<PAGE>
As filed with the Securities and Exchange Commission on April 15, 1999.
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
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GST TELECOMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
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CANADA N/A
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
4001 MAIN STREET
VANCOUVER, WA 98663
(Address of principal executive offices)
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1999 STOCK PLAN
AMENDED AND RESTATED 1996 EMPLOYEE STOCK PURCHASE PLAN
1999 SUPPLEMENTAL EMPLOYEE STOCK PURCHASE PLAN
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DANIEL L. TRAMPUSH
CHIEF FINANCIAL OFFICER
GST TELECOMMUNICATIONS, INC.
4001 MAIN STREET
VANCOUVER, WA 98663
(360) 356-7100
(Name, address and telephone number of agent for service)
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Copy to:
J. Jeffrey Mayhook
VP, Corporate Counsel
GST Telecommunications, Inc.
4001 Main Street
Vancouver, WA 98663
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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- --------------------------------------------------------------------------------------------------------------------------------
Title of Securities to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Offering Price Aggregate Registration
Per Share Offering Price Fee
- ------------------------------------------------- ------------------- -------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 2,000,000 $ 13.96875 (1) $27,937,500.00 $ 7,766.63
Common Stock 600,000 $ 13.96875 (1) $ 8,381,250.00 $ 2,329.99
Common Stock 150,000 $4.83 $ 724,500.00 $ 201.41
--------- -------------- ----------
Total 2,750,000 $37,043,250.00 $10,298.03
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</TABLE>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
computing the amount of the registration fee based on the prices of the
Company's Common Stock as reported on the Nasdaq National Market on April
14, 1999.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
GST Telecommunications, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the registrant document referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (No. 000-22330) filed pursuant to
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a 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
Incorporated by reference to the corresponding item of the registrant's
Registration Statement on Form S-8 (Registration No. 333-53981).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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<PAGE>
4.1 1999 Stock Plan
4.2 Form of Stock Option Agreement for 1999 Stock Plan
4.3 Amended and Restated 1996 Employee Stock Purchase Plan and
Exhibits
4.4 1999 Supplemental Employee Stock Purchase Plan and Exhibits
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation, as to legality of securities being registered
23.1 Independent Auditors' Consent
23.2 Consent of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation (contained in Exhibit 5.1)
24.1 Power of Attorney
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING 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 Securities Act of 1933;
(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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 (ss.239.13 of this chapter)
or Form S-8 (ss.239.16(b) of this chapter), 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 Exchange Act 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.
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<PAGE>
(b) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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.
(h) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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.
II-3
<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 on 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 Vancouver, State of Washington, on April 15, 1999.
GST TELECOMMUNICATIONS, INC.
By: /s/ Joseph A. Basile, Jr.
------------------------------------------------
Joseph A. Basile, Jr.
President, Chief Executive Officer and Director
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph A. Basile, Jr. and Daniel L.
Trampush, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------------------- --------------------------------------- ----------------
<S> <C> <C>
/s/ Robert A. Ferchat Chairman of the Board April 15, 1999
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/s/ Joseph A. Basile, Jr. President, Chief Executive Officer, and April 15, 1999
- ---------------------------------------- Director (PRINCIPAL EXECUTIVE OFFICER)
/s/ Daniel L. Trampush Senior Vice President and Chief Financial April 15, 1999
- ---------------------------------------- Officer (PRINCIPAL FINANCIAL OFFICER)
/s/ Michael R. Vestal Treasurer (PRINCIPAL ACCOUNTING OFFICER) April 15, 1999
- ----------------------------------------
/s/ Stanley M.D. Beck Director April 15, 1999
- ----------------------------------------
/s/ George B. Cobbe Director April 15, 1999
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/s/ Joseph G. Fogg, III Director April 15, 1999
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/s/ David W. Garrison Director April 15, 1999
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</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ A. Roy Megarry Director April 15, 1999
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/s/ Mitsuhiro Naoe Director April 15, 1999
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</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C> <C>
4.1 1999 Stock Plan
4.2 Form of Stock Option Agreement for 1999 Stock Plan
4.3 Amended and Restated 1996 Employee Stock Purchase Plan and
Exhibits
4.4 1999 Supplemental Employee Stock Purchase Plan and Exhibits
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation, as to legality of securities being registered
23.1 Independent Auditors' Consent
23.2 Consent of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation (contained in Exhibit 5.1)
24.1 Power of Attorney
</TABLE>
II-7
<PAGE>
Exhibit 4.1
GST TELECOMMUNICATIONS, INC.
1999 STOCK PLAN
1. PURPOSES OF THE PLAN. The purposes of this 1999 Stock Plan are:
- to attract and retain the best available personnel for
positions of substantial responsibility,
- to provide additional incentive to Employees, Directors and
Consultants, and
- to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or
Nonstatutory Stock Options, as determined by the Administrator at the time of
grant.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" means the Board or one or more Committees as shall
be administering the Plan, in accordance with Section 4 of the Plan.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U. S. state corporate laws, U.S.
federal and state securities laws, the Code, Canadian federal corporate law,
provincial securities legislation, rules and policies, any stock exchange or
quotation system on which the Common Shares are listed or quoted and the
applicable laws of any foreign country or jurisdiction where Options are, or
will be, granted under the Plan.
(c) "BOARD" means the Board of Directors of the Company.
(d) "CODE" means the U.S. Internal Revenue Code of 1986, as amended.
(e) "COMMITTEE" means a committee of Directors appointed by the Board
in accordance with Section 4 of the Plan.
(f) "COMMON SHARES" means the common shares of the Company.
(g) "COMPANY" means GST Telecommunications, Inc., a Canadian
corporation.
(h) "CONSULTANT" means any person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render ongoing services to such entity.
(i) "DIRECTOR" means a member of the Board.
(j) "DISABILITY" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
<PAGE>
(k) "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an Employee in the case of (i) any leave of
absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor.
For purposes of Incentive Stock Options, no such leave may exceed ninety days,
unless reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by the
Company is not so guaranteed, on the 181st day of such leave any Incentive Stock
Option held by the Optionee shall cease to be treated as an Incentive Stock
Option and shall be treated for tax purposes as a Nonstatutory Stock Option.
Neither service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(l) "EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
(m) "FAIR MARKET VALUE" means, as of any date, the value of Common
Shares, expressed in the currency of the United States, determined as follows:
(i) If the Common Shares are listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the date of grant, as reported in THE WALL
STREET JOURNAL or such other source as the Administrator deems reliable and if
the Common Shares are listed on more than one exchange or system, then the Fair
Market Value shall be the closing sales price of such Shares as quoted on the
exchange or system which is the primary exchange or system for the Common
Shares;
(ii) If the Common Shares are regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Shares shall be the mean between the high bid and low asked
prices for the Common Shares on the last market trading day prior to the date of
grant, as reported in THE WALL STREET JOURNAL or such other source as the
Administrator deems reliable; or
(iii) In the absence of an established market for the Common
Shares, the Fair Market Value shall be determined in good faith by the
Administrator.
(n) "INCENTIVE STOCK OPTION" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(o) "NONSTATUTORY STOCK OPTION" means an Option not intended to qualify
as an Incentive Stock Option.
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<PAGE>
(p) "NOTICE OF GRANT" means a written or electronic notice evidencing
certain terms and conditions of an individual Option grant. The Notice of Grant
is part of the Option Agreement.
(q) "OFFICER" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(r) "OPTION" means a stock option granted pursuant to the Plan.
(s) "OPTION AGREEMENT" means an agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. The
Option Agreement is subject to the terms and conditions of the Plan.
(t) "OPTION EXCHANGE PROGRAM" means a program whereby outstanding
Options are surrendered in exchange for Options with a lower exercise price.
(u) "OPTIONED STOCK" means the Common Shares subject to an Option.
(v) "OPTIONEE" means the holder of an outstanding Option granted under
the Plan.
(w) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(x) "PLAN" means this 1999 Stock Plan, as amended from time to time.
(y) "RULE 16B-3" means Rule 16b-3 of the Exchange Act or any successor
to Rule 16b-3, as in effect when discretion is being exercised with respect to
the Plan.
(z) "SECTION 16(B)" means Section 16(b) of the Exchange Act.
(aa) "SERVICE PROVIDER" means an Employee, Director or Consultant.
(bb) "SHARE" means a Common Share, as adjusted in accordance with
Section 12 of the Plan.
(cc) "SHARE COMPENSATION ARRANGEMENT" means any stock option, stock
option plan, employee stock purchase plan or any other compensation or incentive
mechanism involving the issuance or potential issuance of Common Shares to one
or more Service Providers, including a share purchased from treasury which is
financially assisted by the Company by way of loan, guarantee or otherwise.
(dd) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 12 of
the Plan, the maximum aggregate number of Common Shares which may be reserved
for issuance under the Plan is 2,000,000 Common Shares.
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<PAGE>
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an Option Exchange Program, the
unpurchased Common Shares which were subject thereto shall become available for
future grant or sale under the Plan (unless the Plan has terminated); PROVIDED,
however, that Common Shares that have actually been issued under the Plan,
whether upon exercise of an Option, shall not be returned to the Plan and shall
not become available for future distribution under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE.
(i) MULTIPLE ADMINISTRATIVE BODIES. The Plan may be administered by
different Committees with respect to different groups of Service Providers.
