders of the Company and of
Global Crossing Ltd. fail to approve the Plan within twelve (12) months after
its adoption, any ISOs awarded shall be null and void and no additional ISOs
shall be awarded. To the extent required by applicable law, the Plan shall
terminate on the date that is ten (10) years after its adoption by the Board and
may be terminated on any earlier date pursuant to Section 13(b).
(b) Right to Amend or Terminate the Plan. The Board may amend or terminate
the Plan at any time and for any reason. The termination of the Plan, or any
amendment thereof, shall not affect adversely any Award previously granted under
the Plan. No Awards shall be granted under the Plan after the Plan's
termination. An amendment of the Plan shall be subject to the approval of the
Company's stockholders and the stockholders of Global Crossing Ltd. only to the
extent required by applicable laws, regulations or rules.
11
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SECTION 13. EXECUTION.
To record the adoption of the Plan by the Board, the Company has caused its
duly authorized officer to execute this Plan on behalf of the Company.
GLOBALCENTER INC.
By: ___________________________________
Mark J. Coleman
Executive Vice President & General
Counsel
GLOBAL CROSSING LTD.
By: ____________________________________
James C. Gorton
Senior Vice President & General
Counsel
12
<PAGE>
GLOBALCENTER INC.
MANAGEMENT STOCK PLAN
SUMMARY OF OPTION
GlobalCenter Inc., a Delaware corporation (the "Company") and Global
Crossing Ltd., hereby grant an Option to purchase shares of Company common stock
(the "Options") to the Optionee named below. The terms and conditions of the
Option are set forth in this Summary of Option, in the Non-Statutory Stock
Option Agreement (the "Agreement") and in the Company's Management Stock Plan
(the "Plan").
Grant Date: ((GrantDate))
Vesting Start Date: ((VestingStartDate))
Name of Optionee: ((Optionee))
Optionee's Social Security Number: ((SSN))
Number of Options: In accordance with Section 9 of the Plan, Options to acquire
((NumberOptions)) shares of the common stock of the Company as of the Grant
Date.
Exercise Price per Share: ((Price))
Subject to all the terms of the attached Agreement and the Plan, your right
to exercise Options vests as to twenty-five percent (25%) of the total number of
Options covered by this Agreement, as shown above, on the Vesting Start Date.
Thereafter, the number of Options which you may purchase shall vest at the rate
of twenty five percent (25%) on each of the first three (3) anniversaries of the
Vesting Start Date. In addition, all Options shall become fully vested and
exercisable (a) upon a Change in Control, (b) upon a change in control as
defined in the 1998 Global Crossing Ltd. Stock Incentive Plan, (c) upon your
death while employed by the Company, (d) upon your Disability while employed by
the Company, (e) upon Termination Without Cause, or (f) upon your resignation
due to a material diminution by the Company of your duties without your consent.
The resulting aggregate number of vested Options will be rounded to the nearest
whole number. Subject to the acceleration provisions of this paragraph,
unvested Options will immediately expire upon termination of employment for any
reason. At your discretion, the Options shall be exercisable for either a
percentage of the common stock of the Company or for a percentage of shares of
the Tracking Stock (as defined and further described in the attached Agreement).
[signature page to follow]
<PAGE>
SUMMARY OF OPTIONS
SIGNATURE PAGE
By signing this Summary of Option, you agree to all of the terms and
conditions described in the Summary of Option and the attached Agreement and
Plan.
GLOBAL CROSSING LTD.,
a Bermuda corporation
Name: James C. Gorton
Title: Senior Vice President and General Counsel
GLOBALCENTER INC.
a Delaware corporation
Name: Mark J. Coleman
Title: Executive Vice President and General Counsel
------------------------------------
Optionee's Signature
------------------------------------
Print Name
2
<PAGE>
GLOBALCENTER INC.
MANAGEMENT STOCK PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
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<CAPTION>
<S> <C>
The Plan and The text of the Plan is incorporated in this Agreement by
Other Agreements reference. Certain capitalized terms used in this Agreement
are defined in the Plan. This Agreement, the Plan and, where
applicable, the Employment Agreement, constitute the entire
understanding between you and the Company regarding this
Option. Any other prior agreements, commitments or
negotiations concerning this Option are superseded.
