Exhibit 4(c)
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TELEGLOBE INC.
STOCK OPTION PLAN
AS AMENDED AND RESTATED
1. Purpose of the Plan
The purpose of the Plan is (i) to create an incentive for Eligible
Participants to join and remain in the employ of Teleglobe and/or its
Subsidiaries, (ii) to encourage such Eligible Participants to work towards
and participate in the growth and development of Teleglobe and its
Subsidiaries, (iii) to provide the Eligible Participants with the opportunity
to acquire an ownership interest in Teleglobe, and (iv) to enhance
Teleglobe's long term performance.
2. Definitions
For the purposes of the Plan, the terms defined below shall have the
following meaning:
"Appreciation Period" shall mean the period from the date of the Grant of a
Share Appreciation Right to the date of its expiry, as specified by the Board
pursuant to Section 7.3.
"Board" shall mean the Board of Directors of Teleglobe.
"Change of Control" shall mean:
(i) the acquisition by any person or entity, or any persons or entities
acting jointly or in concert, whether directly or indirectly, of
voting securities of Teleglobe which, together with all other
voting securities of Teleglobe held by such persons or entities,
constitute, in the aggregate, either (a) fifty percent (50%) or
more of all outstanding voting securities of Teleglobe, or (b)
forty percent (40%) or more of all outstanding voting securities of
Teleglobe and is followed within twenty-four (24) months by changes
of the members of the Board resulting in a change of the majority
of the Board;
(ii) an amalgamation, arrangement or other form of business combination
of Teleglobe with another entity which results in the holders of
voting securities of that other entity holding, in the aggregate,
either (a) fifty percent (50%) or more of all outstanding voting
securities of the entity resulting from the business combination,
or (b) forty percent (40%) or more of all outstanding voting
securities of the entity resulting from the business combination
and is followed within twenty-four (24) months by changes of the
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members of the Board resulting in a change of the majority of the
Board;
(iii) any event or series of events (which event or series of events
may include, without limitation, a proxy fight or proxy
solicitation with respect to the election of directors of
Teleglobe made in opposition to the nominees recommended by
the Continuing Directors during any period of twenty-four (24)
consecutive months) as a result of which a majority of the
members of the Board consists of individuals other than
Continuing Directors; or
(iv) the sale, lease or exchange of all or substantially all of the
property of Teleglobe to another person or entity, other than in
the ordinary course of business of Teleglobe to any of its
Subsidiaries.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended.
"Committee" shall mean the Compensation and Human Resources Committee of the
Board, or such other committee of the Board performing similar functions to
which the authority to administer the Plan, in whole or in part, has been
delegated by the Board.
"Continuing Directors" shall mean with respect to any period of twenty-four
(24) consecutive months, (a) any members of the Board on the first (1st) day
of such period, (b) any members of the Board elected after the first (1st)
day of such period at any annual meeting of shareholders who were nominated
by the Board or a committee thereof, if a majority of the members of the
Board or such committee were Continuing Directors at the time of such
nomination, and (c) any members of the Board elected to succeed Continuing
Directors by the Board or a committee thereof, if a majority of the members
of the Board or such committee were Continuing Directors at the time of such
election.
"Disability" shall mean a physical or mental impairment sufficient to make
the Eligible Participant eligible for benefits under a long-term disability
program of Teleglobe or of any of its Subsidiaries, or if the Optionholder is
not covered by such a program, as determined by the Board.
"Dismissal for Cause" shall mean termination of employment for (a) theft or
embezzlement of the property of Teleglobe or any of its Subsidiaries; (b)
fraud or other wrongdoing against Teleglobe or any of its Subsidiaries; (c) a
conviction of a crime of moral turpitude; (d) receipt of consideration or
acceptance of benefits from, or the participation in business activities
with, persons doing business with Teleglobe or any of its Subsidiaries or an
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affiliate, in violation of the business ethics policy of Teleglobe; (e)
malicious destruction of the property of Teleglobe or any of its
Subsidiaries; (f) improper disclosure of trade secrets of Teleglobe or any of
its Subsidiaries; (g) actively engaging in or working for a business in
direct competition with Teleglobe or any of its Subsidiaries while employed
by Teleglobe or any of its Subsidiaries; or (h) such other reason as the
Board may determine. Teleglobe will determine whether a termination of
employment has occurred by reason of Dismissal for Cause, and will notify the
Board of such a determination.
"EBITDA" shall mean earnings before interest expenses, taxes, depreciation,
amortization and other non-cash items;
"Eligible Participants" shall mean the officers and key employees of
Teleglobe or any of its Subsidiaries determined by the Board to be eligible
to receive Grants under the Plan.