(ii) SECTION 162(M). To the extent that the Administrator
determines it to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more "outside
directors" within the meaning of Section 162(m) of the Code.
(iii) RULE 16B-3. To the extent desirable to qualify transactions
hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder
shall be structured to satisfy the requirements for exemption under Rule 16b-3.
(iv) OTHER ADMINISTRATION. Other than as provided above, the Plan
shall be administered by (A) the Board or (B) a Committee, which committee shall
be constituted to satisfy Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the Plan,
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options may be granted
hereunder;
(iii) to determine the number of Common Shares to be covered by
each Option granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Option granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options or may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction
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<PAGE>
or limitation regarding any Option or the Common Shares relating thereto, based
in each case on such factors as the Administrator, in its sole discretion, shall
determine;
(vi) subject to regulatory approval, to reduce the exercise price
of any Option to the then current Fair Market Value if the Fair Market Value of
the Common Shares covered by such Option shall have declined since the date the
Option was granted;
(vii) to institute an Option Exchange Program;
(viii) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
(ix) to prescribe, amend and rescind rules and regulations relating
to the Plan, including rules and regulations relating to subplans established
for the purpose of qualifying for preferred tax treatment under tax laws of a
country other than the United States;
(x) to modify or amend each Option (subject to regulatory approval
and Section 14 of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is otherwise
provided for in the Plan;
(xi) to authorize any person to execute on behalf of the Company
any instrument required to effect the grant of an Option previously granted by
the Administrator;
(xii) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. The Administrator's decisions,
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options.
5. ELIGIBILITY. Nonstatutory Stock Options may be granted to Service
Providers. Incentive Stock Options may be granted only to Employees.
6. LIMITATIONS.
(a) Each Option shall be designated in the Option Agreement as either
an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Common Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Common Shares shall be
determined as of the time the Option with respect to such Common Shares is
granted.
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<PAGE>
(b) Neither the Plan nor any Option shall confer upon an Optionee any
right with respect to continuing the Optionee's relationship as a Service
Provider with the Company, nor shall they interfere in any way with the
Optionee's right or the Company's right to terminate such relationship at any
time, with or without cause.
(c) The following limitations shall apply to grants of Options:
(i) subject to subsections (d) and (e) below, no Service Provider
shall be granted, in any fiscal year of the Company, Options to purchase more
than 750,000 Common Shares.
(ii) in consideration of his or her agreeing to become a Service
Provider to the Company, a Service Provider may be granted Options to purchase
up to an additional 750,000 Common Shares which shall not count against the
limit set forth in subsection (i) above.
(iii) the foregoing limitations shall be adjusted proportionately
in connection with any change in the Company's capitalization as described in
Section 12.
(iv) if an Option is cancelled in the same fiscal year of the
Company in which it was granted (other than in connection with a transaction
described in Section 12), the cancelled Option will be counted against the
limits set forth in subsections (i) and (ii) above. For this purpose, if the
exercise price of an Option is reduced (subject to regulatory approval), the
transaction will be treated as a cancellation of the Option and the grant of a
new Option.
(d) Notwithstanding the foregoing, the maximum aggregate number of
Common Shares subject to Options granted under this Plan and any other Share
Compensation Arrangement held by any one Service Provider shall not exceed that
number of shares equal to five percent (5%) of the outstanding Common Shares of
the Company.
(e) No Option may be granted to an insider (as such term is defined in
the Company Manual of The Toronto Stock Exchange) if such grant could result, at
any time, in there being:
(i) reserved for issuance pursuant to Options granted to insiders
such number of Common Shares of the Company as would exceed ten percent (10%) of
the outstanding Common Shares;
(ii) issued to insiders under this Plan or any other Share
Compensation Arrangement, within a one-year period, such number of Common Shares
as would exceed ten percent (10%) of the outstanding Common Shares; or
(iii) issued under this Plan or any other Share Compensation
Arrangement to any one insider and such insider's associates (as such term is
defined in the Company Manual of The Toronto Stock Exchange), within a one-year
period, such number of Common Shares as would exceed five percent (5%) of the
outstanding Common Shares;
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<PAGE>
unless the Plan is approved by a majority of the votes cast at a meeting of the
Company's shareholders in accordance with all applicable requirements of the
Stock Exchanges, including the The Toronto Stock Exchange, other than votes
attaching to securities beneficially owned by:
(i) insiders to whom Common Shares may be issued pursuant to the
Plan; and
(ii) associates of such insiders. For the purpose of such
shareholder approval, holders of non-voting and subordinate voting Common Shares
(as defined in Appendix E to the Company Manual of The Toronto Stock Exchange)
may be entitled to vote with the holders of any class of shares of the Company
which otherwise carry greater voting rights, on a basis proportionate to their
respective residual equity interests in the Company.
(f) For the purposes of the limitations set forth in subsections (d)
and (e):
(i) any entitlement to acquire Common Shares granted pursuant to
this Plan or any other Share Compensation Arrangement prior to the Optionee
becoming an insider is to be excluded; and
(ii) the number of Common Shares outstanding is to be determined on
a non-diluted basis and on the basis of the number of Common Shares outstanding
at the time of the reservation or issuance, as the case may be, excluding Common
Shares issued under this Plan or any other Share Compensation Arrangement over
the preceding one-year period.
7. TERM OF PLAN. Subject to Sections 18 and 19 of the Plan, the Plan shall
become effective upon its adoption by the Board. It shall continue in effect for
a term of ten (10) years unless terminated earlier under Section 14 of the Plan.
8. TERM OF OPTION. The term of each Option shall be stated in the Option
Agreement. In the case of an Incentive Stock Option, the term shall be ten (10)
years from the date of grant or such shorter term as may be provided in the
Option Agreement. Moreover, in the case of an Incentive Stock Option granted to
an Optionee who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option shall be five (5) years from the date of grant or such
shorter term as may be provided in the Option Agreement provided that each
Option will expire on a date which shall not be later than the earlier of (A)
the date which is the tenth anniversary of the date on which the Option is
granted and (B) the latest date permitted under the applicable rules and
regulations of all regulatory authorities to which the Company is subject,
including any Stock Exchange.
9. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per Share exercise price for the Common Shares
to be issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
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<PAGE>
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive Stock Option
is granted, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the
per Share exercise price shall be no less than 110% of the Fair Market Value per
Share on the date of grant.
(B) granted to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator but shall not in any
event be less than 100% of the Fair Market Value per Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted with a
per Share exercise price of less than 100% of the Fair Market Value per Share on
the date of grant pursuant to a merger or other corporate transaction.
(b) WAITING PERIOD AND EXERCISE DATES. At the time an Option is
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised.
(c) FORM OF CONSIDERATION. Subject to Applicable Laws, the
Administrator shall determine the acceptable form of consideration for
exercising an Option, including the method of payment. In the case of an
Incentive Stock Option, the Administrator shall determine the acceptable form of
consideration at the time of grant. Such consideration may consist entirely of:
(i) cash;
(ii) bank draft or money order;
(iii) other Common Shares which (A) in the case of Common Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six months on the date of surrender, and (B) have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Common Shares
as to which said Option shall be exercised;
(iv) cash received by a broker as agent for the Company in advance
of the issuance and receipt of Shares by the broker in connection with a broker
sale program;
(v) any combination of the foregoing methods of payment; or
(vi) such other consideration and method of payment for the
issuance of Common Shares to the extent permitted by Applicable Laws.
10. EXERCISE OF OPTION.
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<PAGE>
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option granted
hereunder shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator and set forth
in the Option Agreement. Unless the Administrator provides otherwise, vesting of
Options granted hereunder shall be tolled during any unpaid leave of absence. An
Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Common Shares with respect to which the Option is exercised.
Full payment may consist of any consideration and method of payment authorized
by the Administrator and permitted by the Option Agreement and the Plan. Common
Shares issued upon exercise of an Option shall be issued in the name of the
Optionee or, if requested by the Optionee, in the name of the Optionee and his
or her spouse. Until the Common Shares are issued (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company), no right to vote or receive dividends or any other rights
as a shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. The Company shall issue (or cause to be issued) such
Common Shares promptly after the Option is exercised. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the
Common Shares are issued, except as provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of Common
Shares thereafter available, both for purposes of shares reserved for issuance
under the Plan and for sale under the Option, by the number of Common Shares as
to which the Option is exercised.
(b) TERMINATION OF RELATIONSHIP AS A SERVICE PROVIDER. If an Optionee
ceases to be a Service Provider, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option within such period of
time as is specified in the Option Agreement to the extent that the Option is
vested on the date of termination (but in no event later than the expiration of
the term of such Option as set forth in the Option Agreement). In the absence of
a specified time in the Option Agreement, the Option shall remain exercisable
for three (3) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Common Shares covered by the unvested portion of the Option shall revert to the
Plan. If, after termination, the Optionee does not exercise his or her Option
within the time specified by the Administrator, the Option shall terminate, and
the Common Shares covered by such Option shall revert to the Plan.
(c) DISABILITY OF OPTIONEE. If an Optionee ceases to be a Service
Provider as a result of the Optionee's Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the Option Agreement
to the extent the Option is vested on the date of termination (but in no event
later than the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement, the
Option shall remain exercisable for twelve (12) months following the Optionee's
termination. If, on the date of termination, the Optionee is not vested as to
his or her entire Option, the Common Shares covered by the unvested portion of
the Option shall revert to the Plan. If, after termination, the Optionee does
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not exercise his or her Option within the time specified herein, the Option
shall terminate, and the Common Shares covered by such Option shall revert to
the Plan.