Nonstatutory Stock Option This Option is not an Incentive Stock Option under section 422
of the Internal Revenue Code and will be interpreted
accordingly.
Vesting This Option is only exercisable before it expires and then
only with respect to the vested portion of the Option. This
Option will vest according to the Vesting Schedule set forth
in the attached Summary of Option.
Term Your Option will expire in any event at the close of business
at Company headquarters on the day before the 10th
anniversary of the Grant Date, as shown on the Summary of
Option. The unvested portion of your Option will expire upon
termination of employment, except as provided in the Summary
of Option. The vested portion of your Option will expire one
(1) year after termination of employment.
Leaves of Absence For purposes of this Option, your employment does not
terminate when you go on a bona fide leave of absence, not to
exceed 6 months during any 12 month period, that was approved
by the Company, if the terms of the leave provide for
continued employment crediting, or when continued employment
crediting is required by applicable law. Your employment
terminates in any event when the approved leave ends unless
you immediately return to active work. The Committee
determines which leaves count for this purpose, and when your
employment terminates for all purposes under the Plan.
Notice of Exercise When you wish to exercise this Option, you must notify the
Company by filing the proper "Notice of Exercise" form at the
address given on the form. The notice must specify the portion
of the Option you wish to exercise. The notice will be
effective when full payment of the Option exercise price is
received by
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<CAPTION>
<S> <C>
the Company. For purposes of exercising this Option and selling
the underlying Stock, "you" includes the personal representative
of a legally incapacitated Optionee. If someone other than you wants
to exercise this Option, that person must prove to the Company's
satisfaction that he or she is entitled to do so.
Form of Payment . A notice of exercise must include payment of the Option
exercise price. Payment may be made in one (or a combination)
of the following forms:
. Cash, personal check, a cashier's check or a money order.
. Following a qualified public offering, shares acquired by
exercise of the Options ("Shares") which have already been
owned by the holder for more than six months and which
are surrendered to the Company. The value of such shares,
determined as of the effective date of the Option exercise,
will be applied to the Option exercise price.
. Following a Qualified Public Offering, by delivery (on a
form prescribed by the Company) of an irrevocable direction to
a securities broker to sell Shares and to deliver all or part
of the sale proceeds to the Company payment of the aggregate
exercise price.
Taxes Exercises of this Option will not be allowed unless arrangements are
made that are acceptable to the Committee to pay any withholding or other
taxes that may be due as a result of the Option exercise or sale of Shares
acquired under this Option. In the event any amounts you receive or are
deemed to receive in connection with this Option result in the imposition of
excise tax under Code Section 4999 or any successor provision or comparable
federal, state or local excise tax provision, the Company will make you whole
with a "tax restoration payment" for the entire amount of such excise tax
(including any excise tax on the tax restoration payment), as well as any
attendant income taxes, penalties and/or interest. All calculations of excise
taxes and tax restoration payments shall be made by the firm that is the
Company's auditors prior to a Change in Control.
The Company's Right of First In the event that, prior to a Qualified Public Offering of the
Refusal Company, you propose to sell, pledge or otherwise transfer to
a third party any Shares acquired under this Agreement, or any
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4
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<TABLE>
<CAPTION>
<S> <C>
interest in such Shares, the Company shall have the "Right of
First Refusal" with respect to all (and not less than all) of
such Options. If you desire to transfer Shares acquired under
this Agreement, you must give a written "Transfer Notice" to
the Company describing fully the proposed transfer, including
the number of Shares proposed to be transferred, the proposed
transfer price and the name and address of the proposed
transferee.