"Grant" shall mean an award of a number of Options, Share Appreciation
Rights, Restricted Shares or Incentive Share Units, as the case may be,
granted to an Eligible Participant at any time in accordance with Sections 5,
7, 8 or 9 hereof, as the case may be.
"Grant Date" shall mean the date on which an Option is granted as determined
in accordance with the provisions of Section 5.1.
"Grantee" shall mean any Eligible Participant who has been granted Share
Appreciation Rights, Restricted Shares or Incentive Share Units under the
Plan.
"Incentive Stock Option" shall mean an Option which qualifies for special
U.S. Federal income tax treatment and is designated by the Board as an
Incentive Stock Option within the meaning of Section 422 of the Code.
"Incentive Share Unit" shall mean a right granted to an Eligible Participant
to receive Shares, as provided in Section 9.
"Market Value" of a Share shall mean, where the Market Value needs to be
determined for an Optionholder or a Grantee in Canadian dollars, the weighted
average of the trading prices of the Shares on The Toronto Stock Exchange on
the last five (5) trading days preceding the date on which such value needs to
be determined, or it shall mean, where the Market Value needs to be determined
for an Optionholder or a Grantee in U.S. dollars, the weighted average of the
trading prices of the Shares on the New York Stock Exchange on the last five
(5) trading days preceding the date on which such value needs to be determined.
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"Option" shall mean an option granted pursuant to Section 5 hereof to
purchase a Share and shall include an Incentive Stock Option.
"Option Agreement" shall have the meaning ascribed thereto in Section 5.
"Option Period" shall mean the period during which an Option granted under
the Plan may be exercised as determined in accordance with the provisions of
Section 5.3.
"Optionholder" shall mean an Eligible Participant to whom a Grant of Options
has been made pursuant to Section 5 hereof.
"Plan" shall mean the Teleglobe Inc. Amended and Restated Stock Option Plan
as set forth herein and as may be amended from time to time.
"Plan Agreements" shall have the meaning ascribed thereto in Section 6
hereof.
"Restricted Share" shall mean a right granted to an Eligible Participant to
acquire Shares, as provided in Section 8.
"Retirement" shall mean retirement in accordance with the provisions of any
pension or retirement plan of Teleglobe or of any of its Subsidiaries
covering the Optionholder or the Grantee, as the case may be (a "Pension
Plan"), retirement pursuant to a special pension arrangement entered into by
Teleglobe or any of its Subsidiaries and an Optionholder or a Grantee, as the
case may be, and applicable in lieu of, or in addition to a Pension Plan, or
shall have the meaning ascribed thereto by the Board in any Option Agreement
or Plan Agreement, as the case may be.
"Share Appreciation Right" shall mean a right granted to an Eligible
Participant to receive a payment in the form of cash or Shares, as provided
in Section 7.
"Shares" shall mean the common shares of Teleglobe and "Share" shall mean one
of such common shares, which common shares are subject to adjustments and
modifications provided for in Section 12.
"Subsidiary" or "Subsidiaries" shall have the meaning ascribed thereto in the
Canada Business Corporations Act, R.S.C. 1985, c.C?44, as amended.
"Teleglobe" shall mean Teleglobe Inc. or its successors.
"U.S. Securities Act" shall mean the U.S. Securities Act of 1934, as amended.
3. Administration
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The Plan will be administered by the Board. The Board may, in its sole
discretion, determine, by resolution describing in details the terms of such
delegation, delegate (i) to the Committee (which Committee will consist of
not less than three (3) members of the Board) or (ii) to the Chairman of
Teleglobe, in whole or in part, its administrative duties with respect to the
Plan. Notwithstanding the foregoing, the Board shall not be entitled to
delegate to the Chairman of Teleglobe the authority to grant Options to
himself or herself, as the case may be. If the Committee or the Chairman of
Teleglobe is appointed to administer the Plan or a portion thereof, all
relevant references in this Plan to the Board will be deemed to be references
to the Committee or to the Chairman of Teleglobe, as the case may be.
