As filed with the Securities and Exchange Commission on February 7, 1997
Registration No. 333-_____
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GLOBAL TELECOMMUNICATION SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3585278
(State or Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
5697 RISING SUN AVENUE
PHILADELPHIA, PENNSYLVANIA 19120
(Address of principal executive offices)
1994 PERFORMANCE EQUITY PLAN
AND
OTHER EMPLOYEE BENEFIT PLANS
(Full title of the Plans)
SHELLY FINKEL, Chairman of the Board
Global Telecommunication Solutions, Inc.
5697 Rising Sun Avenue
Philadelphia, Pennsylvania 19120
(215) 342-7700
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
DAVID ALAN MILLER, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
(212) 818-8800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
========================================== ===================== ======================= =================== ===============
<S> <C> <C> <C> <C>
Common Stock issuable upon exercise of 137,000 shares $2.625
options granted and outstanding under the 150,000 shares $3.00
Registrant's 1994 Performance Equity 200,000 shares $4.75
Plan ("1994 Plan")(1) 83,000 shares $5.00
70,000 shares $5.25
10,000 shares $5.75
40,000 shares $5.875
17,500 shares $6.00 $ 2,939,625.00 $ 890.80
Common Stock issuable upon exercise of
options which may be granted under the
1994 Plan(2) 792,500 shares $4.25 $ 3,368,125.00 $ 1,020.64
Common Stock issuable upon exercise of 37,906 shares $0.66
options and other stock-based awards 72,021 shares $2.64
granted and outstanding under other 45,000 shares $3.33
employee benefit plans ("Benefit Plans")(3) 100,000 shares $5.00
7,500 shares $5.50
175,000 shares $6.125 $ 1,978,128.40 $ 599.43
============== ============
TOTAL $ 8,285,878.40 $ 2,510.87
(Footnotes begin on next page)
</TABLE>
<PAGE>
(Footnotes to chart on previous page)
(1) Represents the exercise prices payable for the 707,500 shares issuable
upon exercise of outstanding options granted under the 1994 Plan in
accordance with Rule 457(h) promulgated under the Securities Act of
1933, as amended ("Securities Act").
(2) Based on the last sale price of the Common Stock as reported by The
Nasdaq Stock Market on February 4, 1997 in accordance with Rules 457(c)
and 457(h) promulgated under the Securities Act.
(3) Represents the exercise prices payable for the 437,427 shares issuable
upon exercise of outstanding options granted pursuant to the Benefit
Plans in accordance with Rule 457(h) promulgated under the Securities
Act.
---------------------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act, the Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
---------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Plan Annual Information *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act, and the Note to Part I of the Instructions to Form
S-8.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(a) Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1995 and amendment thereto on Form 10-KSB/A,
filed with the Commission pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act");
(b) Current Report on Form 8-K, dated March 1, 1996, and
amendments thereto on Form 8- K/A, filed with the Commission
pursuant to Section 13(a) of the Exchange Act;
(c) Quarterly Report on Form 10-QSB for the quarter ended March
31, 1996, and amendment thereto on Form 10-QSB/A, filed with
the Commission pursuant to Section 13(a) of the Exchange Act;
(d) Quarterly Report on Form 10-QSB for the quarter ended June 30,
1996, and amendment thereto on Form 10-QSB/A, filed with the
Commission pursuant to Section 13(a) of the Exchange Act;
(e) Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1996, and amendment thereto on Form 10-QSB/A,
filed with the Commission pursuant to Section 13(a) of the
Exchange Act;
(f) Proxy Statement, dated July 11, 1996, relating to the Annual
Meeting of Stockholders, filed with the Commission pursuant to
Section 14 of the Exchange Act;
(g) Current Report on Form 8-K, dated December 20, 1996, filed
with the Commission pursuant to Section 13(a) of the Exchange
Act;
(h) All other reports filed by the Registrant since December 31,
1995 with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act; and
(i) The description of the Common Stock contained in the
Registrant's 8-A Registration Statement filed with the
Commission pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment(s) or report(s) filed for
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the respective date of filing of such documents. Any statement
contained in a document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
The Common Stock of the Registrant is registered under Section 12 of
the Exchange Act.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that such person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
In the case of an action by or in the right of the corporation, Section
145 empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action in
any of the capacities set forth above against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in and not opposed to the
best interests of the corporation, except that indemnification is not permitted
in respect of any claim, issue, or matter as to which such person is adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought determines upon
application that, despite the adjudicate of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
deems proper. Section 145 further provides: that a Delaware corporation is
required to indemnify a director, officer, employee, or agent against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with any action, suit, or proceeding or in defense of any claim,
issue, or matter therein as to which such person has been successful on the
merits or otherwise; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; that indemnification provided for by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee, or agent and shall inure to the
benefit of such person's heirs, executors, and administrators; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer against any such liability asserted against such person in any such
capacity or arising out of such person's status as such whether or not the
corporation would have the power to indemnify him against liability under
Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct. Such determination is to be made (i)
by the board of directors by a majority vote of a quorum consisting of directors
who were not party to such action, suit, or proceeding, or (ii) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
The Registrant's By-Laws and Article Sixth of its Amended and Restated
Certificate of Incorporation provides for indemnification of directors and
officers of the Company to the fullest extent permitted by law, as now in effect
or later amended. The Registrant currently provides liability insurance
II-2
<PAGE>
for each director and certain officers for certain losses arising from claims or
charges made against them while acting in their capacities as directors or
officers of the Registrant.
Article Seventh of the Registrant's Amended and Restated Certificate of
Incorporation eliminates the personal liability of the directors of the
Registrant to the fullest extent permitted by the provisions of Section 102 of
the Delaware General Corporation Law, as the same may be amended and
supplemented.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 1994 Performance Equity Plan of the Registrant
4.2 Stock Option Agreement for the purchase of 30,000
shares between the Registrant and Shelly Finkel
4.3 Stock Option Agreement for the purchase of 15,000
shares between the Registrant and James Koplik
4.4 Stock Option Agreement for the purchase of 100,000
shares between the Registrant and John McCabe
4.5 Stock Option Agreement for the purchase of 5,000
shares between the Registrant and Eleanor Feffer
4.6 Stock Option Agreement for the purchase of 2,500
shares between the Registrant and John Silverman
4.7 Stock Option Agreement for the purchase of 50,000
shares between the Registrant and David Tobin
4.8 Stock Option Agreement for the purchase of 125,000
shares between the Registrant and Gary Wasserson
4.9 Stock Option Agreement for the purchase of 37,906
shares between the Registrant and Joel Hornstein
4.10 Stock Option Agreement for the purchase of 37,906
shares between the Registrant and David Tobin
4.11 Stock Option Agreement for the purchase of 18,953
shares between the Registrant and Mary Berger
4.12 Stock Option Agreement for the purchase of 15,162
shares between the Registrant and Edward Ragar
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of KPMG Peat Marwick LLP
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<PAGE>
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Graubard Mollen & Miller (included in
Exhibit 5.1)
Item 9. Undertakings.
(a) 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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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) 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
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<PAGE>
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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on this 6th day of
February, 1997.
GLOBAL TELECOMMUNICATION SOLUTIONS, INC.
By: /s/ Shelly Finkel
Shelly Finkel, Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Shelly Finkel and Gary Wasserson his true
and lawful attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that said attorneys-in-fact and agents, each acting alone, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
/s/ Shelly Finkel Chairman of the Board of Directors February 6, 1997
- -------------------
Shelly Finkel
/s/ Gary J. Wasserson Chief Executive Officer and Director February 6, 1997
- --------------------
Gary J. Wasserson
/s/ John McCabe President and Director February 6, 1997
- --------------------
John McCabe
/s/ Alan W. Kaufman Director February 6, 1997
- --------------------
Alan W. Kaufman
/s/ Jack N. Tobin Director February 6, 1997
- --------------------
Jack N. Tobin
/s/ Donald L. Ptalis Director February 6, 1997
- --------------------
Donald L. Ptalis
/s/ Maria Bruzzese Chief Financial Officer and Treasurer February 6, 1997
- -------------------- (and principal accounting officer)
Maria Bruzzese
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 1994 Performance Equity Plan of the Registrant
4.2 Stock Option Agreement for the purchase of 30,000 shares
between the Registrant and Shelly Finkel
4.3 Stock Option Agreement for the purchase of 15,000 shares between
the Registrant and James Koplik
4.4 Stock Option Agreement for the purchase of 100,000 shares
between the Registrant and John McCabe
4.5 Stock Option Agreement for the purchase of 5,000 shares between
the Registrant and Eleanor Feffer
4.6 Stock Option Agreement for the purchase of 2,500 shares between
the Registrant and John Silverman
4.7 Stock Option Agreement for the purchase of 50,000 shares between
the Registrant and David Tobin
4.8 Stock Option Agreement for the purchase of 125,000 shares
between the Registrant and Gary Wasserson
4.9 Stock Option Agreement for the purchase of 37,906 shares between
the Registrant and Joel Hornstein
4.10 Stock Option Agreement for the purchase of 37,906 shares between
the Registrant and David Tobin
4.11 Stock Option Agreement for the purchase of 18,953 shares between
the Registrant and Mary Berger
4.12 Stock Option Agreement for the purchase of 15,162 shares between
the Registrant and Edward Ragar
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
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<PAGE>
EXHIBIT 4.1
GLOBAL TELECOMMUNICATION SOLUTIONS, INC.
1994 Performance Equity Plan
Section 1. Purpose; Definitions.
1.1 Purpose. The purpose of the Global Telecommunication Solutions,
Inc. (the "Company") 1994 Performance Equity Plan (the "Plan") is to enable the
Company to offer to its key employees, officers, directors, consultants and
sales representatives whose past, present and/or potential contributions to the
Company and its Subsidiaries have been, are or will be important to the success
of the Company, an opportunity to acquire a proprietary interest in the Company.
The various types of long-term incentive awards which may be provided under the
Plan will enable the Company to respond to changes in compensation practices,
tax laws, accounting regulations and the size and diversity of its businesses.
1.2 Definitions. For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Agreement" means the agreement between the Company and the Holder
setting forth the terms and conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto and the regulations promulgated thereunder.
(d) "Committee" means the Stock Option Committee of the Board or any other
committee of the Board, which the Board may designate to administer the Plan or
any portion thereof. If no Committee is so designated, then all references in
this Plan to "Committee" shall mean the Board.
(e) "Common Stock" means the Common Stock of the Company, par value $.01
per share.
(f) "Company" means Global Telecommunication Solutions, Inc., a corporation
organized under the laws of the State of Delaware.
(g) "Deferred Stock" means Stock to be received, under an award made
pursuant to Section 9, below, at the end of a specified deferral period.
(h) "Disability" means disability as determined under procedures
established by the Committee for purposes of the Plan.
(i) "Effective Date" means the date set forth in Section 13.1, below.
(j) "Fair Market Value", unless otherwise required by any applicable
provision of the Code or any regulations issued thereunder, means, as of any
given date: (i) if the Common Stock is listed on a national securities exchange
or quoted on the Nasdaq National Market or Nasdaq SmallCap Market,
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<PAGE>
the last sale price of the Common Stock in the principal trading market for the
Common Stock on the last trading day preceding the date of grant of an award
hereunder, as reported by the exchange or Nasdaq, as the case may be; (ii) if
the Common Stock is not listed on a national securities exchange or quoted on
the Nasdaq National Market or Nasdaq SmallCap Market, but is traded in the
over-the-counter market, the closing bid price for the Common Stock on the last
trading day preceding the date of grant of an award hereunder for which such
quotations are reported by the OTC Bulletin Board or the National Quotation
Bureau, Incorporated or similar publisher of such quotations; and (iii) if the
fair market value of the Common Stock cannot be determined pursuant to clause
(i) or (ii) above, such price as the Committee shall determine, in good faith.
(k) "Holder" means a person who has received an award under the Plan.
(l) "Incentive Stock Option" means any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
(m) "Nonqualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
(n) "Normal Retirement" means retirement from active employment with the
Company or any Subsidiary on or after age 65.
(o) "Other Stock-Based Award" means an award under Section 10, below, that
is valued in whole or in part by reference to, or is otherwise based upon,
Stock.
(p) "Parent" means any present or future parent corporation of the Company,
as such term is defined in Section 424(e) of the Code.
