REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
URSUS TELECOM CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 65-0398306
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
440 SAWGRASS CORPORATE PARKWAY
SUITE 112
SUNRISE, FLORIDA 33325
(954) 846-7887
(Address of Registrant's principal executive offices)
1998 STOCK INCENTIVE PLAN
OF URSUS TELECOM CORPORATION
(Full title of the plan)
LUCA M. GIUSSANI
PRESIDENT AND CEO
URSUS TELECOM CORPORATION
440 SAWGRASS CORPORATE PARKWAY
SUITE 112
SUNRISE, FLORIDA 33325
(954) 846-7887
(Name, address, including zip code, and
telephone number, including area code, of
Registrant's agent for service)
COPIES TO:
JAMES R. TANENBAUM, ESQ.
MICHAEL BASILE, ESQ.
STROOCK & STROOCK & LAVAN LLP
200 SOUTH BISCAYNE BOULEVARD, 33RD FLOOR
MIAMI, FLORIDA 33131-2385
(305) 789-9384
CALCULATION OF REGISTRATION FEE
==============================================================================
TITLE OF EACH PROPOSED PROPOSED
CLASS OF AMOUNT TO BE MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO REGISTERED OFFERING AGGREGATE REGISTRATION
BE REGISTERED PRICE PER OFFERING FEE
SHARE(1) PRICE(1)
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Common Stock, 1,000,000 $8.89 $8,890,625 $2,622.73
$.01 par value shares(2)
===============================================================================
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average of the high and low
price for a share of Common Stock of Registrant as reported on the
Nasdaq National Market on June 8, 1998.
(2) There are also being registered hereunder such additional shares as may
be issued pursuant to the anti-dilution provisions of the 1998 Stock
Incentive Plan described herein.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the
"Act"). Such documents need not be filed with the Securities and
Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Act. These documents and the
documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a)
of the Act.
This Registration Statement on Form S-8 of Ursus Telecom Corporation,
a Florida corporation (the "Registrant"), covers 1,000,000 shares of the
Registrant's common stock, par value $.01 per share (the "Common Stock"),
reserved for issuance under the 1998 Stock Incentive Plan (the "Plan").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Registrant with the Securities
and Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The latest prospectus dated May 12, 1998 filed pursuant to Rule
424(b) under the Act (the "Prospectus") that contains audited financial
statements for the registrant's latest fiscal year for which such statements
have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Articles of Incorporation indemnifies, to
the fullest extent permitted by the Law of the State of Florida, the directors
of the Registrant. The applicable section of the Amended and Restated Articles,
reproduced in Part II of the Company's Registration Statement on Form S-1 filed
under the Act, reads:
"Every person (and the heirs, executors and administrators of such person) who
is or was a director, officer, employee or agent of the Corporation or of any
other company, including another corporation, partnership, joint venture, trust
or other enterprise on which such person serves or served at the request of the
Corporation shall be indemnified by the Corporation against all judgments,
payments in settlement (whether or not approved by court), fines, penalties and
other reasonable costs and expenses (including attorneys' fees and costs)
imposed upon or incurred by such person in connection with or resulting from any
action, suit, proceeding, investigation or claim, civil, criminal,
administrative, legislative or other (including any criminal action, suit or
proceeding in which such person enters a plea of guilty or NOLO CONTENDERE or
its equivalent), or any appeal relating thereto which is brought or threatened
either by or in the right of the Corporation or such other company (herein
called a "Derivative Action") or by any other person, governmental authority or
instrumentality (herein called a "Third-Party Action") and in which such person
is made a party or is otherwise involved by reason of his being or having been
such director, officer, employee or agent or by reason of any action or omission
or alleged action or omission by such person in his capacity as such director,
officer, employee or agent if either (i) such person is wholly successful, on
the merits or otherwise, in defending such derivative or third-party action or
(ii) in the judgment of a court of competent jurisdiction or, in the absence of
such a determination, in the judgment of a majority of a quorum of the Board of
Directors (which quorum shall not include any director who is a party to or is
otherwise involved in such action), or, in the absence of such a disinterested
quorum, in the opinion of independent legal counsel (iii) in the case of a
Derivative Action, such person acted without negligence or misconduct in the
performance of his duty to the Corporation or such other company or (iv) in the
case of a Third-Party Action, such person acted in good faith in what he
reasonably believed to be the best interests of the Corporation or such other
company, and in addition, in any criminal action, had no reasonable cause to
believe that his action was unlawful; provided that, in the case of a Derivative
Action, such indemnification shall not be made in respect of any payment to the
Corporation or such other company or any shareholder thereof in satisfaction of
judgment or in settlement unless either (x) a court of competent jurisdiction
has approved such settlement, if any, and the reimbursement of such payment or
(y) if the court in which such action has been instituted lacks jurisdiction to
grant such approval or such action is settled before the institution of judicial
proceedings, in the opinion of independent legal counsel the applicable standard
of conduct specified hereinbefore has been met, such action was without
substantial merit, such settlement was in the best interests of the Corporation
or such other company and the reimbursement of such payment is permissible under
applicable law. In case such person is successful on the merits or otherwise in
defending part of such action, or in the judgment of such a court or such quorum
of the Board of Directors or in the opinion of such counsel has met the
applicable standard of conduct specified in the preceding sentence with respect
to part of such action, he(she) shall be indemnified by the Corporation against
the judgments, settlements, payments, fines, penalties, and other costs and
expenses attributable to such part of such action.