Subject to the terms and conditions of the Plan, the Board has the authority,
without limitation, to:
(i) determine which Eligible Participants are to be granted Options to
purchase Shares or other types of Grants pursuant to the terms of the
Plan;
(ii) grant Options or other types of Grants to Eligible Participants and
determine the number of Shares to be issued pursuant to such Options or,
as the case may be, the number of the other types of Grants provided for
in the Plan;
(iii) determine the terms under which Options and the other types of
Grants are granted;
(iv) prescribe the form of Option Agreement and Plan Agreement;
(v) prescribe the form of notice from an Optionholder to Teleglobe giving
notice of the exercise or partial exercise of an Option previously
granted to the Optionholder;
(vi) interpret the Plan, the Option Agreements or the Plan Agreements,
determine all questions arising out of and resolve any dispute regarding
the Plan, the Option Agreements or the Plan Agreements and any Grants
pursuant to the Plan;
(vii) subject to any required regulatory or shareholder approval, amend,
suspend or terminate the Plan in whole or in part at any time;
(viii) prescribe, amend and rescind rules and regulations relating to the
Plan;
(ix) adopt any rules, procedures or methods of exercise as permitted by law
and deemed necessary or convenient to the administration of the Plan;
and
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(x) otherwise administer the Plan in any manner consistent with applicable
laws, rules and regulations.
To the extent required for transactions under the Plan to qualify for
exemptions available under Rule 16b?3 promulgated under the U.S. Securities
Act, the Board shall delegate its authority to the Committee and each member
of the Committee will be a "disinterested person" within the meaning of Rule
16b?3. To the extent required for compensation realized from Grants under
the Plan to be deductible by Teleglobe or any of its Subsidiaries pursuant to
Section 162(m) of the Code, the members of the Committee will be "outside
directors" within the meaning of Section 162(m) of the Code.
The determination by the Board on all matters relating to the Plan, any
Option Agreement or any Plan Agreement will be conclusive and binding on
Teleglobe, the Eligible Participants, the Optionholders, the Grantees and all
other affected persons.
No member of the Board or of the Committee or, to the extent applicable, the
Chairman will be liable for any action or determination made in good faith
with respect to the Plan, the Option Agreements, the Plan Agreements or any
Grant under the Plan.
4. Shares Reserved
The maximum number of Shares that are issuable under the Plan is twenty-three
million (23,000,000) subject to adjustment under Section 12. Notwithstanding
the foregoing but subject to the adjustment under Section 12, no more than
twenty-two million (22,000,000) Shares will be issued upon the exercise of
Options and no more than one million (1,000,000) Shares will be issued for
Restricted Shares under Section 8.1 and/or upon the exercise of Share
Appreciation Rights and/or Incentive Share Units under Sections 7.1 and 9.1,
respectively.
5. Terms and Conditions of Options
The Options covered by a Grant shall be evidenced by a written agreement (the
"Option Agreement") and by such other instrument, in such form as the Board
shall from time to time approve. Upon the Grant of an Option, Teleglobe will
deliver to the Optionholder an Option Agreement containing the terms of the
Option and executed by Teleglobe, and upon delivery to Teleglobe of the
Option Agreement executed by the Optionholder, such Optionholder will be a
participant in the Plan and have the right to purchase the Shares on the
terms set out in the Option Agreement and in the Plan. Except as provided
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herein, the Option Agreement cannot be modified without the consent of the
Optionholder. In the event any provision of the Option Agreement and the
Plan conflict, the provisions of the Plan will govern.
5.1 Eligibility
Options may be granted by the Board to any Eligible Participant, subject to
the limitations set forth in Article 4. The Grant Date is determined by the
Board at the time of Grant and may be on or after the date that the Board
resolves to grant the Option.
5.2 Exercise Price
The price per Share at which Shares may be subscribed for by an Optionholder
for any Option will be determined by the Board at the time of Grant but shall
not be lower than the Market Value of a Share as of the Grant Date.
5.3 Expiry Date
Subject to the provisions of Sections 5.4 and 5.5, the Board shall, from time
to time, determine the Option Period which Option Period shall not exceed ten
(10) years from the Grant Date.
5.4 Exercise Schedule
(A) The Board shall prescribe the date or dates upon which all or a portion
of the Options become exercisable and may establish performance criteria
which must be met by Teleglobe and/or its Subsidiaries in order for all
or a portion of the Options to become exercisable. Subject to Section
5.4B), and unless the Board otherwise provides, any Option or portion
thereof that is not exercisable at the time an Optionholder ceases to be
a director, an officer or an employee of Teleglobe for any reason shall
be cancelled.
(B) Notwithstanding the foregoing:
(i) the Board shall have the power to accelerate the time at which an
Option may first be exercised or the time during which an Option or
any part thereof will become exercisable including, without
limitation, prior to or in connection with a Change of Control or
in the event an Optionholder dies or his or her employment with
Teleglobe or one of its Subsidiaries is terminated due to
Disability;
(ii) if, in either case within eighteen (18) months of a Change of
Control, an Optionholder resigns after a significant change in his
or her employment conditions or if the employment of an
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Optionholder is terminated for any reason other than (y) a
Dismissal for Cause, or (z) a voluntary termination other than
after a significant change in his or her employment conditions, all
Options held by such Optionholder, whether exercisable or not
exercisable at such time shall become exercisable and may be
exercised during the period ending ninety (90) days after such
resignation or termination.