(q) "Plan" means the Global Telecommunication Solutions, Inc. 1994
Performance Equity Plan, as hereinafter amended from time to time.
(r) "Restricted Stock" means Stock, received under an award made pursuant
to Section 8, below, that is subject to restrictions under said Section 8.
(s) "SAR Value" means the excess of the Fair Market Value (on the exercise
date) of the number of shares for which the Stock Appreciation Right is
exercised over the exercise price that the participant would have otherwise had
to pay to exercise the related Stock Option and purchase the relevant shares.
(t) "Stock" means the Common Stock of the Company, par value $.01 per
share.
(u) "Stock Appreciation Right" means the right to receive from the Company,
on surrender of all or part of the related Stock Option, without a cash payment
to the Company, a number of shares of Common Stock equal to the SAR Value
divided by the exercise price of the Stock Option.
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(v) "Stock Option" or "Option" means any option to purchase shares of Stock
which is granted pursuant to the Plan.
(w) "Stock Reload Option" means any option granted under Section 6.3,
below, as a result of the payment of the exercise price of a Stock Option and/or
the withholding tax related thereto in the form of Stock owned by the Holder or
the withholding of Stock by the Company.
(x) "Subsidiary" means any present or future subsidiary corporation of the
Company, as such term is defined in Section 424(f) of the Code.
Section 2. Administration.
2.1 Committee Membership. The Plan shall be administered by the Board or a
Committee. Committee members shall serve for such term as the Board may in each
case determine, and shall be subject to removal at any time by the Board.
2.2 Powers of Committee. The Committee shall have full authority, subject
to Section 4.2, below, to award, pursuant to the terms of the Plan: (i) Stock
Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv) Deferred
Stock, (v) Stock Reload Options and/or (vi) Other Stock-Based Awards. For
purposes of illustration and not of limitation, the Committee shall have the
authority (subject to the express provisions of this Plan):
(a) to select the officers, key employees, directors,
consultants and sales representatives of the Company or any Subsidiary to whom
Stock Options, Stock Appreciation Rights, Restricted Stock, Deferred Stock,
Reload Stock Options and/or Other Stock-Based Awards may from time to time be
awarded hereunder.
(b) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder (including, but not
limited to, number of shares, share price, any restrictions or limitations, and
any vesting, exchange, surrender, cancellation, acceleration, termination,
exercise or forfeiture provisions, as the Committee shall determine);
(c) to determine any specified performance goals or such
other factors or criteria which need to be attained for the vesting of an award
granted hereunder;
(d) to determine the terms and conditions under which awards
granted hereunder are to operate on a tandem basis and/or in conjunction with or
apart from other equity awarded under this Plan and cash awards made by the
Company or any Subsidiary outside of this Plan;
(e) to permit a Holder to elect to defer a payment under the
Plan under such rules and procedures as the Committee may establish, including
the crediting of interest on deferred amounts denominated in cash and of
dividend equivalents on deferred amounts denominated in Stock;
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<PAGE>
(f) to determine the extent and circumstances under which
Stock and other amounts payable with respect to an award hereunder shall be
deferred which may be either automatic or at the election of the Holder; and
(g) to substitute (i) new Stock Options for previously granted
Stock Options, which previously granted Stock Options have higher option
exercise prices and/or contain other less favorable terms, and (ii) new awards
of any other type for previously granted awards of the same type, which
previously granted awards are upon less favorable terms.
2.3 Interpretation of Plan.
(a) Committee Authority. Subject to Sections 4.2 (iv) and 12,
below, the Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any award issued under the Plan (and to determine the form and
substance of all Agreements relating thereto), and to otherwise supervise the
administration of the Plan. Subject to Section 12, below, all decisions made by
the Committee pursuant to the provisions of the Plan shall be made in the
Committee's sole discretion and shall be final and binding upon all persons,
including the Company, its Subsidiaries and Holders.
(b) Incentive Stock Options. Anything in the Plan to the
contrary notwithstanding, no term or provision of the Plan relating to Incentive
Stock Options (including but limited to Stock Reload Options or Stock
Appreciation rights granted in conjunction with an Incentive Stock Option) or
any Agreement providing for Incentive Stock Options shall be interpreted,
amended or altered, nor shall any discretion or authority granted under the Plan
be so exercised, so as to disqualify the Plan under Section 422 of the Code, or,
without the consent of the Holder(s) affected, to disqualify any Incentive Stock
Option under such Section 422.
Section 3. Stock Subject to Plan.
3.1 Number of Shares. The total number of shares of Common Stock
reserved and available for distribution under the Plan shall be 1,500,000
shares. Shares of Stock under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares. If any shares of Stock that
have been granted pursuant to a Stock Option cease to be subject to a Stock
Option, or if any shares of Stock that are subject to any Stock Appreciation
Right, Restricted Stock, Deferred Stock award, Reload Stock Option or Other
Stock-Based Award granted hereunder are forfeited or any such award otherwise
terminates without a payment being made to the Holder in the form of Stock, such
shares shall again be available for distribution in connection with future
grants and awards under the Plan. Only net shares issued upon a stock-for-stock
exercise (including stock used for withholding taxes) shall be counted against
the number of shares available under the Plan.
3.2 Adjustment Upon Changes in Capitalization, Etc. In the event of any
merger, reorganization, consolidation, recapitalization, dividend (other than a
cash dividend), stock split, reverse stock split, or other change in corporate
structure affecting the Stock, such substitution or adjustment shall
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be made in the aggregate number of shares reserved for issuance under the Plan,
in the number and exercise price of shares subject to outstanding Options, in
the number of shares and Stock Appreciation Right price relating to Stock
Appreciation Rights, and in the number of shares subject to, and in the related
terms of, other outstanding awards (including but not limited to awards of
Restricted Stock, Deferred Stock, Reload Stock Options and Other Stock-Based
Awards) granted under the Plan as may be determined to be appropriate by the
Committee in order to prevent dilution or enlargement of rights, provided that
the number of shares subject to any award shall always be a whole number.
Section 4. Eligibility.
4.1 General. Awards may be made or granted to key employees, officers,
directors, consultants and sales representatives who are deemed to have rendered
or to be able to render significant services to the Company or its Subsidiaries
and who are deemed to have contributed or to have the potential to contribute to
the success of the Company. No Incentive Stock Option shall be granted to any
person who is not an employee of the Company or a Subsidiary at the time of
grant.
4.2 Directors' Awards. Notwithstanding anything contained herein
to the contrary:
(i) The only awards to be granted to a director of the Company hereunder
(even if such person also acts in other capacities for the Company in addition
to being a director) shall be Stock Options with the terms set forth below and
in Section 6, below. If there is an inconsistency between the provisions of
Sections 4 and 6, the provisions of Section 4 shall control;
(ii) On March 31 of each year (or the next business day thereafter if March
31 is a Saturday, Sunday or legal holiday) during the term of the Plan, assuming
there are enough shares then available for grant hereunder, each person who is
then a director of the Company shall be awarded a Stock Option to purchase
10,000 shares of the Company's Common Stock (to be adjusted in accordance with
Section 3.2, above) at the Fair Market Value thereof, all of which options shall
be immediately exercisable as of the date of grant and have a term of ten years;
provided, however, that if the Fair Market Value cannot be determined in
accordance with clauses (i) or (ii) of the definition of Fair Market Value in
Section 1.2(j) hereof, the exercise price of the options shall be the same as
the exercise price of the options awarded to the directors in March of the
preceding calendar year;
(iii) Any person who shall become a director of the Company within the six
month period following any March 31 shall be awarded, on the date he so becomes
a director, a stock option to purchase 10,000 shares of Common Stock at the Fair
Market Value thereof on the date of grant, which option shall be immediately
exercisable as of the date of the award and have a term of ten years; provided,
however, that if the Fair Market Value cannot be determined in accordance with
clauses (i) or (ii) of the definition of Fair Market Value in Section 1.2(j)
hereof, the exercise price of the option shall be the same as the exercise price
of the options awarded to the directors on the immediately preceding March 31;
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(iv) This Section 4.2 shall not be amended more than once every six
months, other than to comport with any changes in the Code or the Employment
Retirement Income Security Act, or the rules and regulations promulgated under
either of those statutes.
Section 5. Required Six-Month Holding Period.
Any equity security issued under this Plan must be held for at least
six months from the date of the grant of the related award.
Section 6. Stock Options.
6.1 Grant and Exercise. Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options and (ii) Nonqualified Stock Options. Any
Stock Option granted under the Plan shall contain such terms, not inconsistent
with this Plan, or with respect to Incentive Stock Options, not inconsistent
with the Code, as the Committee may from time to time approve. The Committee
shall have the authority to grant Incentive Stock Options, Non-Qualified Stock
Options, or both types of Stock Options and which may be granted alone or in
addition to other awards granted under the Plan. To the extent that any Stock
Option intended to qualify as an Incentive Stock Option does not so qualify, it
shall constitute a separate Nonqualified Stock Option. An Incentive Stock Option
may be granted only within the ten-year period commencing from the Effective
Date and may only be exercised within ten years of the date of grant (or five
years in the case of an Incentive Stock Option granted to an optionee ("10%
Stockholder") who, at the time of grant, owns Stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company.
6.2 Terms and Conditions. Stock Options granted under the Plan
hall be subject to the following terms and conditions:
I. Exercise Price. The exercise price per share of Stock purchasable under
a Stock Option shall be determined by the Committee at the time of grant and may
not be less than 100% of the Fair Market Value of the Stock as defined above;
provided, however, that the exercise price of an Incentive Stock Option granted
to a 10% Stockholder shall not be less than 110% of the Fair Market Value of the
Stock.
(a) Option Term. Subject to the limitations in Section 6.1, above, the term
of each Stock Option shall be fixed by the Committee.
(b) Exercisability. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee and as set forth in Section 11, below. If the Committee provides, in
its discretion, that any Stock Option is exercisable only in installments, i.e.,
that it vests over time, the Committee may waive such installment exercise
provisions at any time at or after the time of grant in whole or in part, based
upon such factors as the Committee shall determine.
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(c) Method of Exercise. Subject to whatever installment, exercise and
waiting period provisions are applicable in a particular case, Stock Options may
be exercised in whole or in part at any time during the term of the Option, by
giving written notice of exercise to the Company specifying the number of shares
of Stock to be purchased. Such notice shall be accompanied by payment in full of
the purchase price, which shall be in cash or, unless otherwise provided in the
Agreement, in shares of Stock (including Restricted Stock and other contingent
awards under this Plan) or, partly in cash and partly in such Stock, or such
other means which the Committee determines are consistent with the Plan's
purpose and applicable law. Cash payments shall be made by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; provided, however, that the Company shall not be required to
deliver certificates for shares of Stock with respect to which an Option is
exercised until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof. Payments in the form of Stock
shall be valued at the Fair Market Value of a share of Stock on the date prior
to the date of exercise. Such payments shall be made by delivery of stock
certificates in negotiable form which are effective to transfer good and valid
title thereto to the Company, free of any liens or encumbrances. Subject to the
terms of the Agreement, the Committee may, in its sole discretion, at the
request of the Holder, deliver upon the exercise of a Nonqualified Stock Option
a combination of shares of Deferred Stock and Common Stock; provided that,
notwithstanding the provisions of Section 9 of the Plan, such Deferred Stock
shall be fully vested and not subject to forfeiture. A Holder shall have none of
the rights of a stockholder with respect to the shares subject to the Option
until such shares shall be transferred to the Holder upon the exercise of the
Option.
(d) Transferability. No Stock Option shall be transferable by the Holder
other than by will or by the laws of descent and distribution, and all Stock
Options shall be exercisable, during the Holder's lifetime, only by the Holder.
(e) Termination by Reason of Death. If a Holder's employment by the Company
or a Subsidiary terminates by reason of death, any Stock Option held by such
Holder, unless otherwise determined by the Committee at the time of grant and
set forth in the Agreement, shall be fully vested and may thereafter be
exercised by the legal representative of the estate or by the legatee of the
Holder under the will of the Holder, for a period of one year (or such other
greater or lesser period as the Committee may specify at grant) from the date of
such death or until the expiration of the stated term of such Stock Option,
whichever period is the shorter.