"The foregoing rights of indemnification shall be in addition to any rights
which any such director, officer, employee or agent may otherwise be entitled
any agreement or vote of shareholders or at law or in equity or otherwise.
"In any case in which, in the judgment of a majority of such a disinterested
quorum of the Board of Directors, any such director, officer or employee will be
entitled to indemnification under the foregoing provisions of this Article, such
amounts as they deem necessary to cover the reasonable costs and expenses
incurred by such person in connection with the action, suit, proceeding,
investigation or claim prior to final disposition thereof may be advanced to
such person upon receipt of an undertaking by or on behalf of such person to
repay such amounts if it is ultimately determined that he(she) is not so
entitled to indemnification.
"The amendment or repeal of, or adoption of any provision inconsistent with,
this Article SIXTH will require the affirmative vote of the holders of at least
66 2/3% of the Common Stock and all series of voting Preferred Stock, voting
together as a single class. Any amendment or repeal of, or adoption of any
provision inconsistent with, this Article SIXTH will not adversely affect any
right or protection existing hereunder prior to such amendment, repeal, or
adoption."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO DESCRIPTION
4 1998 Stock Incentive Plan of Ursus Telecom Corporation.
5 Opinion of Stroock & Stroock & Lavan LLP
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Stroock & Stroock & Lavan LLP (included in Exhibit 5
to this Registration Statement).
24 Power of Attorney (included on the signature page to this
Registration Statement).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the Registration Statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing this Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sunrise, State of Florida on the 9th day of
June, 1998.
URSUS TELECOM CORPORATION
By: /S/ Luca M. Giussani
------------------------------------
Luca M. Giussani
President & Chief Executive Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints
Luca M. Giussani as their true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capabilities (until revoked in writing), to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting said attorney- in-fact and agent and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title Date
/s/ Luca M. Giussani President, Chief Executive Officer, June 5, 1998
- ----------------------- and Director
Luca M. Giussani
/s/ Jeffrey R. Chaskin Executive Vice President, June 5, 1998
- ----------------------- Chief Operating Officer and
Jeffrey R. Chaskin Director (Principal
Executive Officer)
/s/ Johannes S. Seefried Chief Financial and Chief June 5, 1998
- ------------------------- Accounting Officer (Principal
Johannes S. Seefried Financial and Accounting officer)
/s/ Kenneth L. Garrett Director June 5, 1998
- -------------------------
Kenneth L. Garrett
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
EXHIBIT NO DESCRIPTION
4 1998 Stock Incentive Plan of Ursus Telecom Corporation.
5 Opinion of Stroock & Stroock & Lavan LLP
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Stroock & Stroock & Lavan LLP (included in Exhibit 5 to
this Registration Statement).
24 Power of Attorney (included on signature page to this Registration
Statement).
EXHIBIT 4
1998 STOCK INCENTIVE PLAN
OF
URSUS TELECOM CORPORATION
1. PURPOSE. The purpose of this Stock Incentive Plan is to advance the
interests of the Corporation by encouraging and enabling the acquisition of a
larger personal proprietary interest in the Corporation by directors and key
employees of the Corporation and its Subsidiaries upon whose judgment and keen
interest the Corporation is largely dependent for the successful conduct of its
operations and by providing such directors and key employees with incentives to
put forth maximum efforts for the success of the Corporation's business. It is
anticipated that the acquisition of such proprietary interest in the Corporation
and such incentives will stimulate the efforts of such directors and key
employees on behalf of the Corporation and its Subsidiaries and strengthen their
desire to remain with the Corporation and its Subsidiaries. It is also expected
that such incentives and the opportunity to acquire such a proprietary interest
will enable the Corporation and its Subsidiaries to attract desirable personnel.
2. DEFINITIONS. When used in this Plan, unless the context otherwise
requires:
(a) "Alternative Rights" shall have the meaning set forth in
Section 7.
(b) "Board of Directors" shall mean the Board of Directors of
the Corporation, as constituted at any time.
(c) "Chairman of the Board" shall mean the person who at the
time shall be Chairman of the Board of Directors.
(d) "Committee" shall mean the Committee hereinafter described
in Section 3.
(e) "Conjunctive Rights" shall have the meaning set forth in
Section 7.
(f) "Corporation" shall mean Ursus Telecom Corporation, a
Florida corporation.
(g) "Eligible Persons" shall mean those persons described in
Section 4 who are potential recipients of Incentive Awards.
(h) "Fair Market Value" on a specified date shall mean the
closing price at which a Share is traded on the stock exchange, if any,
on which Shares are primarily traded or, if the Shares are not then
traded on a stock exchange, the closing price of a Share as reported on
the NASDAQ National Market System or, if the Shares are not then traded
on the NASDAQ National Market System, the average of the closing bid
and asked prices at which a Share is traded on the over-the-counter
market, but if no Shares were traded on such date, then on the last
previous date on which a Share was so traded, or, if none of the above
are applicable, the value of a Share as established by the Board of
Directors for such date using any reasonable method of valuation.
(i) "Incentive Award" shall mean an Option, Restricted Stock
Award or Rights granted pursuant to this Plan.
(j) "Incentive Stock Option" shall have the meaning set forth
in section 422 of the Internal Revenue Code.
(k) "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
(l) "Options" shall mean the stock options granted pursuant to
this Plan.