5.5 Early Expiry
(A) Right to Exercise in the Event of Termination of Employment
Any Option exercisable at the time an Optionholder ceases to be a director,
an officer or an employee of Teleglobe or its Subsidiaries for any reason
other than death, Retirement or termination of his or her employment as a
result of Disability shall expire on a date which is the earlier of (i) the
end of the Option Period relating to such Option would otherwise expire or
(ii) thirty (30) days after the date on which the Optionholder ceases to be a
director, an officer or an employee of Teleglobe or its Subsidiaries (or such
other date as determined by the Board which date shall not be less than
thirty (30) days and not more than one hundred and eighty (180) days after
the date on which the Optionholder ceases to be a director, an officer or an
employee of Teleglobe or its Subsidiaries).
(B) Right to Exercise in the Event of Disability
Unless the Board otherwise provides, in the event of the termination of the
employment of an Optionholder by reason of Disability, the Optionholder, or
his or her legal representative, may exercise the Options covered by any
Grant of Options to the Optionholder to the extent that such Options were
exercisable on the day of the termination of employment by reason of
Disability, within twelve (12) calendar months from the date of such
termination, but in any event no later than the end of the Option Period
relating to such Options.
(C) Right to Exercise in the Event of Death
Unless the Board otherwise provides, in the event of death of an
Optionholder, either while in the employment of Teleglobe or any of its
Subsidiaries or within twenty-four (24) calendar months (or such other period
provided for under Section 5.5D)) after Retirement, the Optionholder's estate
may exercise the Options covered by any Grant to the Optionholder to the
extent such Options were exercisable on the day of the Optionholder's death,
within twelve (12) calendar months from the day of the Optionholder's death,
but in any event no later than the end of the Option Period relating to such
Options. The Optionholder's estate shall include only the executors or
administrators of such estate or any person or persons who shall have
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acquired the right to exercise such Options directly from the Optionholder by
bequest or inheritance and who deliver evidence of such status to Teleglobe.
(D) Right to Exercise in the Event of Retirement
In the event of Retirement of an Optionholder, the Optionholder may exercise
the Options covered by any Grant to the extent such Options were exercisable
on the Optionholder's date of Retirement within twenty-four (24) calendar
months from the date of such Retirement, but in any event no later than the
end of the Option Period relating to such Options.
5.6 Method of Exercise
Subject to the provisions of Sections 11 and 15, Options may be exercised, in
whole or in part, upon the Optionholder giving a notice to the person or
entity appointed from time to time by the Board to receive notices pursuant
to the terms hereof. However, the Board may at any time and from time to
time, whether before or after the exercise or purported exercise of any
Option, determine in its sole discretion that the election to exercise such
Option may be made only during such period(s), if any, as the Board may
determine.
Any notice of exercise of an Option will be accompanied by payment of the
full purchase price for the Shares being purchased. Payment may be made (i)
by cashier's or certified check payable to Teleglobe, or (ii) by delivery of
certificate(s), duly endorsed to or surrendered pursuant to Teleglobe's
attestation procedure, representing Shares with a Market Value on the date of
receipt by Teleglobe of the notice of exercise equal to part or all of the
purchase price, together with a cashier's or certified check for any balance
due to Teleglobe, or (iii) at the discretion of the Board and to the extent
permitted by law, by such other method, as the Board may from time to time
prescribe. Teleglobe will deliver to the Optionholder certificate(s) for
Shares issuable upon exercise of an Option as soon as practicable after
receipt of payment for such Shares. If the method of payment employed by the
Optionholder so require, the Optionholder may direct Teleglobe to deliver the
certificate to the Optionholder's stockbroker. In addition, if an
Optionholder's transactions are not subject to Section 16 of the U.S.
Securities Act, upon exercise of Options other than Incentive Stock Options,
the Optionholder may direct Teleglobe to issue Shares to family members,
trusts or charities.