(f) Termination by Reason of Disability. If a Holder's employment by the
Company or any Subsidiary terminates by reason of Disability, any Stock Option
held by such Holder, unless otherwise determined by the Committee at the time of
grant and set forth in the Agreement, shall be fully vested and may thereafter
be exercised by the Holder for a period of one year (or such other greater or
lesser period as the Committee may specify at the time of grant) from the date
of such termination of employment or until the expiration of the stated term of
such Stock Option, whichever period is the shorter.
(g) Other Termination. Subject to the provisions of Section 14.3, below,
and unless otherwise determined by the Committee at the time of grant and set
forth in the Agreement, if a Holder is an employee of the Company or a
Subsidiary at the time of grant and if such Holder's employment by the Company
or any Subsidiary terminates for any reason other than death or Disability, the
Stock Option
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shall thereupon automatically terminate, except that if the Holder's employment
is terminated by the Company or a Subsidiary without cause or due to Normal
Retirement, then the portion of such Stock Option which has vested on the date
of termination of employment may be exercised for the lesser of three months
after termination of employment or the balance of such Stock Option's term.
(h) Additional Incentive Stock Option Limitation. In the case of an
Incentive Stock Option, the aggregate Fair Market Value of Stock (determined at
the time of grant of the Option) with respect to which Incentive Stock Options
become exercisable by a Holder during any calendar year (under all such plans of
the Company and its Parent and Subsidiary) shall not exceed $100,000.
(i) Buyout and Settlement Provisions. The Committee may at any time, in its
sole discretion, offer to buy out a Stock Option previously granted, based upon
such terms and conditions as the Committee shall establish and communicate to
the Holder at the time that such offer is made.
(j) Stock Option Agreement. Each grant of a Stock Option shall be confirmed
by, and shall be subject to the terms of, the Agreement executed by the Company
and the Holder.
6.3 Stock Reload Option. The Committee may also grant to the Holder
(concurrently with the grant of an Incentive Stock Option and at or after the
time of grant in the case of a Nonqualified Stock Option) a Stock Reload Option
up to the amount of shares of Stock held by the Holder for at least six months
and used to pay all or part of the exercise price of an Option and, if any,
withheld by the Company as payment for withholding taxes. Such Stock Reload
Option shall have an exercise price equal to the Fair Market Value as of the
date of the Stock Reload Option grant. Unless the Committee determines
otherwise, a Stock Reload Option may be exercised commencing one year after it
is granted and shall expire on the date of expiration of the Option to which the
Reload Option is related.
Section 7. Stock Appreciation Rights.
7.1 Grant and Exercise. The Committee may grant Stock Appreciation Rights
to participants who have been, or are being granted, Options under the Plan as a
means of allowing such participants to exercise their Options without the need
to pay the exercise price in cash. In the case of a Nonqualified Stock Option, a
Stock Appreciation Right may be granted either at or after the time of the grant
of such Nonqualified Stock Option. In the case of an Incentive Stock Option, a
Stock Appreciation Right may be granted only at the time of the grant of such
Incentive Stock Option.
7.2 Terms and Conditions. Stock Appreciation Rights shall be subject to the
following terms and conditions:
(a) Exercisability. Stock Appreciation Rights shall be exercisable as
determined by the Committee and set forth in the Agreement, subject to the
limitations, if any, imposed by the Code, with respect to related Incentive
Stock Options.
(b) Termination. A Stock Appreciation Right shall terminate and shall no
longer be exercisable upon the termination or exercise of the related Stock
Option.
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(c) Method of Exercise. Stock Appreciation Rights shall be exercisable upon
such terms and conditions as shall be determined by the Committee and set forth
in the Agreement and by surrendering the applicable portion of the related Stock
Option. Upon such exercise and surrender, the Holder shall be entitled to
receive a number of Option Shares equal to the SAR Value divided by the exercise
price of the Option.
(d) Shares Affected Upon Plan. The granting of a Stock Appreciation Rights
shall not affect the number of shares of Stock available under for awards under
the Plan. The number of shares available for awards under the Plan will,
however, be reduced by the number of shares of Stock acquirable upon exercise of
the Stock Option to which such Stock Appreciation Right relates.
Section 8. Restricted Stock.
8.1 Grant. Shares of Restricted Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded, the number of shares to be awarded, the price
(if any) to be paid by the Holder, the time or times within which such awards
may be subject to forfeiture (the "Restriction Period"), the vesting schedule
and rights to acceleration thereof, and all other terms and conditions of the
awards.
8.2 Terms and Conditions. Each Restricted Stock award shall be subject to
the following terms and conditions:
A. Certificates. Restricted Stock, when issued, will be represented by a
stock certificate or certificates registered in the name of the Holder to whom
such Restricted Stock shall have been awarded. During the Restriction Period,
certificates representing the Restricted Stock and any securities constituting
Retained Distributions (as defined below) shall bear a legend to the effect that
ownership of the Restricted Stock (and such Retained Distributions), and the
enjoyment of all rights appurtenant thereto, are subject to the restrictions,
terms and conditions provided in the Plan and the Agreement. Such certificates
shall be deposited by the Holder with the Company, together with stock powers or
other instruments of assignment, each endorsed in blank, which will permit
transfer to the Company of all or any portion of the Restricted Stock and any
securities constituting Retained Distributions that shall be forfeited or that
shall not become vested in accordance with the Plan and the Agreement.
(a) Rights of Holder. Restricted Stock shall constitute issued and
outstanding shares of Common Stock for all corporate purposes. The Holder will
have the right to vote such Restricted Stock, to receive and retain all regular
cash dividends and other cash equivalent distributions as the Board may in its
sole discretion designate, pay or distribute on such Restricted Stock and to
exercise all other rights, powers and privileges of a holder of Common Stock
with respect to such Restricted Stock, with the exceptions that (i) the Holder
will not be entitled to delivery of the stock certificate or certificates
representing such Restricted Stock until the Restriction Period shall have
expired and unless all other vesting requirements with respect thereto shall
have been fulfilled; (ii) the Company will retain custody of the stock
certificate or certificates representing the Restricted Stock during the
Restriction Period; (iii)
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other than regular cash dividends and other cash equivalent distributions as the
Board may in its sole discretion designate, pay or distribute, the Company will
retain custody of all distributions ("Retained Distributions") made or declared
with respect to the Restricted Stock (and such Retained Distributions will be
subject to the same restrictions, terms and conditions as are applicable to the
Restricted Stock) until such time, if ever, as the Restricted Stock with respect
to which such Retained Distributions shall have been made, paid or declared
shall have become vested and with respect to which the Restriction Period shall
have expired; (iv) a breach of any of the restrictions, terms or conditions
contained in this Plan or the Agreement or otherwise established by the
Committee with respect to any Restricted Stock or Retained Distributions will
cause a forfeiture of such Restricted Stock and any Retained Distributions with
respect thereto.
(b) Vesting; Forfeiture. Upon the expiration of the
Restriction Period with respect to each award of Restricted Stock and the
satisfaction of any other applicable restrictions, terms and conditions (i) all
or part of such Restricted Stock shall become vested in accordance with the
terms of the Agreement, subject to Section 11, below, and (ii) any Retained
Distributions with respect to such Restricted Stock shall become vested to the
extent that the Restricted Stock related thereto shall have become vested,
subject to Section 11, below. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to the Company and the Holder
shall not thereafter have any rights with respect to such Restricted Stock and
Retained Distributions that shall have been so forfeited.
Section 9. Deferred Stock.
9.1 Grant. Shares of Deferred Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom and the time or times at which grants of Deferred
Stock shall be awarded, the number of shares of Deferred Stock to be awarded to
any person, the duration of the period (the "Deferral Period") during which, and
the conditions under which, receipt of the shares will be deferred, and all the
other terms and conditions of the awards.
9.2 Terms and Conditions. Each Deferred Stock award shall be
subject to the following terms and conditions:
(a) Certificates. At the expiration of the Deferral Period (or
the Additional Deferral Period referred to in Section 9.2 (d) below, where
applicable), share certificates shall be issued and delivered to the Holder, or
his legal representative, representing the number equal to the shares covered by
the Deferred Stock award.
(b) Rights of Holder. A person entitled to receive Deferred
Stock shall not have any rights of a stockholder by virtue of such award until
the expiration of the applicable Deferral Period and the issuance and delivery
of the certificates representing such Stock. The shares of Stock issuable upon
expiration of the Deferral Period shall not be deemed outstanding by the Company
until the expiration of such Deferral Period and the issuance and delivery of
such Stock to the Holder.
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(c) Vesting; Forfeiture. Upon the expiration of the Deferral
Period with respect to each award of Deferred Stock and the satisfaction of any
other applicable restrictions, terms and conditions all or part of such Deferred
Stock shall become vested in accordance with the terms of the Agreement, subject
to Section 11, below. Any such Deferred Stock that does not vest shall be
forfeited to the Company and the Holder shall not thereafter have any rights
with respect to such Deferred Stock.
(d) Additional Deferral Period. A Holder may request to, and
the Committee may at any time, defer the receipt of an award (or an installment
of an award) for an additional specified period or until a specified event (the
"Additional Deferral Period"). Subject to any exceptions adopted by the
Committee, such request must generally be made at least one year prior to
expiration of the Deferral Period for such Deferred Stock award (or such
installment).
Section 10. Other Stock-Based Awards.
10.1 Grant and Exercise. Other Stock-Based Awards may be awarded,
subject to limitations under applicable law, that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on, or related
to, shares of Common Stock, as deemed by the Committee to be consistent with the
purposes of the Plan, including, without limitation, purchase rights, shares of
Common Stock awarded which are not subject to any restrictions or conditions,
convertible or exchangeable debentures, or other rights convertible into shares
of Common Stock and awards valued by reference to the value of securities of or
the performance of specified Subsidiaries. Other Stock-Based Awards may be
awarded either alone or in addition to or in tandem with any other awards under
this Plan or any other plan of the Company.
10.2 Eligibility for Other Stock-Based Awards. The Committee shall
determine the eligible persons to whom and the time or times at which grants of
such other stock-based awards shall be made, the number of shares of Common
Stock to be awarded pursuant to such awards, and all other terms and conditions
of the awards.
10.3 Terms and Conditions. Each Other Stock-Based Award shall be
subject to such terms and conditions as may be determined by the Committee and
to Section 11, below.
Section 11. Accelerated Vesting and Exercisability.
If (i) any person or entity other than the Company and/or any
stockholders of the Company as of the Effective Date acquire securities of the
Company (in one or more transactions) having 25% or more of the total voting
power of all the Company's securities then outstanding and (ii) the Board of
Directors of the Company does not authorize or otherwise approve such
acquisition, then, the vesting periods of any and all Options and other awards
granted and outstanding under the Plan shall be accelerated and all such Options
and awards will immediately and entirely vest, and the respective holders
thereof will have the immediate right to purchase and/or receive any and all
Stock subject to such Options and awards on the terms set forth in this Plan and
the respective agreements respecting such Options and awards.
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Section 12. Amendment and Termination.
Subject to Section 4.2 (iv) hereof, the Board may at any time, and from
time to time, amend alter, suspend or discontinue any of the provisions of the
Plan, but no amendment, alteration, suspension or discontinuance shall be made
which would impair the rights of a Holder under any Agreement theretofore
entered into hereunder, without the Holder's consent.
Section 13. Term of Plan.
13.1 Effective Date. The Plan shall be effective as of August 20, 1996
("Effective Date"). The Effective Date is the date on which all of the Company's
directors and stockholders approved the Plan.
13.2 Termination Date. Unless terminated by the Board, this Plan shall
continue to remain effective until such time no further awards may be granted
and all awards granted under the Plan are no longer outstanding. Notwithstanding
the foregoing, grants of Incentive Stock Options may only be made during the ten
year period following the Effective Date.
Section 14. General Provisions.
14.1 Written Agreements. Each award granted under the Plan shall be
confirmed by, and shall be subject to the terms of the Agreement executed by the
Company and the Holder. The Committee may terminate any award made under the
Plan if the Agreement relating thereto is not executed and returned to the
Company within 10 days after the Agreement has been delivered to the Holder for
his or her execution.
14.2 Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Holder by the Company, nothing contained herein shall
give any such Holder any rights that are greater than those of a general
creditor of the Company.