(d) DEATH OF OPTIONEE. If an Optionee dies while a Service Provider,
the Option may be exercised within such period of time as is specified in the
Option Agreement (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquires the right to exercise the Option by bequest, inheritance, or
by operation of law but only to the extent that the Option is vested on the date
of death. In the absence of a specified time in the Option Agreement, the Option
shall remain exercisable for twelve (12) months following the Optionee's death.
If, at the time of death, the Optionee is not vested as to his or her entire
Option, the Common Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. The Option may be exercised by the executor or
administrator of the Optionee's estate or, if none, by the person(s) entitled to
exercise the Option under the Optionee's will or the laws of descent or
distribution. If the Option is not so exercised within the time specified
herein, the Option shall terminate, and the Common Shares covered by such Option
shall revert to the Plan.
11. NON-TRANSFERABILITY OF OPTIONS. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by
the shareholders of the Company and Applicable Law, the number of Common Shares
covered by each outstanding Option, and the number of Common Shares which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per Share of Common Shares covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued Common Shares resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Shares, or any other similar increase or decrease
in the number of issued Common Shares effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Company of shares of any class, or
securities convertible into shares of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of Common
Shares subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Common
Shares as to which the Option would not otherwise be exercisable. In addition,
the Administrator may provide that any
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Company repurchase option applicable to any Common Shares purchased upon
exercise of an Option shall lapse as to all such Common Shares, provided the
proposed dissolution or liquidation takes place at the time and in the manner
contemplated. To the extent it has not been previously exercised, an Option will
terminate immediately prior to the consummation of such proposed action.
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, each outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation. In the event that the successor corporation refuses to
assume or substitute for the Option, the Optionee shall fully vest in and have
the right to exercise the Option as to all of the Optioned Stock, including
Common Shares as to which it would not otherwise be vested or exercisable. If an
Option becomes fully vested and exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Administrator shall
notify the Optionee in writing or electronically that the Option shall be fully
vested and exercisable for a period of fifteen (15) days from the date of such
notice, and the Option shall terminate upon the expiration of such period. For
the purposes of this paragraph, the Option shall be considered assumed if,
following the merger or sale of assets, the option confers the right to purchase
or receive, for each Share of Optioned Stock subject to the Option immediately
prior to the merger or sale of assets, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Shares for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Common
Shares); provided, however, that if such consideration received in the merger or
sale of assets is not solely Common Shares of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Option,
for each Share of Optioned Stock subject to the Option, to be solely Common
Shares of the successor corporation or its Parent equal in fair market value to
the per share consideration received by holders of Common Shares in the merger
or sale of assets.
13. DATE OF GRANT. The date of grant of an Option shall be, for all
purposes, the date on which the Administrator makes the determination granting
such Option, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Optionee within a
reasonable time after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. Subject to regulatory approval, the
Board may at any time amend, alter, suspend or terminate the Plan.
(b) SHAREHOLDER APPROVAL. The Company shall obtain shareholder approval
of any Plan amendment to the extent necessary and desirable to comply with
Applicable Laws.
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the
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Optionee and the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it hereunder with
respect to Options granted under the Plan prior to the date of such termination.
15. CONDITIONS UPON ISSUANCE OF COMMON SHARES.
(a) LEGAL COMPLIANCE. Common Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance and
delivery of such Common Shares shall comply with Applicable Laws and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
(b) PROSPECTUS AND REGISTRATION EXEMPTIONS. The Company shall not be
required to issue any Common Shares upon exercise of an Option unless the
issuance thereof is exempt from the requirement for the Company to prepare and
file a prospectus or registration statement under Applicable Law to qualify the
distribution thereof and is exempt from the requirement to effect any such trade
through a securities dealer or for the Company to seek registration therefor.
(c) INVESTMENT REPRESENTATIONS. As a condition to the exercise of an
Option, the Company may require the person exercising such Option to represent
and warrant at the time of any such exercise that the Common Shares are being
purchased only for investment and without any present intention to sell or
distribute such Common Shares if, in the opinion of counsel for the Company,
such a representation is required.
16. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Common Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Common Shares as to which such
requisite authority shall not have been obtained.
17. RESERVATION OF COMMON SHARES. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Common Shares
as shall be sufficient to satisfy the requirements of the Plan.
18. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the Plan is
adopted. Such shareholder approval shall be obtained in the manner and to the
degree required under Applicable Laws.
19. REGULATORY APPROVAL. The Company will seek approval of the Plan by all
applicable regulatory authorities (including the relevant stock exchanges) to
the extent the Company deems such approval desirable.
20. RESTRICTIONS ON REPURCHASE. Notwithstanding any other provisions
hereof, any repurchase of Options by the Company shall be subject to compliance
with all Applicable Laws, and no purchase shall be made in circumstances where
there are reasonable grounds for believing that the Company is, or would after
the payment be, unable to pay its liabilities as they become due or the
realizable value of the Company's assets after the payment being less than
specified amounts, and an
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exemption being available from any requirement that the Company make an offer to
all holders to repurchase its own Shares.
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Exhibit 4.2
GST TELECOMMUNICATIONS, INC.
1999 STOCK PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall
have the same defined meanings in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
[Optionee's Name and Address]
You have been granted an option to purchase Common Stock of the
Company, subject to the terms and conditions of the Plan and this Option
Agreement, as follows:
Grant Number
----------------------------------
Date of Grant
----------------------------------
Vesting Commencement Date
----------------------------------
Exercise Price per Share $
----------------------------------
Total Number of Shares Granted
----------------------------------
Total Exercise Price $
----------------------------------
Type of Option: Incentive Stock Option
-----
Nonstatutory Stock Option
-----
Term/Expiration Date:
----------------------------------
VESTING SCHEDULE:
This Option may be exercised, in whole or in part, in accordance with
the following schedule:
[ ].
<PAGE>
TERMINATION PERIOD:
This Option may be exercised for [_____] [days/months] after Optionee
ceases to be a Service Provider. Upon the death or Disability of the Optionee,
this Option may be exercised for [one year] after Optionee ceases to be a
Service Provider. In no event shall this Option be exercised later than the
Term/Expiration Date as provided above.
I. AGREEMENT
A. GRANT OF OPTION.
The Plan Administrator of the Company hereby grants to the
Optionee named in the Notice of Grant attached as Part I of this Agreement (the
"Optionee") an option (the "Option") to purchase the number of Shares, as set
forth in the Notice of Grant, at the exercise price per share set forth in the
Notice of Grant (the "Exercise Price"), subject to the terms and conditions of
the Plan, which is incorporated herein by reference. Subject to Section 14(c) of
the Plan, in the event of a conflict between the terms and conditions of the
Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
If designated in the Notice of Grant as an Incentive Stock
Option ("ISO"), this Option is intended to qualify as an Incentive Stock Option
under Section 422 of the Code. However, if this Option is intended to be an
Incentive Stock Option, to the extent that it exceeds the $100,000 rule of Code
Section 422(d) it shall be treated as a Nonstatutory Stock Option ("NSO").
A. EXERCISE OF OPTION.
1. RIGHT TO EXERCISE. This Option is exercisable during its
term in accordance with the Vesting Schedule set out in the Notice of Grant
and the applicable provisions of the Plan and this Option Agreement.
2. METHOD OF EXERCISE. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit A (the
"Exercise Notice"), which shall state the election to exercise the Option,
the number of Shares in respect of which the Option is being exercised (the
"Exercised Shares"), and such other representations and agreements as may be
required by the Company pursuant to the provisions of the Plan. The Exercise
Notice shall be completed by the Optionee and delivered to the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise
Price as to all Exercised Shares. This Option shall be deemed to be exercised
upon receipt by the Company of such fully executed Exercise Notice
accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with Applicable Laws. Assuming
such compliance, for income tax purposes the Exercised Shares shall be
considered transferred to the Optionee on the date the Option is exercised with
respect to such Exercised Shares.
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A. METHOD OF PAYMENT.
Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
1. cash; or
2. bank draft or money order; or
3. cash received by a broker in advance of the receipt of
Shares by the broker in connection with a broker sale program; or
4. surrender of other Shares which (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, AND (ii) have a Fair Market Value
on the date of surrender equal to the aggregate Exercise Price of the Exercised
Shares.
B. NON-TRANSFERABILITY OF OPTION.
This Option may not be transferred in any manner otherwise
than by will or by the laws of descent or distribution and may be exercised
during the lifetime of Optionee only by the Optionee. The terms of the Plan and
this Option Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Optionee.
A. TERM OF OPTION.
This Option may be exercised only within the term set out in
the Notice of Grant, and may be exercised during such term only in accordance
with the Plan and the terms of this Option Agreement.
A. ENTIRE AGREEMENT; GOVERNING LAW.
The Plan is incorporated herein by reference. The Plan and
this Option Agreement constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee with respect to the
subject matter hereof, and may not be modified adversely to the Optionee's
interest except by means of a writing signed by the Company and Optionee. This
agreement is governed by the internal substantive laws, but not the choice of
law rules, of Washington.