The Transfer Notice shall be signed both by you and by the
proposed new transferee and must constitute a binding
commitment of both parties to the transfer of the Shares. The
Company shall have the right to purchase all, and not less
than all, of the Shares on the terms of the proposal described
in the Transfer Notice (subject, however, to any change in
such terms permitted in the next paragraph) by delivery of a
notice of exercise of the Right of First Refusal within thirty
(30) days after the date when the Transfer Notice was received
by the Company. The Company's rights under this subsection
shall be freely assignable, in whole or in part.
If the Company fails to exercise its Right of First Refusal
within thirty (30) days after the date when it received the
Transfer Notice, you may, not later than ninety (90) days
following receipt of the Transfer Notice by the Company,
conclude a transfer of the Shares subject to the Transfer
Notice on the terms and conditions described in the Transfer
Notice. Any proposed transfer on terms and conditions
different from those described in the Transfer Notice, as well
as any subsequent proposed transfer by you, shall again be
subject to the Right of First Refusal and shall require
compliance with the procedure described in the paragraph
above. If the Company exercises its Right of First Refusal,
the parties shall consummate the sale of the Shares on the
terms set forth in the Transfer Notice within ten (10) days
after the exercise; provided, however, that in the event the
Transfer Notice provided that payment for the Shares was to be
made in a form other than lawful money paid at the time of
transfer, the Company shall have the option of paying for the
Shares with lawful money equal to the present value
(discounted at the Applicable Federal Rate as defined in
Section 1274(d)(2) of the Code) of the consideration described
in the Transfer Notice.
The Company's Right of First Refusal shall inure to the
benefit of its successors and assigns and shall be binding
upon any
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<TABLE>
<CAPTION>
<S> <C>
transferee of the Shares.
Right of Repurchase Prior to a Qualified Public Offering of the Company, following
termination of your employment for any reason, the Company
shall have the right to purchase all of those Shares that you
have or will acquire under this Option. If the Company
exercises its right to purchase such Shares, the purchase
price shall be the Fair Market Value of those Shares on the
date of purchase and shall be paid in cash. The Company will
notify you of its intention to purchase such Shares on or
before the later of sixty (60) days after such termination or
six ( 6) months after exercise, and will consummate the
purchase within ten (10) days after such notification. If the
Company is prohibited by applicable law from exercising a
right of repurchase, then the Company may assign such right to
its shareholders and/or a Parent.
Transfer of Option You cannot transfer or assign this Option other than by will
or the laws of descent or distribution or as otherwise
provided below. For instance, you may not sell this Option or
use it as security for a loan. If you attempt to do any of
these things, this Option will immediately become invalid.
Notwithstanding the preceding paragraph, you may transfer this
Option with respect to not less than 25,000 Shares, by gift,
to a Family Member. For this purpose, "Family Member" means
any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person
sharing your household (other than a tenant or employee), a
trust in which these persons have more than fifty percent of
the beneficial interest, a foundation in which these persons
(or you) control the management of assets, and any other
entity in which these persons (or you) own more than fifty
percent of the voting interests. A Family Member transferee is
hereafter referred to as a "Permitted Transferee." Before any
such transfer of this Option is effectuated, however, the
Company must be notified in advance in writing of the terms
and conditions of the proposed transfer and the Company must
determine that the proposed transfer complies with applicable
law and the requirements of the Plan and this Option. Any
purported assignment, alienation, pledge, attachment, sale,
transfer or encumbrance that does not qualify hereunder shall
be void and unenforceable against the Company. The terms of
this Option (including the post-termination of Service
exercise periods) shall apply to your beneficiaries,
executors, administrators and Permitted Transferees (including
the beneficiaries, executors
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6
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
and administrators of the Permitted Transferees), including the
right to agree to any amendment of this Option, except that
Permitted Transferees shall not transfer this Option other than
by will or by the laws of descent and distribution. The Company
is under no obligation to provide notice to a Permitted Transferee
of your termination of Service. This Option shall be exercised only
by you (including, in the case of a transferred Option, by a Permitted
Transferee), or, in the case of your death, by your executor or
administrator (including, in the case of a transferred Option, by the
executor or administrator of the Permitted Transferee. Before a
Permitted Transferee will be allowed to exercise this Option, you must
make acceptable arrangements to pay any withholding or other taxes that
may be due as a result of exercising this Option. Regardless of any
marital property settlement agreement, the Company is not obligated to
honor a notice of exercise from your spouse, nor is the Company obligated
to recognize any spouse's interest in your Option.