14.3 Employees.
I. Engaging in Competition With the Company. In the event a Holder's employment
with the Company or a Subsidiary is terminated for any reason whatsoever, and
within one year after the date thereof such Holder accepts employment with any
competitor of, or otherwise engages in competition with, the Company, the
Committee, in its sole discretion, may require such Holder to return to the
Company the economic value of any award which was realized or obtained by such
Holder at any time during the period beginning on that date which is six months
prior to the date of such Holder's termination of employment with the Company.
(a) Termination for Cause. The Committee may, in the event a Holder's
employment with the Company or a Subsidiary is terminated for cause, annul any
award granted under this Plan to
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such employee and, in such event, the Committee, in its sole discretion, may
require such Holder to return to the Company the economic value of any award
which was realized or obtained by such Holder at any time during the period
beginning on that date which is six months prior to the date of such Holder's
termination of employment with the Company.
(b) No Right of Employment. Nothing contained in the Plan or in any award
hereunder shall be deemed to confer upon any Holder who is an employee of the
Company or any Subsidiary any right to continued employment with the Company or
any Subsidiary, nor shall it interfere in any way with the right of the Company
or any Subsidiary to terminate the employment of any Holder who is an employee
at any time.
14.4 Investment Representations. The Committee may require each person
acquiring shares of Stock pursuant to a Stock Option or other award under the
Plan to represent to and agree with the Company in writing that the Holder is
acquiring the shares for investment without a view to distribution thereof.
14.5 Additional Incentive Arrangements. Nothing contained in the Plan
shall prevent the Board from adopting such other or additional incentive
arrangements as it may deem desirable, including, but not limited to, the
granting of Stock Options and the awarding of stock and cash otherwise than
under the Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
14.6 Withholding Taxes. Not later than the date as of which an amount
must first be included in the gross income of the Holder for Federal income tax
purposes with respect to any option or other award under the Plan, the Holder
shall pay to the Company, or make arrangements satisfactory to the Committee
regarding the payment of, any Federal, state and local taxes of any kind
required by law to be withheld or paid with respect to such amount. If permitted
by the Committee, tax withholding or payment obligations may be settled with
Common Stock, including Common Stock that is part of the award that gives rise
to the withholding requirement. The obligations of the Company under the Plan
shall be conditioned upon such payment or arrangements and the Company or the
Holder's employer (if not the Company) shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the Holder from the Company or any Subsidiary.
14.7 Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of New York (without regard to choice of law provisions).
14.8 Other Benefit Plans. Any award granted under the Plan shall not be
deemed compensation for purposes of computing benefits under any retirement plan
of the Company or any Subsidiary and shall not affect any benefits under any
other benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation (unless required by
specific reference in any such other plan to awards under this Plan).
14.9 Non-Transferability. Except as otherwise expressly provided in the
Plan, no right or benefit under the Plan may be alienated, sold, assigned,
hypothecated, pledged, exchanged, transferred,
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encumbranced or charged, and any attempt to alienate, sell, assign, hypothecate,
pledge, exchange, transfer, encumber or charge the same shall be void.
14.10 Applicable Laws. The obligations of the Company with respect to
all Stock Options and awards under the Plan shall be subject to (i) all
applicable laws, rules and regulations and such approvals by any governmental
agencies as may be required, including, without limitation, the Securities Act
of 1933, as amended, and (ii) the rules and regulations of any securities
exchange on which the Stock may be listed.
14.11 Conflicts. If any of the terms or provisions of the Plan or an
Agreement (with respect to Incentive Stock Options) conflict with the
requirements of Section 422 of the Code, then such terms or provisions shall be
deemed inoperative to the extent they so conflict with the requirements of said
Section 422 of the Code. Additionally, if this Plan or any Agreement does not
contain any provision required to be included herein under Section 422 of the
Code, such provision shall be deemed to be incorporated herein and therein with
the same force and effect as if such provision had been set out at length herein
and therein. If any of the terms or provisions of any Agreement conflict with
any terms or provision of the Plan, then such terms or provisions shall be
deemed inoperative to the extent they so conflict with the requirements of the
Plan. Additionally, if any Agreement does not contain any provision required to
be included therein under the Plan, such provision shall be deemed to be
incorporated therein with the same force and effect as if such provision had
been set out at length therein.
14.12 Non-Registered Stock. The shares of Stock to be distributed under
this Plan have not been, as of the Effective Date, registered under the
Securities Act of 1933, as amended, or any applicable state or foreign
securities laws and the Company has no obligation to any Holder to register the
Stock or to assist the Holder in obtaining an exemption from the various
registration requirements, or to list the Stock on a national securities
exchange.
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EXHIBIT 4.2
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 15th day of October, 1994 between
GLOBAL TELECOMMUNICATION SOLUTIONS, INC., a Delaware corporation ("Company"),
and SHELLY FINKEL ("Optionee").
WHEREAS, Optionee has rendered certain services to the Company;
WHEREAS, in consideration for such services, the Company has
awarded Optionee certain options ("Options") to purchase 30,000 of the
authorized but unissued or treasury shares of the common stock of the Company,
$.01 par value ("Common Stock"); and
WHEREAS, Optionee desires to acquire the options on the terms
and conditions set forth in this Agreement:
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants Optionee the Option to
purchase all or any part of an aggregate of 30,000 shares of Common Stock (the
"Option Shares") on the terms and conditions set forth herein.
2. Nonincentive Stock Option. The Option represented hereby is a
nonqualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be $3.33 per
share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, at any time from and after the date hereof, and it
shall remain exer- cisable, except as otherwise provided herein, until the close
of business on October 14, 2004 (the "Exercise Period").
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of Optionee for Federal income tax purposes
with respect to the Option, Optionee may be required to pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of, any
Federal, state and local taxes of any kind required
<PAGE>
by law to be withheld or paid with respect to such amount. The obligations of
the Company pursuant to this Agreement shall be conditional upon such payments
or arrangements with the Company, if such payments or arrangements are required,
and the Company shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to Optionee from the
Company.
6. Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, consolidation, recapitalization, dividend
(other than cash dividend), stock split, reverse stock split, or other similar
change in corporate structure affecting the kind or number of issued shares of
Common Stock as a class, the Company shall proportionally adjust the number and
kind of Option Shares and the exercise price of the Option in order to prevent
the dilution or enlargement of the Optionee's proportionate interest in the
Company and his rights hereunder, provided that the number of Option Shares
shall always be a whole number.
7. Method of Exercise.
7.1. Notice to the Company. The Option shall be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice.
7.2. Delivery of Option Shares. The Company shall deliver a certificate for
the Option Shares to Optionee as soon as practicable after payment therefor.
7.3. Payment of Purchase Price.
7.3.1. Cash Payment. Optionee shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof.
7.3.2. Cashless Payment. The Company, in its sole discretion, may allow
Optionee to use Common Stock of the Company owned by him (or to surrender a
portion of this Option) to pay the purchase price for the Option Shares (and any
required withholding taxes) by delivery of stock certificates in negotiable form
which are effective to transfer
2
<PAGE>
good and valid title thereto to the Company, free of any liens or encumbrances.
Shares of Common Stock used for this purpose shall be valued at the Fair Market
Value, as defined below. The value of any Option surrendered shall equal the
difference between the Exercise Price and the Fair Market Value on the date of
surrender multiplied by the number of Option Shares underlying the portion of
the Option surrendered.
7.3.3. Fair Market Value. "Fair Market Value," unless otherwise required by
any applicable provision of the Internal Revenue Code of 1986, as amended, or
any regulations issued thereunder, means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on the last trading
day preceding the date of grant of an award hereunder, as reported by the
exchange or Nasdaq, as the case may be; (ii) if the Common Stock is not listed
on a national securities exchange or quoted on the Nasdaq National Market or
Nasdaq SmallCap Market, but is traded in the over-the-counter market, the
closing bid price for the Common Stock on the last trading day preceding the
date of grant of an award hereunder for which such quotations are reported by
the OTC Bulletin Board or the National Quotation Bureau, Incorporated or similar
publisher of such quotations; and (iii) if the Fair Market Value of the Common
Stock cannot be determined pursuant to clause (i) or (ii) above, such price as
the Company shall determine, in good faith.
8. Nonassignability. The Option shall not be assignable or transferable,
without the consent of the Company, except by will or by the laws of descent and
distribution in the event of the death of Optionee. No transfer of the Option by
Optionee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and/or such other evidence as the Company
may deem necessary to establish the validity of the transfer and the acceptance
by the transferee or transferees of the terms and conditions of the Option.
9. Company Representations. The Company hereby represents and warrants to
Optionee that:
(i) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the
transactions contemplated hereunder; and
3
<PAGE>
(ii) the Option Shares, when issued and delivered by the Company to
Optionee in accordance with the terms and conditions hereof, will be
duly and validly issued and fully paid and non-assessable.
10. Optionee Representations. Optionee hereby represents and warrants to
the Company that
(i) he is acquiring the Option and shall acquire the Option Shares for his
own account and not with a view towards the distribution thereof;
(ii) he has received a copy of all reports and documents required to be
filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii)he understands that he must bear the economic risk of the investment
in the Option Shares, which cannot be sold by him unless they are
registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) he has had both the opportunity to ask questions and receive answers
from the officers and directors of the Company and all persons acting
on its behalf concerning the terms and conditions of the offer made
hereunder and to obtain any additional information to the extent the
Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom
as provided herein; and
(vi) the certificates evidencing the Option Shares shall bear the following
legends:
4
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of October 15, 1994, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
(vii)he agrees that he shall not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by him except in accordance with
Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
11. Restriction on Transfer of Option Shares.
(a) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the 1933 Act, or
in the event that they are not so registered, unless (i) an exemption from the
1933 Act registration requirements is available thereunder, and (ii) Optionee
has furnished the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
(b) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that, if he is, or at any time hereinafter becomes, an employee or
director of the Company or any subsidiary thereof, he shall not sell, transfer
by any means or otherwise dispose of the Option Shares acquired by him except in
accordance with Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
12. Miscellaneous.
12.1. Notices. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier to the parties at their
respective addresses set forth herein, or to such other
5
<PAGE>
address as either shall have specified by notice in writing to the other. Notice
shall be deemed duly given hereunder when delivered or mailed as provided
herein.
12.2. Optionee and Stockholder Rights. Optionee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option. If Optionee is, or hereinafter
becomes, an employee or director of the Company or any subsidiary thereof,
nothing contained in this Agreement shall be deemed to confer upon Optionee any
right to continued employment with, or a continued directorship position with,
the Company or any subsidiary thereof, nor shall it interfere in any way with
the right of the Company to terminate Optionee in accordance with the provisions
regarding such termination set forth in Optionee's written employment agreement
with the Company, or if there exists no such agreement, to terminate Optionee at
will, and/or terminate Optionee's directorship in accordance with the Company's
Certificate of Incorporation and By-laws and/or the laws of the State of
Delaware, as the case may be.
12.3. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
12.4. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by Optionee and the Company.
12.5. Binding Effect; Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, to the extent not prohibited
herein, their respective heirs, successors, assigns and representatives. Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
12.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
6
<PAGE>
12.7. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 342 Madison Avenue
New York, New York 10173
By: /s/ Paul Silverstein
- ----------------------------
OPTIONEE:
Address: 1385 York Avenue, #11B
New York, NY 10021
/s/ Shelly Finkel
- -----------------------------
Shelly Finkel
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
Global Telecommunication Solutions, Inc.
342 Madison Avenue
New York, New York 10173
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
October 15, 1994 with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to the order
of "Global Telecommunication Solutions, Inc." in the sum of
$_________;
|_| confirmation of wire transfer in the amount of $_____________; and/or
|_| with the consent of the Company, a certificate for _________ shares of
the Company's Common Stock, free and clear of any encumbrances, duly
endorsed, having a Fair Market Value (as such term is defined in
Section 7.3.3 of the Stock Option Agreement) of $_________.
|_| with the consent of the Company, by surrender of a portion of my
Option having a value of $_____________ as calculated in accordance
with Section 7.3.2 of the Stock Option Agreement.