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<PAGE>
A. NO GUARANTEE OF CONTINUED SERVICE.
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A
SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING
HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS
OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING
PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT
OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE
PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
By Optionee's signature and the signature of the Company's
representative below, Optionee and the Company agree that this Option is granted
under and governed by the terms and conditions of the Plan and this Option
Agreement. Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option Agreement and fully understands all provisions of the Plan
and Option Agreement. Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
OPTIONEE: GST TELECOMMUNICATIONS, INC.
Signature By
Print Name Title
Residence Address
- ------------------------------------
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CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the
terms and conditions of the Plan and this Option Agreement. In consideration of
the Company's granting his or her spouse the right to purchase Shares as set
forth in the Plan and this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the Plan and this Option
Agreement and further agrees that any community property interest shall be
similarly bound. The undersigned hereby appoints the undersigned's spouse as
attorney-in-fact for the undersigned with respect to any amendment or exercise
of rights under the Plan or this Option Agreement.
---------------------------------------
Spouse of Optionee
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EXHIBIT A
GST TELECOMMUNICATIONS, INC.
1999 STOCK PLAN
EXERCISE NOTICE
GST Telecommunications, Inc.
4001 Main Street
Vancouver, Washington 98663
Attention: [Title]
1. EXERCISE OF OPTION. Effective as of today, ________________, _____,
the undersigned ("Purchaser") hereby elects to purchase ______________ shares
(the "Shares") of the Common Stock of GST Telecommunications, Inc. (the
"Company") under and pursuant to the 1999 Stock Plan (the "Plan") and the Stock
Option Agreement dated, _____ (the "Option Agreement"). The purchase price for
the Shares shall be $ , as required by the Option Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company the
full purchase price for the Shares.
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that Purchaser
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. RIGHTS AS SHAREHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Shares so acquired shall
be issued to the Optionee as soon as practicable after exercise of the Option.
No adjustment will be made for a dividend or other right for which the record
date is prior to the date of issuance, except as provided in Section 13 of the
Plan.
5. TAX CONSULTATION. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
6. ENTIRE AGREEMENT; GOVERNING LAW. The Plan and Option Agreement are
incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
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<PAGE>
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing signed by the Company and Purchaser. This agreement is
governed by the internal substantive laws, but not the choice of law rules, of
Washington.
Submitted by: Accepted by:
PURCHASER: GST TELECOMMUNICATIONS, INC.
Signature By
Print Name Its
ADDRESS: ADDRESS:
GST Telecommunications, Inc.
4001 Main Street
Vancouver, Washington 98663
---------------------------------------
Date Received
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Exhibit 4.3
GST TELECOMMUNICATIONS, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
(AMENDED AND RESTATED AS OF APRIL 15, 1999)
1. PURPOSE. The purpose of the Plan is to provide employees of the Company and
its Designated Subsidiaries with an opportunity to purchase Common Shares of the
Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code.
2. DEFINITIONS.
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(c) "COMMON SHARES" shall mean the Common Shares of the Company.
(d) "COMPANY" shall mean GST Telecommunications, Inc., a Canadian
corporation, and any Designated Subsidiary of the Company.
(e) "COMPENSATION" shall mean all base straight time gross earnings and
commissions, exclusive of payments for overtime, shift premium,
incentive compensation, incentive payments, bonuses and other
compensation.
(f) "DESIGNATED SUBSIDIARY" shall mean any Subsidiary which has been
designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) "EMPLOYEE" shall mean any individual who is an Employee of the Company
for tax purposes whose customary employment with the Company is at
least twenty (20) hours per week and more than five (5) months in any
calendar year. For purposes of the Plan, the employment relationship
shall be treated as continuing intact while the individual is on sick
leave or other leave of absence approved by the Company. Where the
period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the
employment relationship shall be deemed to have terminated on the 91st
day of such leave.
(h) "ENROLLMENT DATE" shall mean the first day of each Offering Period.
<PAGE>
(i) "EXERCISE DATE" shall mean the last day of each Offering Period.
(j) "FAIR MARKET VALUE" shall mean, as of any date, the value of Common
Shares determined as follows:
(i) If the Common Shares are listed on any established stock exchange
or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The
Nasdaq Stock Market, its Fair Market Value shall be the greater
of: (i) the weighted average trading price for such shares for
the five Trading Days immediately before the date of such
determination and (ii) the trading price of such shares on the
last trading day immediately before the date of such
determination, and if the Common Shares are listed on more than
one exchange, the Fair Market Value shall be the greater of: (i)
the weighted average trading price for such shares for the five
Trading Days immediately before the date of such determination
and (ii) the trading price of such shares on the last trading day
immediately before the date of such determination as quoted on
the exchange which is the primary exchange for the trading of the
Common Shares, or;
(ii) If the Common Shares are regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean of the closing bid and asked
prices for the Common Shares on the date of such determination,
as reported in The Wall Street Journal or such other source as
the Board deems reliable, or;
(iii) In the absence of an established market for the Common Shares,
the Fair Market Value thereof shall be determined in good faith
by the Board.
(k) "OFFERING PERIOD" shall mean a period of approximately six (6) months
during which a right granted pursuant to the Plan may be exercised,
commencing on the first Trading Day on or after April 1 and
terminating on the last Trading Day in the period ending the following
September 30, or commencing on the first Trading Day on or after
October 1 and terminating on the last Trading Day in the period ending
the following March 31. The duration of Offering Periods may be
changed pursuant to Section 4 and 20 of this Plan.
(l) "PLAN" shall mean this 1996 Employee Stock Purchase Plan.
(m) "PURCHASE PRICE" shall mean an amount equal to 85% of the Fair Market
Value of a Common Share on the Enrollment Date or on the Exercise
Date, whichever is lower; provided, however, that the Purchase Price
may be adjusted by the Board pursuant to Section 20.
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(n) "RESERVES" shall mean the number of Common Shares covered by each
right under the Plan which have not yet been exercised and the number
of Common Shares which have been authorized for issuance under the
Plan but not yet placed under right.
(o) "SUBSIDIARY" shall mean a corporation, domestic or foreign, of which
not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
(p) "TRADING DAY" shall mean a day on which national stock exchanges and
the Nasdaq System are open for trading.
3. ELIGIBILITY.
(a) Any Employee who shall be employed by the Company on a given
Enrollment Date shall be eligible to participate in the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted a right under the Plan (i) to the extent
that, immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to Section
424(d) of the Code) would own capital stock of the Company and/or hold
outstanding rights to purchase such stock possessing five percent (5%)
or more of the total combined voting power or value of all classes of
the capital stock of the Company or of any Subsidiary, or (ii) to the
extent that his or her right to purchase stock under all employee
stock purchase plans of the Company and its subsidiaries accrues at a
rate which exceeds Twenty-Five Thousand Dollars ($25,000) worth of
stock (determined at the fair market value of the shares at the time
such right is granted) for each calendar year in which such right is
outstanding at any time.
4. OFFERING PERIODS. The Plan shall be implemented by consecutive Offering
Periods with a new Offering Period commencing on the first Trading Day on or
after April 1 and October 1 each year, or on such other date as the Board shall
determine, and continuing thereafter until terminated in accordance with Section
20 hereof. The Board shall have the power to change the duration of Offering
Periods (including the commencement dates thereof) with respect to future
offerings without stockholder approval if such change is announced at least five
(5) days prior to the scheduled beginning of the first Offering Period to be
affected thereafter.
5. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions in
the form of
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Exhibit A to this Plan and filing it with the Company's payroll office
prior to the applicable Enrollment Date.
(b) Payroll deductions for a participant shall commence on the first
payroll following the Enrollment Date and shall end on the last
payroll in the Offering Period to which such authorization is
applicable, unless sooner terminated by the participant as provided in
Section 10 hereof.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his or her subscription agreement, he
or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount not exceeding ten percent
(10%) of the Compensation which he or she receives on each pay day
during the Offering Period.
(b) All payroll deductions made for a participant shall be credited to his
or her account under the Plan and shall be withheld in whole
percentages only. A participant may not make any additional payments
into such account.
(c) A participant may discontinue his or her participation in the Plan as
provided in Section 10 hereof, or may increase or decrease the rate of
his or her payroll deductions during the Offering Period by completing
or filing with the Company a new subscription agreement authorizing a
change in payroll deduction rate. The Board may, in its discretion,
limit the number of parti cipation rate changes during any Offering
Period. The change in rate shall be effective with the first full
payroll period following five (5) business days after the Company's
receipt of the new subscription agreement unless the Company elects to
process a given change in participation more quickly. A participant's
subscription agreement shall remain in effect for successive Offering
Periods unless terminated as provided in Section 10 hereof.
(d) Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's
payroll deductions may be decreased to zero percent (0%) at any time
during an Offering Period. Payroll deductions shall recommence at the
rate provided in such participant's subscription agreement at the
beginning of the first Offering Period which is scheduled to end in
the following calendar year, unless terminated by the participant as
provided in Section 10 hereof.
(e) At the time the right is exercised, in whole or in part, or at the
time some or all of the Company's Common Shares issued under the Plan
is disposed of, the participant must make adequate provision for the
Company's federal, state, or other tax withholding obligations, if
any, which arise upon the exercise of the right or the disposition of
the Common Shares. At any time, the Company
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may, but shall not be obligated to, withhold from the participant's
compensation the amount necessary for the Company to meet applicable
withholding obligations, including any withholding required to make
available to the Company any tax deductions or benefits attributable
to sale or early disposition of Common Shares by the Employee.