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5.7 Incentive Stock Options
Notwithstanding anything herein to the contrary (including the right of the
Board to accelerate the right of an Optionholder to exercise all or any part
of the Options covered by a Grant), the following special provisions shall
apply to Incentive Stock Options:
(i) the aggregate Market Value (determined on the Grant Date) of the
Share(s) with respect to which Incentive Stock Options are first
exercisable by an Eligible Participant during any calendar year shall
not exceed One Hundred Thousand U.S. dollars (U.S.$100,000), or such
other limit as may be established from time to time under Section 422 of
the Code, and any Option exceeding such limit will be treated as Options
which are not Incentive Stock Options;
(ii) there shall be an obligation on any Optionholder who disposes of a Share
acquired on the exercise of an Incentive Stock Option by sale or
exchange either (A) within two (2) years after the Grant Date in respect
of the Incentive Stock Option under which the Share was acquired, or (B)
within one (1) year after the acquisition of such Share, to notify
Teleglobe of such disposition and of the amount realized upon such
disposition; and
(iii) the instrument evidencing the Incentive Stock Options covered by a
Grant shall contain such limitations and restrictions upon the
grant or exercise of Incentive Stock Options as shall be necessary
in order that such Incentive Stock Options be Incentive Stock
Options under Section 422 of the Code and may contain such other
terms not inconsistent with the terms and conditions contained in
this paragraph or with the provisions of Section 422 of the Code,
as the Board may determine.
5.8 Impact on the Reserved Shares
Any Shares subject to an Option that expires, is cancelled or terminates
without having been fully exercised may be subject to a further Option. No
fractional Shares may be issued under the Plan.
6. Terms and Conditions of Other Grants
In addition to the Grants of Options, Teleglobe may make other Grants under
the Plan in the form of Share Appreciation Rights, Restricted Shares and
Incentive Share Units. Such other Grants under the Plan will be evidenced by
written agreements (the "Plan Agreements") which will contain such provisions
as the Board may in its sole discretion deem necessary or desirable.
7. Share Appreciation Rights
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7.1 Eligibility and Exercise
The Board may grant a Share Appreciation Right on such terms and conditions
(including, without limitation, the exercise price of each such Share
Appreciation Right) as the Board will from time to time determine, subject to
the limitations set forth in Article 4. The Grantee of a Share Appreciation
Right will, subject to the terms and conditions of the Plan and the
applicable Plan Agreement, have the right to exercise such Share Appreciation
Right during the Appreciation Period by surrender to Teleglobe for
cancellation of all or a portion of the rights granted under the Plan, but
only to the extent that such rights are then exercisable.
7.2 Rights Exercise Price and Payment
The Grantee will be paid for each Share Appreciation Right exercised in
accordance with Section 7.1 an amount equal to all or a portion of the excess
(if any) of (i) the aggregate Market Value of the Shares subject to the Share
Appreciation Rights or portion thereof surrendered (determined as of the date
of exercise of such Share Appreciation Rights) over (ii) the aggregate
exercise price of the Shares subject to the Share Appreciation Rights or
portion thereof surrendered as determined in the relevant Plan Agreement.
Any payment due upon exercise of a Share Appreciation Right will be made (i)
in cash, (ii) in Shares (valued at the Market Value thereof as of the date of
exercise), or (iii) partly in cash and partly in Shares, all as determined by
the Board in its sole discretion. In the event that the Board will determine
to make such payment, in whole or in part, in Shares, no fractional Shares
will be issued and no payments will be made in lieu of fractional Shares.
7.3 Appreciation Period and Vesting Criteria
The Appreciation Period in respect of a particular Grant shall be specified
by the Board, but in all cases shall end no later than the day preceding the
tenth (10th) anniversary of the date of the Grant. The Board shall prescribe
the date or dates upon which all or a portion of the Share Appreciation
Rights become exercisable and may establish any performance criteria which
must be met by Teleglobe and/or any of its Subsidiaries in order for all or a
portion of the Share Appreciation Rights to become exercisable.
7.4 Method of Exercise for Shares
Section 5.6 shall apply mutatis mutandis to the Grantee who exercises Share
Appreciation Rights for Shares.
7.5 Termination of Employment
Any Share Appreciation Right exercisable at the time a Grantee ceases to be a
director, an officer or an employee of Teleglobe or its Subsidiaries for any
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reason other than death, Retirement or termination of his or her employment
as a result of Disability, shall expire on a date which is the earlier of (i)
the date on which the Appreciation Period ends or (ii) thirty (30) days after
the date on which the Grantee ceases to be a director, an officer or an
employee of Teleglobe or its Subsidiaries (or such other date as determined
by the Board which date shall not be less than thirty (30) days and not more
than one hundred and eighty (180) days after the date on which the Grantee
ceases to be a director, an officer or an employee of Teleglobe or its
Subsidiaries).
7.6 Disability
Unless the Board otherwise provides, in the event of the termination of the
employment of a Grantee of Share Appreciation Rights by reason of Disability,
the Grantee or his or her legal representative may exercise the Share
Appreciation Rights covered by any Grant of Share Appreciation Rights to the
Grantee to the extent that such Share Appreciation Rights were exercisable on
the day of the termination of employment by reason of Disability, within
twelve (12) calendar months from the date of such termination, but in any
event no later than the end of the Appreciation Period relating to such Share
Appreciation Rights.