(m) "Plan" shall mean this 1998 Stock Incentive Plan of Ursus
Telecom Corporation as adopted by Unanimous Written Consent of the
Shareholders and Directors on February 12, 1998, as such Plan from time
to time may be amended.
(n) "President" shall mean the person who at the time shall be
the President of the Corporation.
(o) "Restricted Shares" shall mean the Shares issued as a
result of a Restricted Stock Award.
(p) "Restricted Stock Award" shall mean a grant of Shares or
of the right to purchase Shares pursuant to Section 12 hereof. Such
Shares, when and if issued, shall be subject to such transfer
restrictions and risk of forfeiture as the Board of Directors shall
determine at the time the Award is granted, until such specific
conditions are met. Such conditions may be based on continuing
employment or achievement of pre-established performance objectives, or
both.
(q) "Rights" shall mean stock appreciation rights granted
pursuant to the Plan, which shall entitle the holder thereof to receive
from the Corporation cash or Shares or a combination of cash and Shares
based upon the excess of the Fair Market Value of Shares at the time of
exercise over the purchase price of the Shares subject to the related
Option, or the Fair Market Value of Shares on the date the Rights were
granted, as the case may be, subject to the terms and conditions of the
Plan.
(r) "Reload Option" shall have the meaning set forth in
Section 6.
(s) "Share" shall mean a share of common stock, par value
$.01 per share, of the Corporation.
(t) "Spread" shall mean (i) with respect to Conjunctive Rights
and Alternative Rights, the excess of the Fair Market Value of one
Share on the date of exercise of such Rights over the purchase price
per Share payable under the related Option and (ii) with respect to
Rights not granted in connection with an Option, the excess of the Fair
Market Value of one Share on the date of exercise of such Rights over
the Fair Market Value of one Share on the date such Rights were
granted.
(u) "Subsidiary" shall mean any corporation 50% or more of
whose stock having general voting power is owned by the Corporation, or
by another Subsidiary as herein defined, of the Corporation.
3. ADMINISTRATION. The Plan shall be administered by a Committee of
the Board of Directors which shall consist of two or more directors of the
Corporation, each of whom shall be a "Non-Employee Director" within the meaning
of Rule 16b-3 under the Securities Exchange Act of 1934, as from time to time
amended (the "Exchange Act") and an "outside director" within the meaning of
Section 162(m) of the Internal Revenue Code. Notwithstanding the foregoing,
prior to the effective date of the Corporation's initial public offering of
Shares, the Plan shall be administered by the Board of Directors. During such
period in which the Plan is administered by the Board of Directors, all
references herein to the Committee shall be deemed to refer to the Board of
Directors. The Committee shall establish such rules and procedures as are
necessary or advisable to administer the Plan.
Determinations of the Committee as to any question which may arise
with respect to the interpretation of the provisions of the Plan and Incentive
Awards shall be final. The Committee may authorize and establish such rules,
regulations and revisions thereof not inconsistent with the provisions of the
Plan, as it may deem advisable to make the Plan and Incentive Awards effective
or provide for their administration, and may take such other action with regard
to the Plan and Incentive Awards as it shall deem desirable to effectuate their
purpose.
4. PARTICIPANTS. Except as hereinafter provided, the class of persons
who are potential recipients of Incentive Awards granted under this Plan shall
consist of (i) the directors of, and consultants to, the Corporation or a
Subsidiary and (ii) employees of the Corporation or a Subsidiary, as determined
by the Committee. The parties to whom Incentive Awards are granted under this
Plan, and the number of Shares subject to each such Incentive Award, shall be
determined by the Committee in its sole discretion, subject, however, to the
terms and conditions of this Plan.
5. SHARES. Subject to the provisions of Section 16 hereof, the Board
of Directors may grant Incentive Awards with respect to an aggregate of up to
1,000,000 Shares, all of which Shares may be either Shares held in treasury or
authorized but unissued Shares. If the Shares that would be issued or
transferred pursuant to any Incentive Awards are not issued or transferred and
cease to be issuable or transferable for any reason, or if Restricted Shares
which are subject to a Restricted Stock Award are forfeited, the number of
Shares subject to such Incentive Award will no longer be charged against the
limitation provided for herein and may again be made subject to Incentive
Awards; provided, however, that Shares as to which an Option has been
surrendered in connection with the exercise of an Alternative Right shall not
again be available for the grant of any further Incentive Awards.
Notwithstanding the preceding, with respect to any Option and/or any Rights
granted to any individual who is a "covered employee" within the meaning of
Section 162(m) of the Internal Revenue Code that is cancelled, the number of
shares subject to such Option and/or Rights shall continue to count against the
maximum number of shares which may be the subject of Options and Rights granted
to such individual. For purposes of the preceding sentence, if, after grant, the
exercise price of an Option and/or the base amount of any Rights is reduced,
such reduction shall be treated as a cancellation of such Option and/or Rights
and the grant of a new Option and/or Rights (if any), and both the cancellation
of the Option and/or Rights and the new Option and/or Rights shall reduce the
maximum number of shares for which Options and Rights may be granted to the
holder of such Option and/or Rights.
6. GRANT OF OPTIONS. The number of Options to be granted to any
Eligible Person shall be determined by the Committee in its sole discretion. At
the time an Option is granted, the Committee may, in its sole discretion,
designate whether such Option (a) is to be considered as an Incentive Stock
Option, or (b) is not to be treated as an Incentive Stock Option for purposes of
this Plan and the Internal Revenue Code. No Option which is intended to qualify
as an Incentive Stock Option shall be granted under this Plan to any individual
who, at the time of such grant, is not an employee of the Corporation or a
Subsidiary.