I hereby represent and warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the Option Shares for my
own account, for investment, and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and documents required to be
filed by the Company with the Commission pursuant to the Exchange Act
within the last 24 months and all reports issued by the Company to its
stockholders;
(iii)I understand that I must bear the economic risk of the investment in
the Option Shares, which cannot be sold by me unless they are
registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) I agree that I will not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and
disposition of securities owned by employees and/or directors of the
Company;
<PAGE>
(v) in my position with the Company, I have had both the opportunity to
ask questions and receive answers from the officers and directors of
the Company and all persons acting on its behalf concerning the terms
and conditions of the offer made hereunder and to obtain any
additional information to the extent the Company possesses or may
possess such information or can acquire it without unreasonable effort
or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
(vi) I am aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom
as provided herein; and
(vii)the certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the Securities Act
of 1933. The shares may not be sold or transferred in the absence of
such registration or an exemption therefrom under said Act."
"The shares represented by this certificate have been acquired
pursuant to a Stock Option Agreement, dated as of October 15, 1994 a
copy of which is on file with the Company, and may not be transferred,
pledged or disposed of except in accordance with the terms and
conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ ----------------------------------------
(Signature) (Address)
- ------------------------------ ----------------------------------------
(Print Name)
----------------------------------------
(Social Security Number)
2
<PAGE>
EXHIBIT 4.3
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 15th day of October, 1994 between
GLOBAL TELECOMMUNICATION SOLUTIONS, INC., a Delaware corporation ("Company"),
and JAMES KOPLIK ("Optionee").
WHEREAS, Optionee has rendered certain services to the Company;
WHEREAS, in consideration for such services, the Company has
awarded Optionee certain options ("Options") to purchase 15,000 of the
authorized but unissued or treasury shares of the common stock of the Company,
$.01 par value ("Common Stock"); and
WHEREAS, Optionee desires to acquire the options on the terms
and conditions set forth in this Agreement:
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants Optionee the Option to
purchase all or any part of an aggregate of 15,000 shares of Common Stock (the
"Option Shares") on the terms and conditions set forth herein.
2. Nonincentive Stock Option. The Option represented hereby is a
nonqualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be $3.33 per
share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, at any time from and after the date hereof, and it
shall remain exercisable, except as otherwise provided herein, until the close
of business on October 14, 2004 (the "Exercise Period").
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of Optionee for Federal income tax purposes
with respect to the Option, Optionee may be required to pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of, any
Federal, state and local taxes of any kind required
<PAGE>
by law to be withheld or paid with respect to such amount. The obligations of
the Company pursuant to this Agreement shall be conditional upon such payments
or arrangements with the Company, if such payments or arrangements are required,
and the Company shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to Optionee from the
Company.
6. Adjustments. In the event of any merger, reorganization, consolidation,
recapitalization, consolidation, recapitalization, dividend (other than cash
dividend), stock split, reverse stock split, or other similar change in
corporate structure affecting the kind or number of issued shares of Common
Stock as a class, the Company shall proportionally adjust the number and kind of
Option Shares and the exercise price of the Option in order to prevent the
dilution or enlargement of the Optionee's proportionate interest in the Company
and his rights hereunder, provided that the number of Option Shares shall always
be a whole number.
7. Method of Exercise.
7.1. Notice to the Company. The Option shall be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice.
7.2. Delivery of Option Shares. The Company shall deliver a certificate for
the Option Shares to Optionee as soon as practicable after payment therefor.
7.3. Payment of Purchase Price.
7.3.1. Cash Payment. Optionee shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof.
7.3.2. Cashless Payment. The Company, in its sole discretion, may allow
Optionee to use Common Stock of the Company owned by him (or to surrender a
portion of this Option) to pay the purchase price for the Option Shares (and any
required withholding taxes) by delivery of stock certificates in negotiable form
which are effective to transfer
2
<PAGE>
good and valid title thereto to the Company, free of any liens or encumbrances.
Shares of Common Stock used for this purpose shall be valued at the Fair Market
Value, as defined below. The value of any Option surrendered shall equal the
difference between the Exercise Price and the Fair Market Value on the date of
surrender multiplied by the number of Option Shares underlying the portion of
the Option surrendered.
7.3.3. Fair Market Value. "Fair Market Value," unless otherwise required by
any applicable provision of the Internal Revenue Code of 1986, as amended, or
any regulations issued thereunder, means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on the last trading
day preceding the date of grant of an award hereunder, as reported by the
exchange or Nasdaq, as the case may be; (ii) if the Common Stock is not listed
on a national securities exchange or quoted on the Nasdaq National Market or
Nasdaq SmallCap Market, but is traded in the over-the-counter market, the
closing bid price for the Common Stock on the last trading day preceding the
date of grant of an award hereunder for which such quotations are reported by
the OTC Bulletin Board or the National Quotation Bureau, Incorporated or similar
publisher of such quotations; and (iii) if the Fair Market Value of the Common
Stock cannot be determined pursuant to clause (i) or (ii) above, such price as
the Company shall determine, in good faith.
8. Nonassignability. The Option shall not be assignable or transferable,
without the consent of the Company, except by will or by the laws of descent and
distribution in the event of the death of Optionee. No transfer of the Option by
Optionee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and/or such other evidence as the Company
may deem necessary to establish the validity of the transfer and the acceptance
by the transferee or transferees of the terms and conditions of the Option.
9. Company Representations. The Company hereby represents and warrants to
Optionee that:
(i) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the
transactions contemplated hereunder; and
3
<PAGE>
(ii) the Option Shares, when issued and delivered by the Company to
Optionee in accordance with the terms and conditions hereof, will be
duly and validly issued and fully paid and non-assessable.
10. Optionee Representations. Optionee hereby represents and warrants to
the Company that
(i) he is acquiring the Option and shall acquire the Option Shares for his
own account and not with a view towards the distribution thereof;
(ii) he has received a copy of all reports and documents required to be
filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii)he understands that he must bear the economic risk of the investment
in the Option Shares, which cannot be sold by him unless they are
registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) he has had both the opportunity to ask questions and receive answers
from the officers and directors of the Company and all persons acting
on its behalf concerning the terms and conditions of the offer made
hereunder and to obtain any additional information to the extent the
Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom
as provided herein; and
(vi) the certificates evidencing the Option Shares shall bear the following
legends:
4
<PAGE>
"The shares represented by this certificate have been acquired
for investment and have not been registered under the Securities Act
of 1933. The shares may not be sold or transferred in the absence of
such registration or an exemption therefrom under said Act."
"The shares represented by this certificate have been acquired
pursuant to a Stock Option Agreement, dated as of October 15, 1994, a
copy of which is on file with the Company, and may not be transferred,
pledged or disposed of except in accordance with the terms and
conditions thereof."
(vii)he agrees that he shall not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by him except in accordance with
Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
11. Restriction on Transfer of Option Shares.
(a) Anything in this Agreement to the contrary notwithstanding,
Optionee hereby agrees that he shall not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by him
without registration under the 1933 Act, or in the event that
they are not so registered, unless (i) an exemption from the 1933
Act registration requirements is available thereunder, and (ii)
Optionee has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable
opinion, shall deem such proposed transfer to be so exempt.
(b) Anything in this Agreement to the contrary notwithstanding,
Optionee hereby agrees that, if he is, or at any time hereinafter
becomes, an employee or director of the Company or any subsidiary
thereof, he shall not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by him except in accordance
with Company's policy, if any, regarding the sale and disposition
of securities owned by employees and/or directors of the Company.
12. Miscellaneous.
12.1. Notices. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier to the parties at their
respective addresses set forth herein, or to such other
5
<PAGE>
address as either shall have specified by notice in writing to the other. Notice
shall be deemed duly given hereunder when delivered or mailed as provided
herein.
12.2. Optionee and Stockholder Rights. Optionee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option. If Optionee is, or hereinafter
becomes, an employee or director of the Company or any subsidiary thereof,
nothing contained in this Agreement shall be deemed to confer upon Optionee any
right to continued employment with, or a continued directorship position with,
the Company or any subsidiary thereof, nor shall it interfere in any way with
the right of the Company to terminate Optionee in accordance with the provisions
regarding such termination set forth in Optionee's written employment agreement
with the Company, or if there exists no such agreement, to terminate Optionee at
will, and/or terminate Optionee's directorship in accordance with the Company's
Certificate of Incorporation and By-laws and/or the laws of the State of
Delaware, as the case may be.
12.3. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
12.4. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by Optionee and the Company.
12.5. Binding Effect; Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, to the extent not prohibited
herein, their respective heirs, successors, assigns and representatives. Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
12.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
6
<PAGE>
12.7. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 342 Madison Avenue
New York, New York 10173
By: /s/ Shelly Finkel
---------------------
OPTIONEE:
Address: 251 Dogwood Lane
Stamford, CT 06903
/s/ James Koplik
- ---------------------------
James Koplik
7
<PAGE>
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
Global Telecommunication Solutions, Inc.
342 Madison Avenue
New York, New York 10173
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
October 15, 1994 with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check]
payable to the order of "Global Telecommunication Solutions,
Inc." in the sum of $_________;
|_| confirmation of wire transfer in the amount of
$_____________; and/or
|_| with the consent of the Company, a certificate for
_________ shares of the Company's Common Stock, free and clear of
any encumbrances, duly endorsed, having a Fair Market Value (as
such term is defined in Section 7.3.3 of the Stock Option
Agreement) of $_________.
|_| with the consent of the Company, by surrender of a
portion of my Option having a value of $_____________ as
calculated in accordance with Section 7.3.2 of the Stock Option
Agreement.
I hereby represent and warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the Option Shares for
my own account, for investment, and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and documents required to
be filed by the Company with the Commission pursuant to the
Exchange Act within the last 24 months and all reports issued by
the Company to its stockholders;
(iii)I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the
"1933 Act") or an exemption therefrom is available thereunder and
that the Company is under no obligation to register the Option
Shares for sale under the 1933 Act;
(iv) I agree that I will not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and
disposition of securities owned by employees and/or directors of
the Company;
<PAGE>
(v) in my position with the Company, I have had both the opportunity
to ask questions and receive answers from the officers and
directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder
and to obtain any additional information to the extent the
Company possesses or may possess such information or can acquire
it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii)
above;
(vi) I am aware that the Company shall place stop transfer orders with
its transfer agent against the transfer of the Option Shares in
the absence of registration under the 1933 Act or an exemption
therefrom as provided herein; and
(vii)the certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or transferred
in the absence of such registration or an exemption therefrom
under said Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated as of
October 15, 1994 a copy of which is on file with the Company, and
may not be transferred, pledged or disposed of except in
accordance with the terms and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ ----------------------------------------
(Signature) (Address)
- ------------------------------ ----------------------------------------
(Print Name)
----------------------------------------
(Social Security Number)
2
<PAGE>
EXHIBIT 4.4
STOCK OPTION AGREEMENT
AGREEMENT, dated as of March ___, 1995, between GLOBAL TELECOMMUNICATION
SOLUTIONS, INC., a Delaware corporation ("Company"), and JOHN McCABE (the
"Employee" or "Grantee").
WHEREAS, on March ___, 1995, the Board of Directors authorized the
employment of the Employee pursuant to the terms of an Employment Agreement
dated as of March ___, 1995, and the grant to the Employee of an option to
purchase an aggregate of 100,000 of the authorized but unissued or treasury
shares of the Common Stock of the Company, $.01 par value ("Common Stock"), on
the terms and conditions set forth in this Agreement; and
WHEREAS, the Employee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Employee the right and option to
purchase all or any part of an aggregate of 100,000 shares of the Common Stock
on the terms and conditions set forth herein ("Option"). Said Option is a
non-qualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended, and is not granted under any plan,
including the Company's 1994 Performance Equity Plan ("Plan"). Certain terms
used herein, however, are defined under the Plan.
2. The purchase price of each share of Common Stock subject to the Option
("Option Shares") shall be $5.00.
3. (a) This Option is exercisable, subject to the terms and conditions of
this Agreement, as follows: (i) options to purchase 33-1/3% of the Option Shares
shall be exercisable on or after March __, 1996; (ii) options to purchase an
additional 33-1/3% of the
<PAGE>
Option Shares shall be exercisable on and after March __, 1997, and (iii)
options to purchase the remaining 33-1/3% of the options shares shall be
exercisable on and after March __, 1998. After a portion of the options become
exercisable, it shall remain exercisable, except as otherwise provided herein,
for a period of five years from the date of vesting ("Exercise Period"). The
Option may be exercised, except as provided in subparagraph (b), below, only if
the Employee at the time of exercise is employed by the Company or a
wholly-owned subsidiary thereof and shall have been so employed continuously
since the date of this Agreement.