7.7 Death
Unless the Board otherwise provides, in the event of death of a Grantee of
Share Appreciation Rights, either while in the employment of Teleglobe or any
of its Subsidiaries or within twenty-four (24) calendar months (or such other
period provided for under Section 7.8) after Retirement, the Grantee's estate
may exercise the Share Appreciation Rights covered by any Grant to the
Grantee to the extent that such Share Appreciation Rights were exercisable on
the day of the Grantee's death within twelve (12) calendar months from the
day of the Grantee's death, but in any event no later than the end of the
Appreciation Period relating to such Share Appreciation Rights. The
Grantee's estate shall include only the executors or administrators of such
estate or any person or persons who shall have acquired the right to exercise
such Share Appreciation Rights directly from the Grantee by bequest or
inheritance and who deliver evidence of such status to Teleglobe.
7.8 Retirement
In the event of Retirement of a Grantee of Share Appreciation Rights, the
Grantee may exercise the Share Appreciation Rights covered by any Grant to
the extent that such Share Appreciation Rights were exercisable on the
Grantee's date of Retirement within twenty-four (24) calendar months from the
date of such Retirement, but in any event no later than the end of the
Appreciation Period relating to such Share Appreciation Rights.
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7.9 Impact on the Reserved Shares
Upon the Grant of a Share Appreciation Right, the number of Shares provided
for in Section 4 available for issuance under the Plan will be reduced by a
number equal to the number of Share Appreciation Rights so granted. If such
Share Appreciation Rights are exercised, in whole or in part for cash, or if
such Share Appreciation Rights expire or are cancelled without being
exercised, then that number of Shares covered by such Share Appreciation
Rights exercised for cash or cancelled Share Appreciation Rights will become
eligible for issuance under the Plan.
8. Restricted Shares
8.1 Grant and Eligibility
The Board may grant Restricted Shares entitling the Eligible Participant to
acquire Shares. Restricted Share Grants may be made independently or in
connection with any other Grant under the Plan. Notwithstanding the limits
set forth in Section 4, no more than twenty thousand (20,000) Restricted
Shares will be granted to any Eligible Participant in any calendar year.
8.2 Rights of the Grantee and Restriction on Transfer
Teleglobe will issue a certificate for the Shares subject to the Restricted
Shares, and the Grantee will thereupon have all the rights of a shareholder
with respect to the Restricted Shares including voting and dividend rights,
subject to the non-transferability restrictions and forfeiture provisions,
and subject to any other conditions contained in the applicable Plan
Agreements. Unless the Board determines otherwise, certificates evidencing
Restricted Shares will remain in the possession of Teleglobe until such
Restricted Shares are free of any restrictions specified under the applicable
Plan Agreements. Restricted Shares may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of except as specifically
provided herein.
8.3 Vesting Criteria
At the time of Grant, the Board will specify the date or dates (which may
depend upon or be related to the attainment of performance goals and other
conditions as specified in the Plan Agreement) on which the
non-transferability and the forfeiture provisions of the Restricted Share
will lapse. If the Grantee's compensation is subject to the deductibility
limitations of Section 162(m) of the Code, then the performance goals will be
based upon one or more of the following factors: revenue, operating income,
EBITDA; return on equity, return on assets and economic value added; or
performance of a Subsidiary or other business unit of Teleglobe on such
items, provided that the Grantee is a senior executive officer of such
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Subsidiary or other business unit. Revenue, operating income, EBITDA, return
on equity, return on assets and economic value added may be calculated for
purposes of the Plan without regard to (i) losses from discontinued
operations; (ii) extraordinary gains or losses (as defined by generally
accepted accounting principles); and (iii) the cumulative effect of changes
in accounting principles. The Board will have the sole right to set the
targets using all or some of these factors using their reasonable business
judgement and to determine whether the performance goals and other conditions
have been met.
8.4 Early Termination and Impact on the Reserved Shares
If the Grantee ceases to be a director, an officer or an employee of
Teleglobe or its Subsidiaries for any reason, before the lapse of
restrictions set forth in the applicable Plan Agreement, the Shares
representing the Restricted Shares will be cancelled and the Grantee's rights
in such Shares will be extinguished. Upon the Grant of a Restricted Share,
the number of Shares provided for in Section 4 available for issuance under
the Plan will be reduced by a number equal to the number of Restricted Shares
so granted. If such Restricted Shares expire, terminate or are cancelled
without being exercised, then that number of Shares covered by such expired,
terminated or cancelled Restricted Shares will become eligible for issuance
under the Plan.