Notwithstanding any other provision of this Plan to the contrary, to
the extent that the aggregate Fair Market Value (determined as of the date an
Option is granted) of the Shares with respect to which Options which are
designated as (or deemed to be) Incentive Stock Options granted to an employee
(and any incentive stock options granted to such employee under any other stock
option plan maintained by the Corporation or any Subsidiary that meets the
requirements of Section 422 of the Internal Revenue Code) first become
exercisable in any calendar year exceeds $100,000, such Options shall be treated
as Options which are not Incentive Stock Options. Options with respect to which
no designation is made by the Committee shall be deemed to be Incentive Stock
Options to the extent that the $100,000 limitation described in the preceding
sentence is met. This paragraph shall be applied by taking options into account
in the order in which they are granted.
Nothing herein contained shall be construed to prohibit the issuance
of Options at different times to the same person.
An Option may, in the discretion of the Committee, include a reload
option right which shall entitle the holder, upon (i) the exercise of such
original Option prior to the holder's termination of employment or service and
(ii) payment of the appropriate exercise price in Shares that have been owned by
such holder for at least six months prior to the date of exercise, to receive a
new Option (the "Reload Option") to purchase, at the Fair Market Value per Share
on the date of the exercise of the original Option, the number of Shares equal
to the number of whole Shares delivered by the holder as payment of the exercise
price of the original Option, subject to the availability of Shares under the
Plan at the time of exercise of the original Option. A Reload Option may, in the
discretion of the Committee, also allow that, upon the exercise of an Option
(using any method of payment) prior to the holder's termination of employment or
service, the holder shall receive a new Option to purchase at the Fair Market
Value per Share on the date of exercise of the original Option, the number of
Shares equal to the number of Shares issued upon exercise of the original
Option, subject to the availability of Shares under the Plan at the time of
exercise of the original Option. Any Reload Option shall be subject to the same
expiration date, and shall be exercisable at the same time or times as, the
original Option with respect to which it is granted. A Reload Option shall not
itself include any reload option rights.
The form of Option shall be determined from time to time by the
Committee. A certificate of Option signed by the Chairman of the Board or the
President or a Vice President of the Corporation shall be issued to each person
to whom an Option is granted. The certificate of Option for an Option shall be
legended to indicate whether or not the Option is an Incentive Stock Option.
7. GRANT OF RIGHTS. The Committee shall have the authority to grant to
any Eligible Person, in its sole discretion, Rights which may be granted
separately, or in connection with an Option at the time of the grant of an
Option. Rights granted in connection with an Option shall be granted with
respect to the same number of Shares as are covered by the Option, subject to
adjustment pursuant to the provisions of Section 16 hereof, and may be
exercised, as determined by the Committee in its discretion at the time of the
grant of the Rights, either in conjunction with, or as an alternative to, the
exercise of the related Option.
Conjunctive Rights ("Conjunctive Rights") granted in connection with
an Option shall entitle the holder thereof to receive payment from the
Corporation, determined as hereinafter provided, only if and to the extent that
the related Option is exercisable and is exercised. Upon any exercise of an
Option in respect of which Conjunctive Rights shall have been granted, the
holder of the Rights shall be entitled to receive payment of an amount equal to
the product obtained by multiplying (i) the Spread, or a portion of the Spread
determined by the Committee at the time of grant, by (ii) the number of Shares
in respect of which the related Option shall have then been so exercised.
Alternative Rights ("Alternative Rights") granted in connection with
an Option shall entitle the holder thereof to receive payment from the
Corporation, determined as hereinafter provided, only if and to the extent that
the related Option is exercisable, by surrendering the Option with respect to
the number of Shares as to which such Rights are then exercised. Such Option, to
the extent surrendered, shall be deemed exercised for purposes of the
limitations under Section 5. Upon any exercise of Alternative Rights, the holder
thereof shall be entitled to receive payment of an amount equal to the product
obtained by multiplying (i) the Spread, or a portion of the Spread determined by
the Committee at the time of grant, by (ii) the number of Shares in respect of
which the Rights shall have then been so exercised. Notwithstanding anything
contained herein, Alternative Rights granted in connection with an Option that
is an Incentive Stock Option may not be exercised at any time when the Fair
Market Value of the Shares subject thereto is less than the exercise price of
such Option.
Rights granted without relationship to an Option shall be exercisable
for a duration determined by the Committee, but in no event more than ten years
from the date of grant. Such Rights shall entitle the holder, upon the exercise
thereof, to receive payment from the Corporation of an amount equal to the
product obtained by multiplying (i) the Spread, or a portion of the Spread
determined by the Committee at the time of grant, by (ii) the number of Shares
in respect of which the Rights shall have then been so exercised.
Notwithstanding anything contained herein, the Committee may, in its
sole discretion, limit the amount payable upon the exercise of Rights. Any such
limitation shall be determined as of the date of grant and noted on the
certificate evidencing the grant of the Rights.
Payment of the amount determined hereunder upon the exercise of Rights
may be made solely in cash, or solely in Shares valued at their Fair Market
Value on the date of exercise of Rights, or in a combination of cash and Shares,
as determined by the Committee. No fractional Shares shall be issued by the
Corporation, and settlement therefor shall be made in cash.