7. GRANT OF RIGHT. On the Enrollment Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted a right
to purchase on the Exercise Date of such Offering Period (at the applicable
Purchase Price) up to a number of Common Shares determined by dividing such
Employee's payroll deductions accumulated prior to such Exercise Date and
retained in the Participant's account as of the Exercise Date by the applicable
Purchase Price; provided that in no event shall an Employee be permitted to
purchase during each Offering Period more than 20,000 Common Shares (subject to
any adjustment pursuant to Section 19), and provided further that such purchase
shall be subject to the limitations set forth in Sections 3(b) and 12 hereof.
Exercise of the right shall occur as provided in Section 8 hereof, unless the
participant has withdrawn pursuant to Section 10 hereof. The right shall expire
on the last day of the Offering Period.
8. EXERCISE OF RIGHT. Unless a participant withdraws from the Plan as provided
in Section 10 hereof, his or her right to purchase Common Shares shall be
exercised automatically on the Exercise Date, and the maximum number of full
shares subject to the right shall be purchased for such participant at the
applicable Purchase Price with the accumulated payroll deductions in his or her
account. No fractional shares shall be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase a
full share shall be retained in the participant's account for the subsequent
Offering Period, subject to earlier withdrawal by the participant as provided in
Section 10 hereof. Any other monies left over in a participant's account after
the Exercise Date shall be returned to the participant. During a participant's
lifetime, a participant's right to purchase shares hereunder is exercisable only
by him or her.
9. DELIVERY. As promptly as practicable after each Exercise Date on which a
purchase of Common Shares occurs, the Company shall arrange the delivery to each
participant, as appropriate, the Common Shares purchased upon exercise of his or
her right.
10. WITHDRAWAL.
(a) A participant may terminate his participation in the Plan by signing
and delivering to the Company a notice of withdrawal from the Plan at
any time, provided that such withdrawal shall not take effect until
the commencement of the next Offering Period. Notwithstanding the
exercise of any right of withdrawal by any of the participants
pursuant to this Plan, except for termination of employment, the
payroll deductions credited to that participant's account on or before
the day when the notice of withdrawal is delivered shall all be
applied to purchase Common Shares pursuant to this Plan and shall not
be returned to such participant.
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(b) A participant's withdrawal from an Offering Period shall not have any
effect upon his or her eligibility to participate in any similar plan
which may hereafter be adopted by the Company or in succeeding
Offering Periods which commence after the termination of the Offering
Period from which the participant withdraws.
11. TERMINATION OF EMPLOYMENT. Upon a participant's ceasing to be an Employee
for any reason, he or she shall be deemed to have elected to withdraw from the
Plan and the payroll deductions credited to such participant's account during
the Offering Period but not yet used to exercise the right shall be returned to
such participant or, in the case of his or her death, to the person or persons
entitled thereto under Section 15 hereof, and such participant's right shall be
automatically terminated. The preceding sentence notwithstanding, a participant
who receives payment in lieu of notice of termination of employment shall be
treated as continuing to be an Employee for the participant's customary number
of hours per week of employment during the period in which the participant is
subject to such payment in lieu of notice.
12. INTEREST. No interest shall accrue on the payroll deductions of a
participant in the Plan.
13. SHARES.
(a) Subject to adjustment upon changes in capitalization of the Company as
provided in Section 19 hereof, the maximum number of Common Shares
which shall be made available for sale under the Plan shall be
1,100,000 Common Shares. If, on a given Exercise Date, the number of
Common Shares with respect to which rights are to be exercised exceeds
the number of Common Shares then available under the Plan, the Company
shall make a pro rata allocation of the Common Shares remaining
available for purchase in as uniform a manner as shall be practicable
and as it shall determine to be equitable.
(b) The participant shall have no interest or voting right in shares
covered by his right until such right has been exercised.
(c) Common Shares to be delivered to a participant under the Plan shall be
registered in the name of the participant or in the name of the
participant and his or her spouse.
14. ADMINISTRATION. The Plan shall be administered by the Board or a committee
of members of the Board appointed by the Board. The Board or its committee shall
have full and exclusive discretionary authority to construe, interpret and apply
the terms of the Plan, to determine eligibility and to adjudicate all disputed
claims filed under the Plan. Every finding, decision and determination made by
the Board or its committee shall, to the full extent permitted by law, be final
and binding upon all parties.
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15. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who is
to receive any Common Shares and cash, if any, from the participant's
account under the Plan in the event of such participant's death
subsequent to an Exercise Date on which the right is exercised but
prior to delivery to such participant of such shares and cash. In
addition, a participant may file a written designation of a
beneficiary who is to receive any cash from the participant's account
under the Plan in the event of such participant's death prior to
exercise of the right. If a participant is married and the designated
beneficiary is not the spouse, spousal consent shall be required for
such designation to be effective.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant
and in the absence of a beneficiary validly designated under the Plan
who is living at the time of such participant's death, the Company
shall deliver such shares and/or cash to the executor or administrator
of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares and/or cash to
the spouse or to any one or more dependents or relatives of the
participant, or if no spouse, dependent or relative is known to the
Company, then to such other person as the Company may designate.
16. TRANSFERABILITY. Neither payroll deductions credited to a participant's
account nor any rights with regard to the exercise of a right or to receive
Common Shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and distribution
or as provided in Section 15 hereof) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds from
an Offering Period in accordance with Section 10 hereof.
17. USE OF FUNDS. All payroll deductions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such payroll deductions.
18. REPORTS. Individual accounts shall be maintained for each participant in
the Plan. Statements of account shall be given to participating Employees at
least annually, which statements shall set forth the amounts of payroll
deductions, the Purchase Price, the number of Common Shares purchased and the
remaining cash balance, if any.
19. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, LIQUIDATION,
MERGER OR ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
Shareholders
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of the Company, the Reserves, the maximum number of Common Shares each
participant may purchase per Offering Period (pursuant to Section 7),
as well as the price per share and the number of Common Shares covered
by each right under the Plan which has not yet been exercised shall be
proportionately adjusted for any increase or decrease in the number of
issued Common Shares resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of the Common
Shares, or any other increase or decrease in the number of Common
Shares effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt
of consideration". Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of
stock of any class, or securities convertible into stock of any class,
shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Common Shares subject to a right.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed dissolution
or liquidation of the Company, the Offering Period then in progress
shall be shortened by setting a new Exercise Date (the "New Exercise
Date"), and shall terminate immediately prior to the consummation of
such proposed dissolution or liquidation, unless provided otherwise by
the Board. The New Exercise Date shall be before the date of the
Company's proposed dissolution or liquidation. The Board shall notify
each participant in writing, at least ten (10) business days prior to
the New Exercise Date, that the Exercise Date for the participant's
right has been changed to the New Exercise Date and that the
participant's right shall be exercised automatically on the New
Exercise Date, unless prior to such date the participant has withdrawn
from the Offering Period as provided in Section 10 hereof.
(c) MERGER OR ASSET SALE. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each outstanding right shall
be assumed or an equivalent right substituted by the successor
corporation or a Parent or Subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or
substitute for the right, the Offering Period then in progress shall
be shortened by setting a new Exercise Date (the "New Exercise Date").
The New Exercise Date shall be before the date of the Company's
proposed sale or merger. The Board shall notify each participant in
writing, at least ten (10) business days prior to the New Exercise
Date, that the Exercise Date for the participant's right has been
changed to the New Exercise Date and that the participant's right
shall be exercised automatically on the New Exercise Date, unless
prior to such date the participant has withdrawn from the Offering
Period as provided in Section 10 hereof.
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<PAGE>
20. AMENDMENT OR TERMINATION.
(a) Subject to regulatory approval, the Board of Directors of the Company
may at any time and for any reason terminate or amend the Plan. Except
as provided in Section 19 hereof, no such termination can affect
rights previously granted, provided that an Offering Period may be
terminated by the Board of Directors on any Exercise Date if the Board
determines that the termination of the Offering Period or the Plan is
in the best interests of the Company and its stockholders. Except as
provided in Section 19 and Section 20 hereof, no amendment may make
any change in any right theretofore granted which adversely affects
the rights of any participant. To the extent necessary to comply with
Section 423 of the Code (or any other applicable law, regulation or
stock exchange rule), the Company shall obtain shareholder approval in
such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been "adversely
affected," but subject to regulatory approval, the Board (or its
committee) shall be entitled to change the Offering Periods, limit the
frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, permit payroll
withholding in excess of the amount designated by a participant in
order to adjust for delays or mistakes in the Company's processing of
properly completed withholding elections, establish reasonable waiting
and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Shares for
each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or
procedures as the Board (or its committee) determines in its sole
discretion advisable which are consistent with the Plan.
(c) In the event the Board determines that the ongoing operation of the
Plan may result in unfavorable financial accounting consequences,
subject to regulatory approval, the Board may, in its discretion and,
to the extent necessary or desirable, modify or amend the Plan to
reduce or eliminate such accounting consequence including, but not
limited to:
(i) altering the Purchase Price for any Offering Period including an
Offering Period underway at the time of the change in Purchase
Price;
(ii) shortening any Offering Period so that Offering Period ends on a
new Exercise Date, including an Offering Period underway at the
time of the Board action; and
(iii) allocating Common Shares as between participants in any Offering
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Period.
Such modifications or amendments shall not require stockholder
approval or the consent of any Plan participants.