Retention Rights Your Option or this Agreement does not give you the right to be retained
by the Company (or any Parent or any Subsidiaries or Affiliates) in
any capacity. The Company (or any Parent and any Subsidiaries or Affiliates)
reserves the right to terminate your employment at any time and for any
reason.
No Stockholder Rights You, your Permitted Transferee, your estate or your heirs have no rights as
a stockholder of the Company until a certificate for your Shares has
been issued. No adjustments are made for dividends or other rights if
the applicable record date occurs before your stock certificate is issued,
except as described in the Plan.
Adjustments In the event of any change in the outstanding Stock after the Effective
Date by reason of any Stock dividend or split, reorganization, recapitalization,
merger, consolidation, spin-off, combination or exchange of Stock or other
corporate exchange or any distribution to shareholders of Stock other than
regular cash dividends or any transactions similar to the foregoing, the
Committee shall make such appropriate and equitable adjustment as it deems
necessary in the number and kind of Shares or other securities issued or
reserved for issuance under the Plan or pursuant to an outstanding Award or
in the Exercise Price of any outstanding Award. Any such adjustment made
by the Committee shall be final and binding upon the Optionee, the Company
and all other interested persons.
In the event the Company is party to a merger or other
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7
<PAGE>
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<CAPTION>
<S> <C>
reorganization, or in the event of a Change in Control, the
Option shall be subject to the agreement of merger or
reorganization (subject, however, to any vesting acceleration
provided for herein or in the attached Summary of Option), and
the Committee shall make such appropriate and equitable
adjustment as it deems necessary in the number and kind of
Shares or other securities issued or reserved for issuance
under the Plan or pursuant to an outstanding Award or in the
Exercise Price of any outstanding Award. Any such adjustment
made by the Committee shall be final and binding upon the
Optionee, the Company and all other interested persons.
Except as provided herein, you shall have no rights by reason
of any issue by the Company of stock of any class or
securities convertible into stock of any class, any
subdivision or consolidation of shares of stock of any class,
the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class.
At the Optionee's discretion, the Option shall be exercisable
for either a percentage of Shares of the common stock of the
Company or a percentage of shares of the Tracking Stock equal
to the percentage of Shares subject to the Option, after
taking into account the value of Company Inter-Group Interests
of Global Crossing Ltd. in the Company, subject to such
appropriate and equitable adjustment as the Committee deems
necessary in the number and kind of Shares or other securities
issued or reserved for issuance under the Plan or pursuant to
an outstanding Award or in the Exercise Price of any
outstanding Award, but without any adverse effect upon the
Optionee. As used herein, "Inter-Group Interests" has the
meaning given in that certain Certificate of Designations
attached as a schedule to the Bye Laws of Global Crossing Ltd.
Legends All certificates representing the Shares issued upon exercise
of this Option shall, where applicable, have endorsed thereon
the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND SHARES TO PURCHASE SUCH
SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A
COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY AND WILL BE
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8
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<CAPTION>
<S> <C>
FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF
RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE."
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
Binding Arbitration Any controversy arising out of or relating to this Agreement, the Summary of Option or
the Plan shall be settled by binding arbitration in accordance with the Employment
Dispute Resolution Rules of the American Arbitration Association and judgment upon the
award rendered may be entered in any court having jurisdiction thereof. The costs of any
such arbitration proceedings shall be borne equally by the Company and Optionee. Neither
party shall be entitled to recover attorney's fees or costs expended in the course of
such arbitration or enforcement of the awarded rendered thereunder. The location for the
arbitration shall be Los Angeles County, California.
Applicable Law This Agreement will be interpreted and enforced under the laws of the State of
California.
</TABLE>
By signing the Summary of Option, you agree to all of the terms and
conditions described in the Summary of Option, this Agreement and the Plan.
9