The form of Rights shall be as determined from time to time by the
Committee. A certificate of Rights signed by the Chairman of the Board or the
President or a Vice President of the Corporation shall be delivered to each
Eligible Person to whom Rights are granted.
8. PURCHASE PRICE. The price per Share of the Shares to be purchased
pursuant to the exercise of any Option shall be fixed by the Committee at the
time of grant; provided, however, that the purchase price per Share for the
Shares to be purchased pursuant to the exercise of an Incentive Stock Option
shall not be less than the Fair Market Value of a Share on the day on which the
Option is granted.
The purchase price per Share for Restricted Shares to be purchased
pursuant to Restricted Stock Awards shall be fixed by the Committee at the time
of the grant of the Restricted Stock Award; provided, however, that such
purchase price shall not be less than the par value of such Shares. Payment of
such purchase price shall be made in cash or by check payable to the order of
the Corporation, or by such other method as the Committee may permit.
9. DURATION OF OPTIONS AND RELATED RIGHTS. The duration of any Option
granted under this Plan shall be fixed by the Committee at the time of grant;
provided, however, that no Option shall remain in effect for a period of more
than ten years from the date upon which the Option is granted. The duration of
any Rights granted in connection with any Option shall be coterminous with the
duration of the related Option.
10. TEN PERCENT STOCKHOLDERS. Notwithstanding any other provision of
this Plan to the contrary, no Option which is intended to qualify as an
Incentive Stock Option may be granted under this Plan to any employee who, at
the time the Option is granted, owns shares possessing more than 10 percent of
the total combined voting power or value of all classes of stock of the
Corporation, unless the exercise price under such Option is at least 110% of the
Fair Market Value of a Share on the date such Option is granted and the duration
of such Option is no more than five years.
11. EXERCISE OF OPTIONS AND RIGHTS. Except as otherwise provided
herein, Options and Rights, after the grant thereof, shall be exercisable by the
holder at such rate and times as may be fixed by the Committee.
Notwithstanding the foregoing, all or any part of any remaining
unexercised Options or Rights granted to any person may be exercised in the
following circumstances: (a) immediately upon (but prior to the expiration of
the term of the Option or Rights) the holder's retirement from the Corporation
and all Subsidiaries on or after his 65th birthday, (b) subject to the
provisions of Section 15 hereof, upon the disability (to the extent and in a
manner as shall be determined by the Committee in its sole discretion) or the
death of the holder, (c) upon the occurrence of such special circumstance or
event as in the opinion of the Committee merits special consideration, or (d)
if, while the holder is employed by, or serving as a director of or consultant
to, the Corporation or a Subsidiary, there occurs a Change in Control. For
purposes of this Plan, a "Change in Control" shall be deemed to have occurred if
(x) any "person" or group of "persons" (as the term "person" is used in Sections
13(d) and 14(d) of the Exchange Act) ("Person"), acquires (or has acquired
during the twelve-month period ending on the date of the most recent acquisition
by such Person) direct or indirect beneficial ownership of securities of the
Corporation representing 33% or more of the combined voting power of the then
outstanding securities of the Corporation or (y) a Person acquires (or has
acquired during the twelve-month period ending on the date of the most recent
acquisition by such Person) assets from the Corporation that have a total fair
market value equal to or more than one-third of the total fair market value of
all of the assets of the Corporation immediately prior to such acquisition;
provided, however, that if any transaction or event or series of transactions or
events resulting in a Change in Control is approved by a majority of the members
of the Board of Directors holding office prior to the transaction or event or
series of transactions or events, then the transaction or event or series of
transactions or events shall not be deemed to be a Change in Control.
Notwithstanding the foregoing, for purposes of subsection (x), a Change in
Control will not be deemed to have occurred if the power to control (directly or
indirectly) the management and policies of the Corporation is not transferred
from a Person to another Person; and, for purposes of subsection (y), a Change
in Control will not be deemed to occur if the assets of the Corporation are
transferred: (i) to a shareholder in exchange for his stock, (ii) to an entity
in which the Corporation has (directly or indirectly) 50% ownership, or (iii) to
a Person that has (directly or directly) at least 50% ownership of the
Corporation with respect to its stock outstanding, or to any entity in which
such Person possesses (directly or indirectly) 50% ownership.
An Option shall be exercised by the delivery of a written notice duly
signed by the holder thereof to such effect ("Exercise Notice"), together with
the Option certificate and the full purchase price of the Shares purchased
pursuant to the exercise of the Option, to the Chairman of the Board or an
officer of the Corporation appointed by the Chairman of the Board for the
purpose of receiving the same. Payment of the full purchase price shall be made
as follows: in cash or by check payable to the order of the Corporation; by
delivery to the Corporation of Shares which shall be valued at their Fair Market
Value on the date of exercise of the Option (provided, that a holder may not use
any Shares acquired pursuant to this Plan or any other plan maintained by the
Corporation or a Subsidiary unless the holder has beneficially owned such Shares
for at least six months); by providing with the Exercise Notice an order to a
designated broker to sell part or all of the Shares and to deliver sufficient
proceeds to the Corporation, in cash or by check payable to the order of the
Corporation, to pay the full purchase price of the Shares and all applicable
withholding taxes; or by such other methods as the Committee may permit from
time to time. Any Conjunctive Rights granted in connection with such Option
shall be exercised by the inclusion in the Exercise Notice of a notice of
exercise of Rights, together with the Rights certificate and a specification of
the percentages of the Rights which the holder desires to receive in cash and in
Shares.