(b) If the Employee's employment with the Company terminates for any reason
prior to the time that the Option has been fully exercised, the portion of the
Option not yet exercisable on the date of termination of employment and the
portion of the Option which is exercisable on the date of termination of
employment shall immediately expire; provided, however, that (i) if the
Employee's employment is terminated by reason of the Employee's Disability (as
such term is defined under the Plan), the Option shall become fully vested and
exercisable and may be exercised by the Employee for a period of one year from
the date of such termination or until the expiration of the Exercise Period,
whichever is shorter; (ii) in the event of the death of the Employee while in
the employment of the Company, the Option shall become fully vested and
exercisable by the legal representative of the estate or by the legatee of the
Employee under the will of the employee for a period of one year from the date
of such death or until the expiration of the Exercise Period, whichever is
shorter; and (iii) in the event the Employee is terminated without cause or due
to Normal Retirement (as such term is defined under the Plan), then the portion
of the Option that has vested by the date of such termination of employment may
be exercised for a period of one year from the date of such termination of
employment or until the expiration of the Exercise Period, whichever is shorter.
(c) The Option shall not be assignable or transferable except in the event
of the death of the Employee, by will or by the laws of descent and
distribution. No transfer of the Option by the Employee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and such other evidence as the Company may deem necessary
2
<PAGE>
to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the Option.
4. The Employee shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issued after the due
exercise of the Option.
5. In the event of a reorganization, recapitalization, reclassification,
stock split or exchange, stock dividend, combination of shares, or any other
similar change in the Common Stock of the Company as a whole, the Board of
Directors of the Company shall make such equitable, proportionate adjustments,
if any, as it deems appropriate in the number and kind of shares covered by the
Option and in the option price thereunder, in order to preserve the Employee's
proportionate interest in the Company and to maintain the aggregate option
price; provided, however, that upon the dissolution or liquidation of the
Company, or upon any merger, consolidation or other form of reorganization, or
upon the sale of all or substantially all of the Company's assets, the Option
may be terminated by the Company or its successor and be of no further effect.
6. The Company hereby represents and warrants to the Employee that the
Option Shares, when issued and delivered by the Company to the Employee in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
7. The Employee hereby represents and warrants to the Company that he is
acquiring the Option and shall acquire the Option Shares for his own account and
not with a view to the distribution thereof.
8. Anything in this Agreement to the contrary notwithstanding, the Employee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the Securities
Act of 1933 ("Act"), or in the event that they are not so registered, unless (a)
an exemption from the Act is available thereunder, and (b) the Employee has
furnished the Company with notice of such proposed
3
<PAGE>
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such opposed transfer to be so exempt.
9. The Company hereby grants to Employee the right to have the Option
Shares registered on any registration statement on Form S-8 or any amendment
thereto filed by the Company, during the period in which Employee is employed by
the Company or by any subsidiary thereof. Notwithstanding the foregoing, the
Company shall have no obligation hereunder in connection with any registration
statement or amendment thereto unless the Employee provides to the Company
information with respect to his ownership of Option Shares, manner of proposed
disposition and such other matters as the Company shall reasonably request for
disclosure in the registration statement or any amendment thereto.
10. In the event of a "Change in Control" of the Company, as defined in the
Plan, then the option vesting periods hereunder shall be accelerated, the Option
will immediately and entirely vest, and the Employee will have the right to
immediately purchase all Option Shares on the terms set forth in this Agreement.
11. The Employee hereby acknowledges that:
(a) All reports and documents required to be filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 within the last 12 months have been made available to the Employee for his
inspection.
(b) If he exercises the Option, he must bear the economic risk of the
investment in the Option Shares for an indefinite period of time because the
Option Shares will not have been registered under the Act and cannot be sold by
him unless they are registered under the Act or an exemption therefrom is
available thereunder.
(c) In his position with the Company, he has had both the opportunity to
ask questions of and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder
4
<PAGE>
and to obtain any additional information to the extent the Company possesses or
may possess such information or can acquire it without unreasonable effort or
expense necessary to verify the accuracy of the information obtained pursuant to
subparagraph (a) above.
(d) The Company shall place stop transfer orders with its transfer agent
against the transfer of the Option Shares in the absence of registration under
the Act or an exemption therefrom.
(e) The certificates evidencing the Option Shares shall bear the following
legends:
"The Shares represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or transferred
in the absence of such registration or an exemption therefrom
under said Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated as of March
___, 1995, a copy of which is on file with the Company, and may
not be transferred, pledged or disposed or except in accordance
with the terms and conditions thereof."
12. Subject to the terms and conditions of the Agreement, the Option may be
exercised by written notice to the Company at its principal place of business.
Such notice shall state the election to exercise the Option and the number of
Option Shares in respect to which it is being exercised, shall contain a
representation and agreement by the person or persons so exercising the Option
that the Option Shares are being purchased for investment and not with a view to
the distribution or resale thereof, and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of the Option Shares. Payment of the purchase price shall be
made in cash or by check, bank draft or money order payable to the order of the
Company or, with the Company's consent, by using Common Stock of the Company or
another means of "cashless exercise" approved by the Company. The Company shall
issue a certificate or certificates evidencing the Option Shares as soon as
practicable after the notice and payment is received. The certificate or
certificates
5
<PAGE>
evidencing the Option Shares shall be registered in the name of the person or
persons so exercising the Option.
13. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or mailed, as the case may be.
14. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
15. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
16. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors, assigns and representatives. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto and
as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first written above.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 342 Madison Avenue
New York, New York 10173
By: /s/ Shelly Finkel
- -------------------------------
OPTIONEE:
Address: 125 Harvard Avenue
Rockville Centre, NY 11570
/s/ John McCabe
- -------------------------------
JOHN McCABE
7
<PAGE>
EXHBIT 4.5
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 28th day of April, 1995 between
GLOBAL TELECOMMUNICATION SOLUTIONS, INC., a Delaware corporation ("Company"),
and ELEANOR FEFFER ("Optionee").
WHEREAS, Optionee has rendered certain services to the Company;
WHEREAS, in consideration for such services, the Company has awarded
Optionee certain options ("Options") to purchase 5,000 of the authorized but
unissued or treasury shares of the common stock of the Company, $.01 par value
("Common Stock"); and
WHEREAS, Optionee desires to acquire the options on the terms and
conditions set forth in this Agreement:
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants Optionee the Option to
purchase all or any part of an aggregate of 5,000 shares of Common Stock (the
"Option Shares") on the terms and conditions set forth herein.
2. Nonincentive Stock Option. The Option represented hereby is a
nonqualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be $5.50 per
share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, at any time from and after the date hereof, and it
shall remain exer cisable, except as otherwise provided herein, until the close
of business on April 27, 2000 (the "Exercise Period").
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of Optionee for Federal income tax purposes
with respect to the Option, Optionee may be required to pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount. The obligations of the Company
1
<PAGE>
pursuant to this Agreement shall be conditional upon such payments or
arrangements with the Company, if such payments or arrangements are required,
and the Company shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to Optionee from the
Company.
6. Adjustments. In the event of any merger, reorganization, consolidation,
recapitalization, consolidation, recapitalization, dividend (other than cash
dividend), stock split, reverse stock split, or other similar change in
corporate structure affecting the kind or number of issued shares of Common
Stock as a class, the Company shall proportionally adjust the number and kind of
Option Shares and the exercise price of the Option in order to prevent the
dilution or enlargement of the Optionee's proportionate interest in the Company
and his rights hereunder, provided that the number of Option Shares shall always
be a whole number.
7. Method of Exercise.
7.1. Notice to the Company. The Option shall be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice.
7.2. Delivery of Option Shares. The Company shall deliver a certificate for
the Option Shares to Optionee as soon as practicable after payment therefor.
7.3. Payment of Purchase Price.
7.3.1. Cash Payment. Optionee shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof.
7.3.2. Cashless Payment. The Company, in its sole discretion, may allow
Optionee to use Common Stock of the Company owned by him (or to surrender a
portion of this Option) to pay the purchase price for the Option Shares (and any
required withholding taxes) by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the Company,
free of any liens or encumbrances. Shares of
2
<PAGE>
Common Stock used for this purpose shall be valued at the Fair Market Value, as
defined below. The value of any Option surrendered shall equal the difference
between the Exercise Price and the Fair Market Value on the date of surrender
multiplied by the number of Option Shares underlying the portion of the Option
surrendered.
7.3.3. Fair Market Value. "Fair Market Value," unless otherwise required by
any applicable provision of the Internal Revenue Code of 1986, as amended, or
any regulations issued thereunder, means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on the last trading
day preceding the date of grant of an award hereunder, as reported by the
exchange or Nasdaq, as the case may be; (ii) if the Common Stock is not listed
on a national securities exchange or quoted on the Nasdaq National Market or
Nasdaq SmallCap Market, but is traded in the over-the-counter market, the
closing bid price for the Common Stock on the last trading day preceding the
date of grant of an award hereunder for which such quotations are reported by
the OTC Bulletin Board or the National Quotation Bureau, Incorporated or similar
publisher of such quotations; and (iii) if the Fair Market Value of the Common
Stock cannot be determined pursuant to clause (i) or (ii) above, such price as
the Company shall determine, in good faith.
8. Nonassignability. The Option shall not be assignable or transferable,
without the consent of the Company, except by will or by the laws of descent and
distribution in the event of the death of Optionee. No transfer of the Option by
Optionee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and/or such other evidence as the Company
may deem necessary to establish the validity of the transfer and the acceptance
by the transferee or transferees of the terms and conditions of the Option.
9. Company Representations. The Company hereby represents and warrants to
Optionee that:
(i) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the
transactions contemplated hereunder; and
3
<PAGE>
(ii) the Option Shares, when issued and delivered by the Company to
Optionee in accordance with the terms and conditions hereof, will be
duly and validly issued and fully paid and non-assessable.
10. Optionee Representations. Optionee hereby represents and warrants to
the Company that
(i) he is acquiring the Option and shall acquire the Option Shares for his
own account and not with a view towards the distribution thereof;
(ii) he has received a copy of all reports and documents required to be
filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii)he understands that he must bear the economic risk of the invest ment
in the Option Shares, which cannot be sold by him unless they are
registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) he has had both the opportunity to ask questions and receive answers
from the officers and directors of the Company and all persons acting
on its behalf concerning the terms and conditions of the offer made
hereunder and to obtain any additional information to the extent the
Company possesses or may possess such infor mation or can acquire it
without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom
as provided herein; and
(vi) the certificates evidencing the Option Shares shall bear the following
legends:
4
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of April 28, 1995, a copy of which is on file with
the Company, and may not be transferred, pledged or
disposed of except in accordance with the terms and
conditions thereof."
(vii)he agrees that he shall not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by him except in accordance with
Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
11. Restriction on Transfer of Option Shares.
(a) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the 1933 Act, or
in the event that they are not so registered, unless (i) an exemption from the
1933 Act registration requirements is available thereunder, and (ii) Optionee
has furnished the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
(b) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that, if he is, or at any time hereinafter becomes, an employee or
director of the Company or any subsidiary thereof, he shall not sell, transfer
by any means or otherwise dispose of the Option Shares acquired by him except in
accordance with Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
12. Miscellaneous.
12.1. Notices. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier to the parties at their
respective addresses set forth herein, or to such other
5
<PAGE>
address as either shall have specified by notice in writing to the other. Notice
shall be deemed duly given hereunder when delivered or mailed as provided
herein.
12.2. Optionee and Stockholder Rights. Optionee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option. If Optionee is, or hereinafter
becomes, an employee or director of the Company or any subsidiary thereof,
nothing contained in this Agreement shall be deemed to confer upon Optionee any
right to continued employment with, or a continued directorship position with,
the Company or any subsidiary thereof, nor shall it interfere in any way with
the right of the Company to terminate Optionee in accordance with the provisions
regarding such termination set forth in Optionee's written employment agreement
with the Company, or if there exists no such agreement, to terminate Optionee at
will, and/or terminate Optionee's directorship in accordance with the Company's
Certificate of Incorporation and By-laws and/or the laws of the State of
Delaware, as the case may be.