21. NOTICES. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
22. CONDITIONS UPON ISSUANCE OF COMMON SHARES. Common Shares shall not be
issued with respect to a right unless the exercise of such right and the
issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the Common Shares may then be
listed, and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
The Company shall not be required to issue any Common Shares upon exercise
of a right unless the issuance thereof is exempt from the requirement for the
Company to prepare and file a prospectus or registration statement under
Applicable Law to qualify the distribution thereof and is exempt from the
requirement to effect any such trade through a securities dealer or for the
Company to seek registration therefor.
As a condition to the exercise of a right, the Company may require the
person exercising such right to represent and warrant at the time of any such
exercise that the Common Shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
23. TERM OF PLAN. The Plan shall become effective upon the earlier to occur of
its adoption by the Board of Directors or its approval by the stockholders of
the Company. It shall continue in effect for a term of ten (10) years unless
sooner terminated under Section 20 hereof.
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EXHIBIT A
GST TELECOMMUNICATIONS, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
Original Application Enrollment Date: __________
Change in Payroll Deduction Rate
Change of Beneficiary(ies)
1. _____________________________________ hereby elects to participate in the
GST Telecommunications, Inc. 1996 Employee Stock Purchase Plan (the
"Employee Stock Purchase Plan") and subscribes to purchase Common Shares of
the Company (the "Common Shares") in accordance with this Subscription
Agreement and the Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount of
____% of my Compensation on each payday (from 1 to 10%) during the Offering
Period in accordance with the Employee Stock Purchase Plan. (Please note
that no fractional percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of Common Shares at the applicable Purchase Price determined in
accordance with the Employee Stock Purchase Plan. I understand that if I do
not withdraw from an Offering Period, any accumulated payroll deductions
will be used to automatically exercise my right.
4. I have received a copy of the complete Employee Stock Purchase Plan. I
understand that my participation in the Employee Stock Purchase Plan is in
all respects subject to the terms of the Plan. I understand that my ability
to exercise the right under this Subscription Agreement is subject to
stockholder approval of the Employee Stock Purchase Plan.
5. Shares purchased for me under the Employee Stock Purchase Plan should be
issued in the name(s) of (Employee or Employee and Spouse only):.
6. I HEREBY AGREE TO NOTIFY THE COMPANY IN WRITING WITHIN 30 DAYS AFTER THE
DATE OF ANY DISPOSITION OF COMMON SHARES WITHIN 2 YEARS AFTER THE
ENROLLMENT DATE (THE FIRST DAY OF THE OFFERING PERIOD DURING WHICH I
PURCHASED SUCH SHARES) AND I WILL MAKE ADEQUATE PROVISION FOR FEDERAL,
STATE OR OTHER TAX WITHHOLDING OBLIGATIONS, IF ANY, WHICH ARISE UPON THE
DISPOSITION OF THE COMMON SHARES.
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Company may, but will not be obligated to, withhold from my compensation
the amount necessary to meet any applicable withholding obligation
including any withholding necessary to make available to the Company any
tax deductions or benefits attributable to sale or early disposition of
Common Shares by me.
7. I hereby agree to be bound by the terms of the Employee Stock Purchase
Plan. The effectiveness of this Subscription Agreement is dependent upon my
eligibility to participate in the Employee Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and Common Shares due to me under
the Employee Stock Purchase Plan:
NAME: (Please print)
(First) (Middle) (Last)
Relationship
(Address)
Employee's Social
Security Number:
Employee's Address:
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT THROUGHOUT
SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:
Signature of Employee
Spouse's Signature (If beneficiary other than spouse)
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EXHIBIT B
GST TELECOMMUNICATIONS, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the GST Telecommunications, Inc. 1996
Employee Stock Purchase Plan which began on ___________, ______ (the "Enrollment
Date") hereby notifies the Company that he or she hereby withdraws with effect
from the Offering Period commencing on _____________________________________.
The undersigned understands and agrees that his or her right for such Offering
Period will be automatically terminated. The undersigned understands further
that no further payroll deductions will be made for the purchase of Common
Shares in the Offering Period and the undersigned shall be eligible to
participate in succeeding Offering Periods only by delivering to the Company a
new Subscription Agreement.
Name and Address of Participant:
Signature:
Date:
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Exhibit 4.4
GST TELECOMMUNICATIONS, INC.
1999 SUPPLEMENTAL EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSES OF THE PLAN. The purposes of this Plan are:
- to assist in retaining the best available personnel for positions of
substantial responsibility,
- to provide additional incentive to Eligible Employees, and
- to promote the success of the Company's business.
- Rights granted under the Plan will be Nonstatutory Stock Options.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ACCOUNT" with respect to a Right Holder means the account
maintained by the Company to hold any contribution or payroll
deduction of that Right Holder under the ESPP;
(b) "ADMINISTRATOR" means the Board or any of its Committees as shall be
administering the Plan, in accordance with Section 4 of the Plan;
(c) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U.S. state corporate
laws, U.S. federal and state securities laws, the Code, Canadian
federal corporate law, any stock exchange or quotation system on
which the Common Shares are listed or quoted and the applicable laws
of any foreign country or jurisdiction where Rights are, or will be,
granted under the Plan;
(d) "BOARD" means the Board of Directors of the Company;
(e) "CODE" means the U.S. Internal Revenue Code of 1986, as amended;
(f) "COMMITTEE" means a committee of Directors appointed by the Board in
accordance with Section 4 of the Plan;
(g) "COMMON SHARES" means the Common Shares of the Company;
(h) "COMPANY" means GST Telecommunications, Inc., a Canadian
corporation;
(i) "DIRECTOR" means a member of the Board of Directors of the Company;
(j) "ELIGIBLE EMPLOYEE" means any person, including Officers who:
<PAGE>
(i) is employed by the Company or any Parent or Subsidiary of the
Company;
(ii) was a participant in the ESPP for the Relevant Offering
Period; and
(iii) after completion of the Relevant Offering Period, has funds
left in his account.
(k) "ESPP" means the 1996 Employee Stock Purchase Plan of the Company,
in effect as of March 31, 1999;
(l) "EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended;
(m) "EXERCISE PRICE" has the meaning as set out in Section 9 hereunder;
(n) "FAIR MARKET VALUE" shall mean, as of any date, the value of Common
Shares determined as follows:
(i) If the Common Shares are listed on any established stock
exchange or a national market system, including without
limitation the Nasdaq National Market or The Nasdaq SmallCap
Market of The Nasdaq Stock Market, its Fair Market Value shall
be the weighted average trading price for such shares for the
five Trading Days immediately before the date of such
determination and if the Common Shares are listed on more than
one exchange, the Fair Market Value shall be the weighted
average trading price for such shares for the five Trading
Days immediately before the date of such determination as
quoted on the exchange which is the primary exchange for the
trading of the Common Shares, or;
(ii) If the Common Shares are regularly quoted by a recognized
securities dealer but selling prices are not reported, its
Fair Market Value shall be the mean of the closing bid and
asked prices for the Common Shares on the date of such
determination, as reported in The Wall Street Journal or such
other source as the Board deems reliable, or;
(iii) In the absence of an established market for the Common Shares,
the Fair Market Value thereof shall be determined in good
faith by the Board.
(o) "NOTICE OF GRANT" means a written or electronic notice evidencing
certain terms and conditions of an individual Right grant. The
Notice of Grant is part of the Right and Exercise Agreement;
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(p) "OFFICERS" means a person who is an officer of the Company within
the meaning of Section 16 of the EXCHANGE ACT and the rules and
regulations promulgated thereunder;
(q) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code;
(r) "PLAN" means this 1999 Supplemental Employee Stock Plan;
(s) "RELEVANT BALANCE" has the meaning as set out in Section 6(a)
hereunder;
(t) "RELEVANT OFFERING PERIOD" means the offering period under the ESPP
which commenced on October 1, 1998 and ending on March 31, 1999;
(u) "RIGHT" means a nonstatutory stock option granted pursuant to the
Plan, that is not intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code and the regulations
promulgated thereunder;
(v) "RIGHT AND EXERCISE AGREEMENT" means an agreement between the
Company and a Right Holder evidencing the terms and conditions of an
individual Right grant and the immediate exercise thereof. The Right
and Exercise Agreement is subject to the terms and conditions of the
Plan;
(w) "RIGHT HOLDER" means the holder of an outstanding Right granted
under the Plan;
(x) "RIGHT STOCK" means the Common Shares subject to an Right;
(y) "SERVICE PROVIDERS" means an Employee, including an Officer or
Director;
(z) "SHARE" means a Common Share, as adjusted in accordance with Section
12 of the Plan;
(aa) "SHARE COMPENSATION ARRANGEMENT" means any stock option, stock
option plan, employee stock purchase plan or any other compensation
or incentive mechanism involving the issuance or potential issuance
of Common Shares to one or more Service Providers, including a share
purchased from treasury which is financially assisted by the Company
by way of loan, guarantee or otherwise;
(ab) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
(ac) "TRADING DAY" shall mean a day on which national stock exchanges and
the Nasdaq System are open for trading.
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3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 12
of the Plan, the maximum aggregate number of Shares which may be
reserved for issuance and sold under the Plan is 150,000 Shares.