Within a reasonable time after the exercise of an Option, the
Corporation shall cause to be delivered to the person entitled thereto, a
certificate for the Shares purchased pursuant to the exercise of the Option and,
if Conjunctive Rights have been exercised in connection therewith, the amount of
cash and/or a certificate for the number of Shares determined in accordance with
Section 7 hereof. If the Option and any Conjunctive Rights shall have been
exercised with respect to less than all of the Shares subject to the Option and
Rights, the Corporation shall also cause to be delivered to the person entitled
thereto a new Option certificate and a new Rights certificate in replacement of
the certificates surrendered at the time of the exercise of the Option and
Rights, indicating the number of Shares with respect to which the Option and
Rights remain available for exercise, or the original Option certificate and
Rights certificate shall be endorsed to give effect to the partial exercise
thereof.
Alternative Rights or Rights not granted in connection with an Option
shall be exercised by the delivery of a duly signed notice in writing to such
effect, together with the Rights certificate, and a specification of the
percentages of the Rights which the holder desires to receive in cash and in
Shares. Holders of Alternative Rights shall also surrender the related Option
certificate. Within a reasonable time thereafter, the Corporation shall cause to
be delivered to the person entitled thereto, the amount of cash and/or a
certificate for the number of Shares determined in accordance with Section 7
hereof. Upon the exercise of Alternative Rights, the number of Shares subject to
exercise under the related Option or portion thereof shall be reduced by the
number of Shares represented by the Option or portion thereof surrendered.
Shares subject to Options or portions thereof surrendered upon the exercise of
Alternative Rights shall not be available for subsequent Incentive Awards under
the Plan. If the Rights shall have been exercised with respect to less than all
of the Shares subject thereto (or to the related Option, if any), the
Corporation shall also cause to be delivered to the person entitled thereto a
Rights certificate (and an Option certificate, in the case of Alternative
Rights) with respect to the difference between the number of Shares of the
Rights certificate (and related Option certificate, if any) surrendered at the
time of the exercise of the Rights and the number of Shares with respect to
which the Rights were so exercised (and the related Option, if any, was so
surrendered), or the original Rights certificate (and related Option
certificate, if any) shall be endorsed to give effect to the partial exercise
(and surrender) thereof.
Notwithstanding any other provision of the Plan or of any Option or
Rights, no Option or Rights granted pursuant to the Plan may be exercised at any
time when the Option or Rights or the granting or exercise thereof violates any
law or governmental order or regulation.
12. TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS.
(a) All Restricted Shares granted to or purchased by an eligible
person pursuant to the Plan shall be subject to the following conditions:
(i) the Restricted Shares may not be sold,
transferred, or otherwise alienated or hypothecated until the
restrictions are satisfied, removed or expire;
(ii) each certificate representing Restricted Shares
issued pursuant to a Restricted Stock Award under this Plan shall bear
a legend making appropriate reference to the restrictions imposed; and
(iii) the Committee may impose such other conditions
as it may deem advisable on any Restricted Shares granted to or
purchased by an Eligible Person pursuant to a Restricted Stock Award
under this Plan, including, without limitation, restrictions under the
requirements of any stock exchange upon which such Shares or shares of
the same class are then listed, and under any securities law applicable
to such Shares.
(b) The restrictions imposed under subsection (a) hereof upon
Restricted Stock Awards shall lapse in accordance with a schedule or such other
conditions as shall be determined by the Committee, subject to the provisions of
Section 15 hereof.
(c) Prior to the satisfaction, expiration or lapse of all of the
restrictions and conditions imposed upon Restricted Shares, a stock certificate
or certificates representing such Restricted Shares shall be registered in the
holder's name but shall be retained by the Corporation for the holder's account.
The holder shall have the right to vote such Restricted Shares and shall have
all other rights and privileges of a beneficial and record owner with respect
thereto, including, without limitation, the right to receive dividends,
distributions and adjustments with respect thereto; provided, however, that such
dividends, distributions and adjustments shall be retained by the Corporation
for the holder's account and for delivery to the holder, together with the stock
certificate or certificates representing such Restricted Shares, as and when
said restrictions and conditions shall have been satisfied, expired or lapsed.
13. CONSIDERATION FOR INCENTIVE AWARDS. The Corporation shall obtain
such consideration for the grant of an Incentive Award as the Committee in its
discretion may determine.
14. RESTRICTIONS ON TRANSFERABILITY OF INCENTIVE AWARDS. An Incentive
Award shall not be transferable otherwise than by will or the laws of descent
and distribution or as provided in this Section 14. Notwithstanding the
preceding, the Committee may, in its discretion, authorize a transfer of any
Incentive Award, other than an Option which is an Incentive Stock Option, by the
initial holder to (i) the spouse, children, step children, grandchildren or
other family members of the initial holder ("Family Members"), (ii) a trust or
trusts for the exclusive benefit of such Family Members, (iii) a corporation or
partnership in which such Family Members and the initial holder are the only
shareholders or partners, or (iv) such other persons or entities which the
Committee may permit, subject in each case to such terms and conditions as the
Committee shall approve; provided, however, that subsequent transfers of such
Incentive Awards shall be prohibited except by will or the laws of descent and
distribution. Following any transfer of such an Incentive Award, such Incentive
Award shall continue to be subject to the same terms and conditions of the
Incentive Award and of the Plan. An Option which is intended to be an Incentive
Stock Option shall not be transferable otherwise than by will or the laws of
descent and distribution and shall be exercisable during the holder's lifetime
only by the holder thereof.