12.3. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
12.4. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by Optionee and the Company.
12.5. Binding Effect; Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, to the extent not prohibited
herein, their respective heirs, successors, assigns and representatives. Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
12.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
6
<PAGE>
12.7. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 342 Madison Avenue
New York, New York 10173
By: /s/ Shelly Finkel
- --------------------------
OPTIONEE:
Address:______________________________
/s/ Eleanor Feffer
- ----------------------------
ELEANOR FEFFER
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
Global Telecommunication Solutions, Inc.
342 Madison Avenue
New York, New York 10173
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
_______ __, 199_ with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to the
order of "Global Telecommunication Solutions, Inc." in the sum of
$_________;
|_| confirmation of wire transfer in the amount of $_____________;
and/or
|_| with the consent of the Company, a certificate for _________
shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a Fair Market Value (as such
term is defined in Section 7.3.3 of the Stock Option Agreement)
of $_________.
|_| with the consent of the Company, by surrender of a portion of my
Option having a value of $_____________ as calculated in
accordance with Section 7.3.2 of the Stock Option Agreement.
I hereby represent and warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the Option Shares for my
own account, for investment, and not with a view towards the distribution
thereof;
(ii) I have received a copy of all reports and documents required to be
filed by the Company with the Commission pursuant to the Exchange Act within the
last 24 months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk of the investment in
the Option Shares, which cannot be sold by me unless they are registered under
the Securities Act of 1933 (the "1933 Act") or an exemption therefrom is
available thereunder and that the Company is under no obli gation to register
the Option Shares for sale under the 1933 Act;
(iv) I agree that I will not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by me hereby except in accordance with
Company's policy, if any, regarding the sale and disposition of securities owned
by employees and/or directors of the Company;
1
<PAGE>
(v) in my position with the Company, I have had both the opportunity to ask
questions and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of the
offer made hereunder and to obtain any additional information to the extent the
Company possesses or may possess such information or can acquire it without
unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to clause (ii) above;
(vi) I am aware that the Company shall place stop transfer orders with its
transfer agent against the transfer of the Option Shares in the absence of
registration under the 1933 Act or an exemption therefrom as provided herein;
and
(vii) the certificates evidencing the Option Shares shall bear the
following legends:
"The shares represented by this certificate
have been acquired for investment and have
not been registered under the Securities Act
of 1933. The shares may not be sold or trans
ferred in the absence of such registration
or an exemption therefrom under said Act."
"The shares represented by this certificate
have been acquired pursuant to a Stock
Option Agreement, dated as of October 15,
1994 a copy of which is on file with the
Company, and may not be transferred, pledged
or disposed of except in accordance with the
terms and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ ----------------------------------------
(Signature) (Address)
- ------------------------------ ----------------------------------------
(Print Name)
----------------------------------------
(Social Security Number)
2
<PAGE>
EXHIBIT 4.6
STOCK OPTION AGREEMENT
AGREEMENT, made as of the 28th day of April, 1995 between GLOBAL
TELECOMMUNICATION SOLUTIONS, INC., a Delaware corporation ("Company"), and JOHN
SILVERMAN ("Optionee").
WHEREAS, Optionee has rendered certain services to the Company;
WHEREAS, in consideration for such services, the Company has awarded
Optionee certain options ("Options") to purchase 2,500 of the authorized but
unissued or treasury shares of the common stock of the Company, $.01 par value
("Common Stock"); and
WHEREAS, Optionee desires to acquire the options on the terms and
conditions set forth in this Agreement:
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants Optionee the Option to
purchase all or any part of an aggregate of 2,500 shares of Common Stock (the
"Option Shares") on the terms and conditions set forth herein.
2. Nonincentive Stock Option. The Option represented hereby is a
nonqualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be $5.50 per
share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, at any time from and after the date hereof, and it
shall remain exer cisable, except as otherwise provided herein, until the close
of business on April 27, 2000 (the "Exercise Period").
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of Optionee for Federal income tax purposes
with respect to the Option, Optionee may be required to pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount. The obligations of the Company
1
<PAGE>
pursuant to this Agreement shall be conditional upon such payments or
arrangements with the Company, if such payments or arrangements are required,
and the Company shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment of any kind otherwise due to Optionee from the
Company.
6. Adjustments. In the event of any merger, reorganization, consolidation,
recapitalization, consolidation, recapitalization, dividend (other than cash
dividend), stock split, reverse stock split, or other similar change in
corporate structure affecting the kind or number of issued shares of Common
Stock as a class, the Company shall proportionally adjust the number and kind of
Option Shares and the exercise price of the Option in order to prevent the
dilution or enlargement of the Optionee's proportionate interest in the Company
and his rights hereunder, provided that the number of Option Shares shall always
be a whole number.
7. Method of Exercise.
7.1. Notice to the Company. The Option shall be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice.
7.2. Delivery of Option Shares. The Company shall deliver a certificate for
the Option Shares to Optionee as soon as practicable after payment therefor.
7.3. Payment of Purchase Price.
7.3.1. Cash Payment. Optionee shall make cash payments by wire transfer,
certified or bank check or personal check, in each case payable to the order of
the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof.
7.3.2. Cashless Payment. The Company, in its sole discretion, may allow
Optionee to use Common Stock of the Company owned by him (or to surrender a
portion of this Option) to pay the purchase price for the Option Shares (and any
required withholding taxes) by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the Company,
free of any liens or encumbrances. Shares of
2
<PAGE>
Common Stock used for this purpose shall be valued at the Fair Market Value, as
defined below. The value of any Option surrendered shall equal the difference
between the Exercise Price and the Fair Market Value on the date of surrender
multiplied by the number of Option Shares underlying the portion of the Option
surrendered.
7.3.3. Fair Market Value. "Fair Market Value," unless otherwise required by
any applicable provision of the Internal Revenue Code of 1986, as amended, or
any regulations issued thereunder, means, as of any given date: (i) if the
Common Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on the last trading
day preceding the date of grant of an award hereunder, as reported by the
exchange or Nasdaq, as the case may be; (ii) if the Common Stock is not listed
on a national securities exchange or quoted on the Nasdaq National Market or
Nasdaq SmallCap Market, but is traded in the over-the-counter market, the
closing bid price for the Common Stock on the last trading day preceding the
date of grant of an award hereunder for which such quotations are reported by
the OTC Bulletin Board or the National Quotation Bureau, Incorporated or similar
publisher of such quotations; and (iii) if the Fair Market Value of the Common
Stock cannot be determined pursuant to clause (i) or (ii) above, such price as
the Company shall determine, in good faith.
8. Nonassignability. The Option shall not be assignable or transferable,
without the consent of the Company, except by will or by the laws of descent and
distribution in the event of the death of Optionee. No transfer of the Option by
Optionee by will or by the laws of descent and distribution shall be effective
to bind the Company unless the Company shall have been furnished with written
notice thereof and a copy of the will and/or such other evidence as the Company
may deem necessary to establish the validity of the transfer and the acceptance
by the transferee or transferees of the terms and conditions of the Option.
9. Company Representations. The Company hereby represents and warrants to
Optionee that:
(i) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the
transactions contemplated hereunder; and
3
<PAGE>
(ii) the Option Shares, when issued and delivered by the Company to
Optionee in accordance with the terms and conditions hereof, will
be duly and validly issued and fully paid and non-assessable.
10. Optionee Representations. Optionee hereby represents and warrants to
the Company that
(i) he is acquiring the Option and shall acquire the Option Shares
for his own account and not with a view towards the distribution
thereof;
(ii) he has received a copy of all reports and documents required to
be filed by the Company with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 within
the last 24 months and all reports issued by the Company to its
stockholders;
(iii)he understands that he must bear the economic risk of the invest
ment in the Option Shares, which cannot be sold by him unless
they are registered under the Securities Act of 1933 (the "1933
Act") or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Option Shares
for sale under the 1933 Act;
(iv) he has had both the opportunity to ask questions and receive
answers from the officers and directors of the Company and all
persons acting on its behalf concerning the terms and conditions
of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess
such infor mation or can acquire it without unreasonable effort
or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933
Act or an exemption therefrom as provided herein; and (vi)
the certificates evidencing the Option Shares shall bear the
following legends:
4
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of April 28, 1995, a copy of which is on file with
the Company, and may not be transferred, pledged or
disposed of except in accordance with the terms and
conditions thereof."
(vii)he agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him
except in accordance with Company's policy, if any,
regarding the sale and disposition of securities owned by
employees and/or directors of the Company.
11. Restriction on Transfer of Option Shares.
(a) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the 1933 Act, or
in the event that they are not so registered, unless (i) an exemption from the
1933 Act registration requirements is available thereunder, and (ii) Optionee
has furnished the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
(b) Anything in this Agreement to the contrary notwithstanding, Optionee
hereby agrees that, if he is, or at any time hereinafter becomes, an employee or
director of the Company or any subsidiary thereof, he shall not sell, transfer
by any means or otherwise dispose of the Option Shares acquired by him except in
accordance with Company's policy, if any, regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
12. Miscellaneous.
12.1. Notices. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier to the parties at their
respective addresses set forth herein, or to such other
5
<PAGE>
address as either shall have specified by notice in writing to the other. Notice
shall be deemed duly given hereunder when delivered or mailed as provided
herein.
12.2. Optionee and Stockholder Rights. Optionee shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option. If Optionee is, or hereinafter
becomes, an employee or director of the Company or any subsidiary thereof,
nothing contained in this Agreement shall be deemed to confer upon Optionee any
right to continued employment with, or a continued directorship position with,
the Company or any subsidiary thereof, nor shall it interfere in any way with
the right of the Company to terminate Optionee in accordance with the provisions
regarding such termination set forth in Optionee's written employment agreement
with the Company, or if there exists no such agreement, to terminate Optionee at
will, and/or terminate Optionee's directorship in accordance with the Company's
Certificate of Incorporation and By-laws and/or the laws of the State of
Delaware, as the case may be.
12.3. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
12.4. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. This Agreement
may not be amended except by writing executed by Optionee and the Company.
12.5. Binding Effect; Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and, to the extent not prohibited
herein, their respective heirs, successors, assigns and representatives. Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto and as provided above, their respective heirs,
successors, assigns and representatives any rights, remedies, obligations or
liabilities.
12.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without regard to choice of
law provisions).
6
<PAGE>
12.7. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 342 Madison Avenue
New York, New York 10173
By: /s/ Shelly Finkel
- ---------------------------
OPTIONEE:
Address:______________________________
/s/ John Silverman
- -------------------------------
JOHN SILVERMAN
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
Global Telecommunication Solutions, Inc.
342 Madison Avenue
New York, New York 10173
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
_______ __, 199_ with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to
the order of "Global Telecommunication Solutions, Inc." in
the sum of $_________;
|_| confirmation of wire transfer in the amount of
$_____________; and/or
|_| with the consent of the Company, a certificate for _________
shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a Fair Market Value (as
such term is defined in Section 7.3.3 of the Stock Option
Agreement) of $_________.
|_| with the consent of the Company, by surrender of a portion
of my Option having a value of $_____________ as calculated
in accordance with Section 7.3.2 of the Stock Option
Agreement.
I hereby represent and warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the Option
Shares for my own account, for investment, and not with a
view towards the distribution thereof;
(ii) I have received a copy of all reports and documents required
to be filed by the Company with the Commission pursuant to
the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii)I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933
(the "1933 Act") or an exemption therefrom is available
thereunder and that the Company is under no obli gation to
register the Option Shares for sale under the 1933 Act;
(iv) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby
except in accordance with Company's policy, if any,
regarding the sale and disposition of securities owned by
employees and/or directors of the Company;
1
<PAGE>
(v) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting
on its behalf concerning the terms and conditions of the
offer made hereunder and to obtain any additional
information to the extent the Company possesses or may
possess such information or can acquire it without
unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii)
above;
(vi) I am aware that the Company shall place stop transfer orders
with its transfer agent against the transfer of the Option
Shares in the absence of registration under the 1933 Act or
an exemption therefrom as provided herein; and
(vii)the certificates evidencing the Option Shares shall bear
the following legends:
"The shares represented by this certificate
have been acquired for investment and have
not been registered under the Securities Act
of 1933. The shares may not be sold or trans
ferred in the absence of such registration
or an exemption therefrom under said Act."