9. Incentive Share Units
9.1 Grant and Eligibility
The Board may grant Incentive Share Units, each of which will entitle the
Grantee to receive one (1) Share at the maturity date specified in such
Grant. At the maturity date applicable to a Grant of Incentive Share Units,
Teleglobe will transfer to the Grantee one (1) fully paid and non assessable
Share for each such Incentive Share Unit. Incentive Share Unit Grants may be
made independently of or in connection with any other Grant under the Plan.
Notwithstanding the limits set forth in Section 4, no more than twenty
thousand (20,000) Incentive Share Units will be granted to any Eligible
Participant in any calendar year.
9.2 Vesting Criteria
At the time of Grant, the Board will specify the maturity date or dates
(which may depend upon or be related to the attainment of performance goals
and other conditions as specified in the Plan Agreement) on which the
Incentive Share Units will become fully vested and non-forfeitable. If the
Grantee's compensation is subject to the deductibility limitations of Section
162(m) of the Code, then the performance goals will be based upon one or more
of the following factors: revenue, operating income and EBITDA; return on
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equity, return on assets and economic value added; or performance of a
Subsidiary or other business unit of Teleglobe on such items, provided that
the grantee is a senior executive officer of such Subsidiary or other
business unit. Revenue, operating income, EBITDA, return on equity, return
on assets and economic value added may be calculated for purposes of the Plan
without regard to (i) losses from discontinued operations; (ii) extraordinary
gains or losses (as defined by generally accepted accounting principles); and
(iii) the cumulative effect of changes in accounting principles. The Board
will have the sole right to set the targets using all or some of these
factors using their reasonable business judgement and to determine whether
the performance goals and other conditions have been met and therefore
whether the Incentive Share Units are vested and non-forfeitable.
9.3 Early Termination and Impact on the Reserved Shares
If the Grantee ceases to be a director, an officer or an employee of
Teleglobe or its Subsidiaries for any reason, before the maturity date of an
Incentive Share Unit, the Grantee's rights in such Incentive Share Unit and
underlying Shares will be extinguished. Upon the Grant of Incentive Share
Units, the number of Shares provided for in Section 4 available for issuance
under the Plan will be reduced by a number equal to the number of Incentive
Shares Units so granted. If such Incentive Share Units expire, terminate or
are cancelled without being exercised, then that number of Shares covered by
such expired, terminated or cancelled Incentive Share Units will become
eligible for issuance under the Plan.
10. Non-Transferability
No Grant to any Eligible Participant under the Plan or under any Option or
Plan Agreement will be assignable, transferable or pledged, except by will or
by the laws of descent and distribution or as otherwise may be permitted,
from time to time, by applicable securities legislation, rules and
regulations. The Board may however, in its sole discretion, allow for the
transferability of Options (other than Incentive Stock Options) by the
Optionholder to:
(i) the spouse of the Optionholder;
(ii) a minor child or minor grandchild of the Optionholder; or
(iii) a trust, of which at least one (1) of the trustees is the
Optionholder and the beneficiaries of which are one (1) or more of the
persons referred to in (i) and (ii) above,
if such transfer is made without consideration.
Any Option (other than Incentive Stock Options) that are transferable are
further conditioned on the Optionholder and the persons or entities referred
to in (i) through (iii) above agreeing to abide by Teleglobe's then current
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option transfer guidelines. During the life of the Eligible Participant, all
rights granted to the Eligible Participant under the Plan or under any Option
or Plan Agreement will be exercisable only by him or her or by his or her
guardian or legal representative. Any such transfer shall be subject, as the
case may be, to the appropriate regulatory approval.
11. Rights Terminated if Dismissal for Cause
Notwithstanding any other provision of this Plan, in the event an Eligible
Participant's employment is terminated by reason of Dismissal for Cause, all
Grants to him or her under the Plan, whether for Options, Share Appreciation
Rights, Restricted Shares or Incentive Share Units, will expire on the day
immediately preceding the date of termination of employment, and will as of
such day no longer be exercisable or vested to any extent whatsoever.
12. Modifications
In the event of the subdivision, consolidation, reclassification or other
change to the Shares, the Plan and the Options granted pursuant thereto,
whether granted prior to or after such modification, shall be deemed to be
changed thereby and to apply to the shares resulting from such subdivision,
consolidation, reclassification, or other change mutatis mutandis, and
appropriate adjustments will be made to the exercise price of the Shares
under Option, subject to the right of the Board to make such other or
additional adjustment as are appropriate in the circumstances. Similar
adjustment will be made to the other types of Grants, where applicable.
Subject to any required regulatory approval, such adjustment will be
definitive and mandatory for the purposes of the Plan.