15. TERMINATION OF EMPLOYMENT OR SERVICE. All or any part of any
Option and/or Rights, to the extent unexercised, shall terminate immediately,
upon the cessation or termination for any reason of the holder's employment by,
or service as a director of, or consultant to, the Corporation or any
Subsidiary, except that the holder shall have until the end of the tenth
business day following the cessation of his employment or service with the
Corporation or its Subsidiaries, and no longer, to exercise any unexercised
Option and/or Rights that he could have exercised on the day on which such
employment or service terminated; provided, that such exercise must be
accomplished prior to the expiration of the term of such Option and Rights.
Notwithstanding the foregoing, if the cessation of employment or service is due
to retirement on or after attaining the age of sixty-five (65) years, or to
disability (to an extent and in a manner as shall be determined in each case by
the Committee in its sole discretion) or to death, the holder or the
representative of the Estate or the heirs of a deceased holder shall have the
privilege of exercising the Options and Rights which are unexercised at the time
of such retirement, or of such disability or death; provided, however, that such
exercise must be accomplished prior to the expiration of the term of such Option
and Rights and (a) within three months of the holder's retirement or disability,
or (b) within six months of the holder's death, as the case may be. If the
employment or service of any holder of an Option or Rights with the Corporation
or a Subsidiary shall be terminated because of the holder's violation of the
duties of such employment or service with the Corporation or a Subsidiary as he
may from time to time have, the existence of which violation shall be determined
by the Committee in its sole discretion (which determination by the Committee
shall be conclusive) all unexercised Options and Rights of such holder shall
terminate immediately upon such termination of the holder's employment or
service with the Corporation and all Subsidiaries, and a holder of Options or
Rights whose employment or service with the Corporation and Subsidiaries is so
terminated, shall have no right after such termination to exercise any
unexercised Option or Rights he might have exercised prior to the termination of
his employment or service with the Corporation and Subsidiaries.
Except as hereinafter provided, if a holder of a Restricted Stock
Award shall voluntarily or involuntarily leave the employ of the Corporation or
any Subsidiary, all Restricted Shares subject to restrictions at the time his
employment terminates (and any dividends, distributions and adjustments retained
by the Corporation with respect thereto) shall be forfeited and any
consideration received therefor from the holder shall be returned to the holder.
Notwithstanding the foregoing, all restrictions to which Restricted Stock Awards
are subject shall lapse (a) upon the death or disability of the holder, (b) upon
the occurrence of such special circumstance or event as in the opinion of the
Committee merits special considerations or (c) upon a Change in Control while
the holder is employed by, or serving as a director of, the Corporation or a
Subsidiary.
16. ADJUSTMENT PROVISION. If prior to the complete exercise of any
Option, or prior to the satisfaction, expiration or lapse of all of the
restrictions and conditions imposed pursuant to a Restricted Stock Award, there
shall be declared and paid a stock dividend upon the Shares or if the Shares
shall be split up, converted, exchanged, reclassified, or in any way substituted
for,
(a) in the case of an Option, then the Option, to the extent that it
has not been exercised, shall entitle the holder thereof upon the future
exercise of the Option to such number and kind of securities or cash or other
property subject to the terms of the Option to which he would have been entitled
had he actually owned the Shares subject to the unexercised portion of the
Option at the time of the occurrence of such stock dividend, split- up,
conversion, exchange, reclassification or substitution, and the aggregate
purchase price upon the future exercise of the Option shall be the same as if
the originally optioned Shares were being purchased thereunder; and
(b) in the case of a Restricted Share issued pursuant to a Restricted
Stock Award, the holder of such Award shall receive, subject to the same
restrictions and other conditions of such Award as determined pursuant to the
provisions of Section 12, the same securities or other property as are received
by the holders of the Corporation's Shares pursuant to such stock dividend,
split-up, conversion, exchange, reclassification or substitution.
Any fractional shares or securities issuable upon the exercise of the
Option as a result of such adjustment shall be payable in cash based upon the
Fair Market Value of such shares or securities at the time of such exercise. If
any such event should occur, the number of Shares with respect to which
Incentive Awards remain to be issued, or with respect to which Incentive Awards
may be reissued, shall be adjusted in a similar manner.
In addition to the adjustments provided for in the preceding
paragraph, upon the occurrence of any of the events referred to in said
paragraph prior to the complete exercise of any Rights, the Board of Directors,
in its sole discretion, shall determine the amount of cash and/or number of
Shares or other property to which the holder of the Rights shall be entitled
upon their exercise, so that there shall be no increase or dilution in the cash
and/or value of the Shares or other property to which the holder of Rights shall
be entitled by reason of such events.
In the event of a recapitalization, merger, consolidation, rights
offering, separation, reorganization or liquidation, or any other change in the
corporate structure or outstanding Shares, the Committee may make such equitable
adjustments to the number of Shares and the class of shares available hereunder
or to any outstanding Incentive Awards as it shall deem appropriate to prevent
dilution or enlargement of rights.