4. ADMINISTRATION OF THE PLAN.
(a) ADMINISTRATION. The Plan shall be administered by (i) the
Board or (ii) a Committee, which committee shall be
constituted to satisfy Applicable Laws;
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Plan, and in the case of a Committee, subject to the specific
duties delegated by the Board to such Committee, the
Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common Shares;
(ii) to select the Eligible Employees to whom Rights may be
granted hereunder;
(iii) to determine whether and to what extent Rights are
granted hereunder;
(iv) to determine the number of Common Shares to be covered
by each Right granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted
hereunder;
(vii) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan;
(viii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant or
exercise of a Right previously granted by the
Administrator;
(ix) subject to the provisions of this Plan, to determine the
terms and restrictions applicable to Rights; and
(x) to make all other determinations deemed necessary or
advisable for administering the Plan.
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(c) EFFECT OF ADMINISTRATOR'S DECISION. The Administrator's
decisions, determinations and interpretations shall be final
and binding on all Right Holders and any other holders of
Rights.
5. ELIGIBILITY. Rights may be granted only to Eligible Employees.
6. LIMITATIONS.
(a) No Right may be granted to an Eligible Employee which would
entitle the Right Holder to purchase more than that number of
whole Shares determined by dividing the amount of funds held
in the Account for the benefit of the Right Holder on March
31, 1999 after deducting the funds for purchase of Common
Shares under the ESPP for the Relevant Offering Period (the
"Relevant Balance") by the applicable Exercise Price;
(b) Neither the Plan nor any Right shall confer upon a Right
Holder any right with respect to continuing the Right Holder's
relationship as an employee with the Company, nor shall they
interfere in any way with the Right Holder's right or the
Company's right to terminate such relationship at any time,
with or without cause;
(c) Notwithstanding any provision hereunder, the maximum aggregate
number of Shares subject to Rights granted under this Plan and
any other Share Compensation Arrangement held by any one
person shall not exceed that number of Shares equal to five
percent (5%) of the outstanding Shares of the Company;
(d) No right may be granted to an insider (as such term is defined
in the Company Manual of The Toronto Stock Exchange) if such
grant could result, at any time, in their being:
(i) reserved for issuance pursuant to Rights granted to
insiders such number of Shares of the Company as would
exceed ten percent (10%) of the outstanding Shares;
(ii) issued to insiders under this Plan or any other Share
Compensation Arrangement, within a one-year period, such
number of Shares as would exceed ten percent (10%) of
the outstanding Shares; or
(iii) issued under this Plan or any other Share Compensation
Arrangement to any one insider and such insider's
associates (as such term is defined in the Company
Manual of The Toronto Stock Exchange), within a one-year
period, such number of Shares as would exceed five
percent (5%) of the outstanding Shares;
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unless the Plan is approved by a majority of the votes
cast at a meeting of the Company's shareholders in
accordance with all applicable requirements of the Stock
Exchanges, including The Toronto Stock Exchange, other
than votes attaching to securities beneficially owned
by:
(iv) insiders to whom Shares may be issued pursuant to the
Plan; and
(v) associates of such insiders. For the purpose of such
shareholder approval, holders of non-voting and
subordinate voting Shares (as defined in Appendix E to
the Company Manual of The Toronto Stock Exchange) may be
entitled to vote with the holders of any class of shares
of the Company which otherwise carry greater voting
rights, on a basis proportionate to their respective
residual equity interested in the Company
(e) For the purpose of the limitations set forth in subsections
(d):
(i) any entitlement to acquire Shares granted pursuant to
this Plan or any other Share Compensation Arrangement
prior to the Right Holder becoming an insider is to be
excluded; and
(ii) the number of Shares outstanding is to be determined on
a non-diluted basis and on the basis of the number of
Shares outstanding at the time of the reservation or
issuance, as the case may be, excluding Shares issued
under this Plan or any other Share Compensation
Arrangement over the preceding one-year period.
7. TERM OF PLAN. The Plan shall become effective upon its adoption by the
Board. No Rights may be exercised under the Plan until the business day
after the later of the dates on which the Company obtains:
(i) approval of the Plan from the shareholders of the
Company; and
(ii) necessary approval from regulatory authorities,
including The Toronto Stock Exchange.
The Plan shall continue in effect until March 31, 2000, unless sooner
terminated under Section 14 of the Plan.
8. TERM OF RIGHT. The term of each Right shall be for 30 days from the date
of grant of such Right.
9. RIGHT EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the Shares
(the "Exercise Price") to be issued pursuant to exercise of a
Right shall be the lesser of (i)
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<PAGE>
US $4.83; and (ii) 85% of the Fair Market Value of the Common
Shares on March 31, 1999; and
(b) FORM OF CONSIDERATION. Upon a Right being exercised pursuant
to Article 10 hereof, the aggregate Exercise Price for the
Shares subject to the Right being exercised shall be paid to
the Company by applying the Relevant Balance in the Account of
the Right Holder whose Right is being exercised pursuant to
this Plan. For greater certainty, in the event of the Relevant
Balance is not sufficient to permit the exercise of the Right
in full, the Right may only be exercised to the extent of the
Relevant Balance in the Account of the Right Holder. The Right
Holder shall not be entitled to pay for the aggregate Exercise
Price for the Shares in any manner other than specified in
this Section 9(b).
10. EXERCISE OF RIGHT.
(a) PROCEDURE FOR EXERCISE. Any Right granted hereunder shall be
exercisable according to the terms of the Plan. A Right may
not be exercised for a fraction of a Share. A Right shall be
exercised by a Right Holder by executing and delivering to the
Company the Right and Exercise Agreement.
(b) RIGHTS AS A SHAREHOLDER. Shares issued upon the exercise of a
Right shall be issued in the name of the Right Holder or, if
requested by the Right Holder, in the name of the Right Holder
and his or her spouse. Until the Shares are issued (as
evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no
right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Right Stock,
notwithstanding the exercise of the Right. The Company shall
issue (or cause to be issued) such Shares promptly after the
Right is exercised. No adjustment will be made for a dividend
or other right for which the record date is prior to the date
the Shares are issued, except as provided in Section 12 of the
Plan.
Exercising a Right in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Right, by the number of Shares as to which the Right is exercised.
(c) TERMINATION OF EMPLOYMENT. If a Right Holder ceases to be an
Eligible Employee for any reason, including death, all Rights
held by the Right Holder shall immediately expire.
11. NON-TRANSFERABILITY OF RIGHTS. A Right may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET
SALE.
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<PAGE>
(a) CHANGES IN CAPITALIZATION. Subject to any required action by
the shareholders of the Company, the number of Common Shares
covered by each Right that has not yet been exercised and the
number of Common Shares that have been authorized for issuance
under the Plan but have not yet been placed under any Right
(collectively, the "Reserves"), as well as the price per
Common Share covered by each Right that has not yet been
exercised, shall be proportionately adjusted for any increase
or decrease in the number of issued Common Shares resulting
from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Shares, or any
other increase or decrease in the number of Common Shares
effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been
"effected without receipt of consideration". Such adjustment
shall be made by the Board, whose determination in that
respect shall be final, binding and conclusive. Except
expressly provided herein, no issue by the Company of shares
of any class, or securities convertible into shares of any
class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of
Common Shares subject to a Right.
(b) LIQUIDATION, DISSOLUTION, SALE OF ASSETS OR MERGER. In the
event of the proposed dissolution or liquidation of the
Company, all Rights shall terminate immediately prior to the
consummation of such proposed action, unless otherwise
provided by the Board. The Board may, in the exercise of its
sole discretion in such instances, declare that all Rights
shall terminate as of a date fixed by the Board and give each
Right Holder the right to exercise his Right as to all or any
part thereof, including shares as to which a Right would not
otherwise be exercisable. In the event of a proposed sale of
all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, a
Right shall be assumed or an equivalent Right shall be
substituted by such successor corporation or a parent or
subsidiary of such successor corporation. In the event that
such successor corporation refuses to assume the Rights or to
substitute an equivalent option, the Board shall, in lieu of
such assumption or substitution, provide the Right Holder to
have the right to exercise the Rights in full, including as to
Common Shares that would not otherwise then be purchasable. If
the Board makes a Right fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of
assets, the Board shall notify the Right Holder that the Right
shall be fully exercisable for a period of 30 days after the
date of such notice, and the Right shall terminate upon the
expiration of such period.
The Board may, if it so determines in the exercise of its sole discretion,
also make provisions for adjusting the Reserves, as well as the price per
Common Share covered by each outstanding Right, in the event that the
Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or
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<PAGE>
reductions of its outstanding Common Shares, and in the event of the
Company being consolidated with or merged into any other corporation.
13. DATE OF GRANT. The date of grant of a Right shall be, for all purposes,
the date on which the Administrator makes the determination granting such
Right, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Right Holder within
a reasonable time after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. Subject to regulatory approval, the
Board may at any time amend, alter, suspend or terminate the
Plan;
(b) SHAREHOLDER APPROVAL. The Company shall obtain shareholder
approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws; and
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment, alteration,
suspension or termination of the Plan shall impair the rights
of any Right Holder, unless mutually agreed otherwise between
the Right Holder and the Administrator, which agreement must
be in writing and signed by the Right Holder and the Company.