13. Compliance with Laws and Stock Exchange Rules
The Plan, the grant and exercise of Options or of other Grants under the Plan
and Teleglobe's obligation to issue Shares on exercise of Options or of other
Grants will be subject to all applicable federal, provincial and foreign laws
and the rules and regulations of any stock exchange on which the Shares are
listed for trading. Each Eligible Participant shall agree to comply with
such laws, rules and regulations and to provide Teleglobe with any
information or undertaking required to comply with such laws, rules and
regulations. Shares issued to Optionholders or to a Grantee pursuant to the
exercise of Options or of other types of Grants may be subject to limitation
on sale or resale under applicable securities laws.
14. Stock Exchange Listing
Teleglobe shall make the listing applications necessary in order to effect
the listing of the Shares to be issued upon the exercise of Options or of
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other types of Grants on all stock exchanges upon which the Shares are then
listed.
15. Withholding Taxes
Whenever under the Plan there is a transfer of Shares or a cash payment, or
the vesting of a Grant, such transfer payment or vesting will be subject to
applicable withholding requirements imposed by any tax or other law.
Teleglobe will have the right to require as a condition of any such transfer,
payment or vesting that the Optionholder or the Grantee, as the case may be,
remit an amount sufficient in the opinion of Teleglobe to satisfy all
withholding requirements related thereto. Teleglobe will be entitled to
deduct such amount from any cash payment. If the Optionholder or the
Grantee, as the case may be, has used cash as payment of the purchase price,
the Optionholder or the Grantee, as the case may be, must satisfy the
foregoing condition by making a cash payment to Teleglobe equal to the tax to
be withheld. If the Optionholder or the Grantee, as the case may be, has
used Shares as payment of the purchase price for the Shares being purchased,
the Optionholder or the Grantee, as the case may be, must satisfy the
foregoing condition by having Teleglobe withhold Shares with a value equal to
the amount of tax to be withheld. Such Shares will be valued at Market Value
as of the date of exercise.
16. Nature of Payments
Any and all payments of Shares or cash hereunder will be granted, issued or
paid in consideration of services performed for Teleglobe or for its
Subsidiaries by the Optionholder or the Grantee, as the case may be.
All such grants, issuances and payments will constitute a special incentive
payment to the Optionholder or the Grantee, as the case may be, and will not,
unless otherwise determined by the Board, be taken into account in computing
the amount of salary or regular compensation of the Optionholder or the
Grantee, as the case may be, for the purposes of determining any pension,
retirement, death or other benefits under (i) any pension, retirement, life
insurance or other benefit plan of Teleglobe or any of its Subsidiaries or
(ii) any agreement between Teleglobe or any of its Subsidiaries and the
Optionholder or the Grantee, as the case may be.
17. Non-Uniform Determinations
The Board's determinations under the Plan need not be uniform and may be made
by it selectively among persons who receive, or are eligible to receive,
Grants under the Plan (whether or not such persons are similarly situated).
Without limiting the generality of the foregoing, the Board will be entitled,
among other things, to make non-uniform and selective determinations, and to
enter into non-uniform and selective Option Agreements or Plan Agreements, as
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to (i) the directors, officers and key employees to receive Grants under the
Plan, (ii) the terms and provisions of Grants under the Plan and (iii) the
grant or the withholding by the Board of its consent to the exercise of Share
Appreciation Rights (pursuant to Sections 5.6 and 7.4).
18. Final Provisions
The participation in the Plan of an Eligible Participant shall be entirely
optional and shall not be interpreted as conferring upon an Eligible
Participant any right or privilege whatsoever, except for the rights and
privileges set out expressly in the Plan. Neither the Plan nor any act that
is done under the terms of the Plan shall be interpreted as restricting the
right of Teleglobe or any of its Subsidiaries to terminate the employment of
an Eligible Participant, an Optionholder or a Grantee at any time. Subject
to the terms of the Plan, any notice of dismissal given to an Eligible
Participant, an Optionholder or a Grantee at the time his or her employment
is terminated, or any payment in the place and stead of such notice, or any
combination of the two, shall not have the effect of extending the duration
of the employment for purposes of the Plan.
The Plan does not provide for any guarantee in respect of any loss or profit
which may result from fluctuations in the price of the Shares.
Teleglobe and its Subsidiaries shall assume no responsibility as regards the
tax consequences that participation in the Plan will have for an Eligible
Participant, and Eligible Participants are urged to consult their own tax
advisors in such regard.
The Plan, any Option, Grants or Agreements hereunder shall be governed and
interpreted according to the laws of the Province of Quebec and the laws of
Canada applicable therein.
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