17. ISSUANCE OF SHARES AND COMPLIANCE WITH SECURITIES Act. The
Corporation may postpone the issuance and delivery of Shares pursuant to the
grant or exercise of any Incentive Award until (a) the admission of such Shares
to listing on any stock exchange on which Shares of the Corporation of the same
class are then listed, and (b) the completion of such registration or other
qualification of such Shares under any State or Federal law, rule or regulation
as the Corporation shall determine to be necessary or advisable. Any holder of
an Incentive Award shall make such representations and furnish such information
as may, in the opinion of counsel for the Corporation, be appropriate to permit
the Corporation, in the light of the then existence or non-existence with
respect to such Shares of an effective Registration Statement under the
Securities Act of 1933, as from time to time amended (the "Securities Act"), to
issue the Shares in compliance with the provisions of the Securities Act or any
comparable act. The Corporation shall have the right, in its sole discretion, to
legend any Shares which may be issued pursuant to the grant or exercise of any
Incentive Award, or may issue stop transfer orders in respect thereof.
18. INCOME TAX WITHHOLDING. If the Corporation or a Subsidiary shall
be required to withhold any amounts by reason of any Federal, State or local tax
rules or regulations in respect of the issuance of Shares pursuant to the grant
or exercise of any Incentive Award, the Corporation or the Subsidiary shall be
entitled to deduct and withhold such amounts from any cash payments to be made
to the holder of such Incentive Award. In any event, the holder shall make
available to the Corporation or Subsidiary, promptly when requested by the
Corporation or such Subsidiary, sufficient funds to meet the requirements of
such withholding; and the Corporation or Subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to have such funds
made available to the Corporation or Subsidiary out of any funds or property due
or to become due to the holder of such Incentive Award.
19. AMENDMENT OF THE PLAN. Except as hereinafter provided, the Board
of Directors or the Committee may at any time withdraw or from time to time
amend the Plan as it relates to, and the terms and conditions of, any Incentive
Awards not theretofore granted, and the Board of Directors or the Committee,
with the consent of the affected holder of an Incentive Award, may at any time
withdraw or from time to time amend the Plan as it relates to, and the terms and
conditions of, any outstanding Incentive Award. Notwithstanding the foregoing,
any amendment by the Board of Directors or the Committee which would increase
the number of Shares issuable under the Plan or to any individual or change the
class of Eligible Persons shall be subject to the approval of the shareholders
of the Corporation within one year of such amendment.
20. NO RIGHT OF EMPLOYMENT. Nothing contained herein or in an
Incentive Award shall be construed to confer on any employee, director or
consultant any right to be continued in the employ of the Corporation or any
Subsidiary or as a director of, or consultant to, the Corporation or a
Subsidiary or derogate from any right of the Corporation and any Subsidiary to
retire, request the resignation of, discharge, or terminate its consulting
arrangement with, such employee, director or consultant (without or with pay),
at any time, with or without cause.
21. EFFECTIVE DATE OF THE PLAN. This Plan is effective as of February
12, 1998.
22. FINAL ISSUANCE DATE. No Incentive Award shall be granted under the
Plan after February 12, 2008.
EXHIBIT 5
[LETTERHEAD OF STROOCK & STROOCK & LAVAN LLP]
Michael Basile
(305) 789-9350
June 5, 1998
Ursus Telecom Corporation
440 Sawgrass Corporate Parkway, Ste. 112
Sawgrass, Florida 33325
RE: URSUS TELECOM CORPORATION
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Ursus Telecom Corporation, a Florida
corporation (the "Company"), in connection with certain matters involving the
Company's Registration Statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), covering 1,000,000
shares of the Company's common stock, par value $.01 per share (the "Shares").
The Shares are issuable pursuant to the 1998 Stock Incentive Plan of Ursus
Telecom Corporation (the "Plan").
As such counsel, we have examined copies of the Articles of
Incorporation and By-laws of the Company, each as amended to the date hereof,
the Registration Statement, and originals or copies of such other corporate
minutes, records, agreements and other instruments of the Company, certificates
of public officials and other documents and have made such examinations of law
as we have deemed necessary to form the basis for the opinion hereinafter
expressed. In our examination of such materials, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals and the conformity to original documents of all copies submitted to
us. As to various questions of fact material to such opinion, we have relied, to
the extent we deemed appropriate, upon representations, statements and
certificates of officers and representatives of the Company and others.
Attorneys involved in the preparation of this opinion do so as members
only of the Bar of the State of Florida and do not express any opinion hereunder
concerning any law other than the laws of the State of Florida or the Federal
laws of the United States of America.
This opinion has been prepared and is to be construed in accordance
with the report on Standards for Florida Opinions, dated April 8, 1991, issued
by the Business Law Section of The Florida Bar (the "Report"). The Report is
incorporated by reference into this Opinion.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when issued against receipt of consideration therefor,
all in accordance with the terms of the Plan, will be validly issued, fully paid
and nonassessable.
We hereby consent to your filing a copy of this opinion as an exhibit
to the Registration Statement. In giving such consent, we do not admit hereby
that we come within the category of persons whose consent is required under
Section 7 of the Act, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Sincerely,
STROOCK & STROOCK & LAVAN LLP
By: /s/ Michael Basile
-----------------------
Michael Basile
MB:jh
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the 1998 Stock Incentive Plan of Ursus Telecom
Corporation and our report dated August 15, 1997, with respect to the financial
statements of Ursus Telecom Corporation included in its Registration Statement
on Form S-1 No. 333-46197 for the year ended March 31, 1998, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Miami, Florida
June 4, 1998