Termination of the Plan shall not affect the Administrator's
ability to exercise the powers granted to it hereunder with
respect to options granted under the Plan prior to the date of
such termination.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. No Shares shall be issued pursuant to the
exercise of a Right unless the exercise of such Right and the
issuance and delivery of such Shares shall comply with
Applicable Laws and shall be further subject to the approval
of counsel for the Company with respect to such compliance;
(b) PROSPECTUS AND REGISTRATION EXEMPTIONS. The Company shall not
be required to issue any Shares upon exercise of a Right
unless the issuance thereof is exempt from the requirement for
the Company to prepare and file a prospectus or registration
statement under Applicable Law to qualify the distribution
thereof and is exempt from the requirement to effect any such
trade through a securities dealer or for the Company to seek
registration therefore; and
(c) INVESTMENT REPRESENTATIONS. As a condition to the exercise of
a Right the Company may require the person exercising such
Right to represent and warrant at the time of any such
exercise that the Shares are being
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<PAGE>
purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion
of counsel for the Company, such a representation is required.
16. INABILITY TO OBTAIN AUTHORITY. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability
in respect of the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
17. RESERVATION OF SHARES. The Company, during the term of this Plan, shall at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
18. REGULATORY APPROVAL. The Company will seek approval of the Plan by all
applicable regulatory authorities (including the relevant stock
exchanges).
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<PAGE>
GST TELECOMMUNICATIONS, INC.
1999 SUPPLEMENTAL EMPLOYEE STOCK PLAN
RIGHT AND EXERCISE AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Right and Exercise Agreement.
I. NOTICE OF RIGHT GRANT
[RIGHT HOLDER'S NAME AND ADDRESS]
You have been granted a right to purchase Common Shares of the Company, subject
to the terms and conditions of the Plan and this Right and Exercise Agreement
(hereunder referred to as "this Agreement"), as follows:
Grant Number
-----------------------------
Date of Grant
-----------------------------
Vesting Commencement Date
-----------------------------
Exercise Price per Share $
-----------------------------
Total Number of Shares Granted
(hereunder referred to as the "Right
Shares")
-----------------------------
Total Exercise Price $
-----------------------------
Type of Right Nonstatutory Stock Option
Term/Expiration Date
-----------------------------
VESTING SCHEDULE:
Subject to the Right Holder continuing to be an Eligible Employee on such dates,
this Right shall vest and become exercisable immediately.
TERMINATION PERIOD:
This Right may be exercised for a period of 30 days from the date of grant. In
the event that such Right is not exercised by the 30th day after the date of
grant, it will expire. No Right may be exercised until the business day after
the later of the dates on which the
<PAGE>
Company obtains: (i) approval of the Plan from the shareholders of the Company;
and (ii) necessary approval from regulatory authorities, including the Toronto
Stock Exchange. By executing this Agreement the Right Holder will be exercising
the Right pursuant to the term hereunder.
II. AGREEMENT
1. GRANT OF RIGHT. The Plan Administrator of the Company hereby grants to the
Right Holder named in the Notice of Grant attached as Part I of this
Agreement (the "Right Holder") a right (the "Right") to purchase the
number of Shares, as set forth in the Notice of Grant, at the exercise
price per share set forth in the Notice of Grant (the "Exercise Price"),
subject to the terms and conditions of the Plan, which is incorporated
herein by reference. Subject to Section 14(c) of the Plan, in the event of
a conflict between the terms and conditions of the Plan and the terms and
conditions of this Right and Exercise Agreement, the terms and conditions
of the Plan shall prevail.
2. EXERCISE OF RIGHT.
(a) RIGHT TO EXERCISE. This Right is exercisable during its term in
accordance with the applicable provisions of the Plan and this Right
and Exercise Agreement;
(b) METHOD OF EXERCISE. This Right is exercisable by the Right Holder
executing and delivering this Agreement. By executing and delivery
of this Agreement, the Right Holder, subject to Section 2(c) below,
elects to purchase all the Right Shares (the "Exercised Shares")
pursuant to the Plan and this Agreement. The execution and delivery
of this Agreement shall amount to an irrevocable instruction to the
Company to withdraw, apply and use the Relevant Balance in the
Account of the Right Holder to satisfy in full the aggregate
Exercise Price as to all Exercised Shares. This Right shall be
deemed to be exercised upon receipt by the Company of such aggregate
Exercise Price.
(c) In the event that the Relevant Balance is not sufficient to satisfy
the aggregate Exercise Price for purchasing all the Right Shares,
then the Right Holder hereby agrees that the Right will be exercised
to purchase the whole number of Common Shares calculated by dividing
the Relevant Balance by the Exercise Price.
No Shares shall be issued pursuant to the exercise of this Right unless
such issuance and exercise complies with Applicable Laws. Assuming such
compliance, for income tax purposes the Exercised Shares shall be
considered transferred to the Right Holder on the date the Right is
exercised with respect to such Exercised Shares.
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<PAGE>
3. NON-TRANSFERABILITY OF RIGHT. This Right may not be transferred in any
manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Right Holder only by the Right
Holder. The terms of the Plan and this Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Right
Holder.
4. TERM OF RIGHT. This Right may be exercised only within the term set out in
the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Agreement.
5. TAX CONSEQUENCES. Some of the U.S. federal tax consequences relating to
this Right, as of the date of this Right, are set forth below. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. THE RIGHT HOLDER SHOULD CONSULT A TAX ADVISER BEFORE
EXERCISING THIS RIGHT OR DISPOSING OF THE SHARES.
(a) EXERCISING THE RIGHT. The Right Holder may incur regular
federal income tax liability upon exercise of an NSO. The
Right Holder will be treated as having received compensation
income (taxable at ordinary income tax rates) equal to the
excess, if any, of the Fair Market Value of the Exercised
Shares on the date of exercise over their aggregate Exercise
Price. If the Right Holder is an Employee or a former
Employee, the Company will be required to withhold from his or
her compensation or collect from Right Holder and pay to the
applicable taxing authorities an amount in cash equal to a
percentage of this compensation income at the time of
exercise, and may refuse to honor the exercise and refuse to
deliver Shares if such withholding amounts are not delivered
at the time of exercise;
(b) DISPOSITION OF SHARES. If the Right Holder holds NSO Shares
for at least one year, any gain realized on disposition of the
Shares will be treated as long-term capital gain for federal
income tax purposes.
6. ENTIRE AGREEMENT; GOVERNING LAW. The Plan is incorporated herein by
reference. The Plan and this Agreement constitute the entire agreement of
the parties with respect to the subject matter hereof and supersede in
their entirety all prior undertakings and agreements of the Company and
Right Holder with respect to the subject matter hereof, and may not be
modified adversely to the Right Holder's interest except by means of a
writing signed by the Company and Right Holder. This agreement is governed
by the internal substantive laws, but not the choice of law rules, of
Washington.
7. NO GUARANTEE OF CONTINUED SERVICE. RIGHT HOLDER ACKNOWLEDGES AND AGREES
THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND SET FORTH
HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF
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<PAGE>
CONTINUED ENGAGEMENT AS A SERVICE PROVIDER, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE WITH RIGHT HOLDER'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE RIGHT HOLDER'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME,
WITH OR WITHOUT CAUSE.
By your signature and the signature of the Company's representative below, the
Right Holder and the Company agree that this Right is granted and exercised
under and governed by the terms and conditions of the Plan and this Agreement.
Right Holder has reviewed the Plan and this Agreement in their entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of the Plan and Agreement. Right Holder
hereby agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions relating to the Plan and
Agreement. Right Holder further agrees to notify the Company upon any change in
the residence address indicated below.
RIGHT HOLDER GST TELECOMMUNICATIONS, INC.
- ------------------------------------ ----------------------------------
Signature By:
- ------------------------------------ ----------------------------------
Print Name Title
- ------------------------------------
Residence Address
- ------------------------------------
Date
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<PAGE>
EXHIBIT 5.1
April 15, 1999
GST Telecommunications, Inc.
4001 Main Street
Vancouver, WA 98663
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about April 15, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 2,000,000 shares of your Common Stock
reserved for issuance under the 1999 Stock Plan (the "1999 Plan"), 600,000
shares of your Common Stock reserved for issuance under the Amended and Restated
1996 Employee Stock Purchase Plan (the "Purchase Plan"), and 150,000 shares of
your Common Stock reserved for issuance under the 1999 Supplemental Employee
Stock Purchase Plan (the "Supplemental Plan"). As your legal counsel, we have
examined the proceedings taken and are familiar with the proceedings proposed to
be taken by you in connection with the sale and issuance of such Common Stock
under the 1999 Plan, Purchase Plan and Supplemental Plan.
It is our opinion that, when issued and sold in the manner referred to
in the 1999 Plan, Purchase Plan and Supplemental Plan and pursuant to the
agreements which accompany such plans, the Common Stock issued and sold thereby
will be legally and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to Item E under the general
instructions to Form S-8 under the Securities Act of 1933 with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors of GST Telecommunications, Inc.:
We consent to the incorporation by reference in the Registration
Statement of GST Telecommunications, Inc. on Form S-8 of the reports dated March
1, 1999 appearing in the Annual Report on Form 10-K of GST Telecommunications,
Inc. for the fiscal year ended December 31, 1998.
/s/ KPMG PEAT MARWICK LLP
Portland, Oregon
April 15, 1999
<PAGE>
Exhibit 24.1
(Extra signature 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 on 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 Vancouver, State of Washington, on April 15, 1999.
GST TELECOMMUNICATIONS, INC.
By: /s/ Joseph A. Basile, Jr.
----------------------------------
Joseph A. Basile, Jr.
President, Chief Executive Officer
and Director