"The shares represented by this certificate
have been acquired pursuant to a Stock
Option Agreement, dated as of April 28,
1995, a copy of which is on file with the
Company, and may not be transferred, pledged
or disposed of except in accordance with the
terms and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ ----------------------------------------
(Signature) (Address)
- ------------------------------ ----------------------------------------
(Print Name)
----------------------------------------
(Social Security Number)
<PAGE>
EXHIBIT 4.7
STOCK OPTION AGREEMENT
AGREEMENT, dated as of February 29, 1996, between GLOBAL TELECOMMUNICATION
SOLUTIONS, INC., a Delaware corporation ("Company"), and DAVID TOBIN (the
"Employee" or "Grantee").
WHEREAS, on January 15, 1996, the Board of Directors authorized the
employment of the Employee pursuant to the terms of an Employment Agreement
dated as of February 29, 1996, and the grant to the Employee of an option to
purchase an aggregate of 50,000 of the authorized but unissued or treasury
shares of the Common Stock of the Company, $.01 par value ("Common Stock"), on
the terms and conditions set forth in this Agreement; and
WHEREAS, the Employee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Employee the right and option to
purchase all or any part of an aggregate of 50,000 shares of the Common Stock on
the terms and conditions set forth herein ("Option"). Said Option is a
non-qualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended, and is not granted under any plan,
including the Company's 1994 Performance Equity Plan ("Plan").
Certain terms used herein, however, are defined under the Plan.
2. The purchase price of each share of Common Stock subject to the Option
("Option Shares") shall be $6.125.
3. (a) This Option is exercisable, subject to the terms and conditions of
this Agreement, as follows: (i) options to purchase 33-1/3% of the Option Shares
shall be exercisable on or after February 28, 1997; (ii) options to purchase an
additional 33-1/3% of the Option Shares shall be exercisable on and after
February 28, 1998, and (iii) options to purchase
<PAGE>
the remaining 33-1/3% of the options shares shall be exercisable on and after
February 28, 1999. After a portion of the options become exercisable, it shall
remain exercisable, except as otherwise provided herein, for a period of five
years from the date of vesting ("Exercise Period"). The Option may be exercised,
except as provided in subparagraph (b), below, only if the Employee at the time
of exercise is employed by the Company or a wholly-owned subsidiary thereof and
shall have been so employed continuously since the date of this Agreement.
(b) If the Employee's employment with the Company terminates for any reason
prior to the time that the Option has been fully exercised, the portion of the
Option not yet exercisable on the date of termination of employment and the
portion of the Option which is exercisable on the date of termination of
employment shall immediately expire; provided, however, that (i) if the
Employee's employment is terminated by reason of the Employee's Disability (as
such term is defined under the Plan), the Option shall become fully vested and
exercisable and may be exercised by the Employee for a period of one year from
the date of such termination or until the expiration of the Exercise Period,
whichever is shorter; (ii) in the event of the death of the Employee while in
the employment of the Company, the Option shall become fully vested and
exercisable by the legal representative of the estate or by the legatee of the
Employee under the will of the employee for a period of one year from the date
of such death or until the expiration of the Exercise Period, whichever is
shorter; and (iii) in the event the Employee is terminated without cause or due
to Normal Retirement (as such term is defined under the Plan), then the portion
of the Option that has vested by the date of such termination of employment may
be exercised for a period of one year from the date of such termination of
employment or until the expiration of the Exercise Period, whichever is shorter.
(c) The Option shall not be assignable or transferable except in the event
of the death of the Employee, by will or by the laws of descent and
distribution. No transfer of the Option by the Employee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and such other evidence as the Company may deem necessary to establish the
validity of the transfer and the acceptance by the transferee or transferees of
the terms and conditions of the Option.
2
<PAGE>
4. The Employee shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issued after the due
exercise of the Option.
5. In the event of a reorganization, recapitalization, reclassification,
stock split or exchange, stock dividend, combination of shares, or any other
similar change in the Common Stock of the Company as a whole, the Board of
Directors of the Company shall make such equitable, proportionate adjustments,
if any, as it deems appropriate in the number and kind of shares covered by the
Option and in the option price thereunder, in order to preserve the Employee's
proportionate interest in the Company and to maintain the aggregate option
price; provided, however, that upon the dissolution or liquidation of the
Company, or upon any merger, consolidation or other form of reorganization, or
upon the sale of all or substantially all of the Company's assets, the Option
may be terminated by the Company or its successor and be of no further effect.
6. The Company hereby represents and warrants to the Employee that the
Option Shares, when issued and delivered by the Company to the Employee in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
7. The Employee hereby represents and warrants to the Company that he is
acquiring the Option and shall acquire the Option Shares for his own account and
not with a view to the distribution thereof.
8. Anything in this Agreement to the contrary notwithstanding, the Employee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the Securities
Act of 1933 ("Act"), or in the event that they are not so registered, unless (a)
an exemption from the Act is available thereunder, and (b) the Employee has
furnished the Company with notice of such proposed transfer and the Company's
legal counsel, in its reasonable opinion, shall deem such opposed transfer to be
so exempt.
3
<PAGE>
9. The Company hereby grants to Employee the right to have the Option
Shares registered on any registration statement on Form S-8 or any amendment
thereto filed by the Company, during the period in which Employee is employed by
the Company or by any subsidiary thereof. Notwithstanding the foregoing, the
Company shall have no obligation hereunder in connection with any registration
statement or amendment thereto unless the Employee provides to the Company
information with respect to his ownership of Option Shares, manner of proposed
disposition and such other matters as the Company shall reasonably request for
disclosure in the registration statement or any amendment thereto.
10. In the event of a "Change in Control" of the Company, as defined in the
Plan, then the option vesting periods hereunder shall be accelerated, the Option
will immediately and entirely vest, and the Employee will have the right to
immediately purchase all Option Shares on the terms set forth in this Agreement.
11. The Employee hereby acknowledges that:
(a) All reports and documents required to be filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 within the last 12 months have been made available to the Employee for his
inspection.
(b) If he exercises the Option, he must bear the economic risk of the
investment in the Option Shares for an indefinite period of time because the
Option Shares will not have been registered under the Act and cannot be sold by
him unless they are registered under the Act or an exemption therefrom is
available thereunder.
(c) In his position with the Company, he has had both the opportunity to
ask questions of and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder and to obtain any additional information to the
extent the Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to subparagraph (a) above.
4
<PAGE>
(d) The Company shall place stop transfer orders with its transfer agent
against the transfer of the Option Shares in the absence of registration under
the Act or an exemption therefrom.
(e) The certificates evidencing the Option Shares shall bear the following
legends:
"The Shares represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or transferred
in the absence of such registration or an exemption therefrom
under said Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated as of
February 29, 1996, a copy of which is on file with the Company,
and may not be transferred, pledged or disposed or except in
accordance with the terms and conditions thereof."
12. Subject to the terms and conditions of the Agreement, the Option may be
exercised by written notice to the Company at its principal place of business.
Such notice shall state the election to exercise the Option and the number of
Option Shares in respect to which it is being exercised, shall contain a
representation and agreement by the person or persons so exercising the Option
that the Option Shares are being purchased for investment and not with a view to
the distribution or resale thereof, and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of the Option Shares. Payment of the purchase price shall be
made in cash or by check, bank draft or money order payable to the order of the
Company or, with the Company's consent, by using Common Stock of the Company or
another means of "cashless exercise" approved by the Company. The Company shall
issue a certificate or certificates evidencing the Option Shares as soon as
practicable after the notice and payment is received. The certificate or
certificates evidencing the Option Shares shall be registered in the name of the
person or persons so exercising the Option.
5
<PAGE>
13. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or mailed, as the case may be.
14. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
15. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
16. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors, assigns and representatives. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto and
as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first written above.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 40 Elmont Road
Elmont, New York 11003
By: /s/ Shelly Finkel
- --------------------------------
OPTIONEE:
Address: 507 Baird Road
Merion, PA 19066
/s/ David Tobin
- -------------------------------
DAVID TOBIN
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
Global Telecommunication Solutions, Inc.
40 Elmont Road
Elmont, New York 11003
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
February 29, 1996 with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to
the order of "Global Telecommunication Solutions, Inc." in
the sum of $_________;
|_| confirmation of wire transfer in the amount of
$_____________; and/or
|_| with the consent of the Company, a certificate for _________
shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a market value (based on
the last sale price of a share of Common Stock on the last
complete trading day prior to surrender) of $---------.
|_| with the consent of the Company, by surrender of a portion
of my Option having a value of $_____________ (based on the
last sale price of a share of Common Stock on the last
complete trading day prior to surrender).
8
<PAGE>
I hereby represent and warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the Option
Shares for my own account, for investment, and not with a
view towards the distribution thereof;
(ii) I have received a copy of all reports and documents required
to be filed by the Company with the Commission pursuant to
the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii)I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933
(the "1933 Act") or an exemption therefrom is available
thereunder and that the Company is under no obligation to
register the Option Shares for sale under the 1933 Act;
(iv) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby
except in accordance with Company's policy, if any,
regarding the sale and disposition of securities owned by
employees and/or directors of the Company;
(v) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting
on its behalf concerning the terms and conditions of the
offer made hereunder and to obtain any additional
information to the extent the Company possesses or may
possess such information or can acquire it without
unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii)
above;
(vi) I am aware that the Company shall place stop transfer orders
with its transfer agent against the transfer of the Option
Shares in the absence of registration under the 1933 Act or
an exemption therefrom as provided herein; and
(vii)the certificates evidencing the Option Shares shall bear
the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. The shares may not be sold or transferred
in the absence of such registration or an exemption therefrom
under said Act."
"The shares represented by this certificate have been acquired
pursuant to a Stock Option
9
<PAGE>
Agreement, dated as of February 29, 1996, a copy of which is
on file with the Company, and may not be transferred, pledged or
disposed of except in accordance with the terms and conditions
thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
----------------------------------------
- ----------------------------- ----------------------------------------
(Signature) (Address)
- -----------------------------
(Print Name)
-----------------------------
(Social Security Number)
Date:_____________________
10
<PAGE>
EXHIBIT 4.8
STOCK OPTION AGREEMENT
AGREEMENT, dated as of February 29, 1996, between GLOBAL TELECOMMUNICATION
SOLUTIONS, INC., a Delaware corporation ("Company"), and GARY WASSERSON (the
"Employee" or "Grantee").
WHEREAS, on January 15, 1996, the Board of Directors authorized the
employment of the Employee pursuant to the terms of an Employment Agreement
dated as of February 29, 1996, and the grant to the Employee of an option to
purchase an aggregate of 125,000 of the authorized but unissued or treasury
shares of the Common Stock of the Company, $.01 par value ("Common Stock"), on
the terms and conditions set forth in this Agreement; and
WHEREAS, the Employee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Employee the right and option to
purchase all or any part of an aggregate of 125,000 shares of the Common Stock
on the terms and conditions set forth herein ("Option"). Said Option is a
non-qualified stock option not intended to qualify under any section of the
Internal Revenue Code of 1986, as amended, and is not granted under any plan,
including the Company's 1994 Performance Equity Plan ("Plan").
Certain terms used herein, however, are defined under the Plan.
2. The purchase price of each share of Common Stock subject to the Option
("Option Shares") shall be $6.125.
3. (a) This Option is exercisable, subject to the terms and conditions of
this Agreement, as follows: (i) options to purchase 33-1/3% of the Option Shares
shall be exercisable on or after February 29, 1997; (ii) options to purchase an
additional 33-1/3% of the
<PAGE>
Option Shares shall be exercisable on and after February 28, 1998, and (iii)
options to purchase the remaining 33-1/3% of the options shares shall be
exercisable on and after February 28, 1999. After a portion of the options
become exercisable, it shall remain exercisable, except as otherwise provided
herein, for a period of five years from the date of vesting ("Exercise Period").
The Option may be exercised, except as provided in subparagraph (b), below, only
if the Employee at the time of exercise is employed by the Company or a
wholly-owned subsidiary thereof and shall have been so employed continuously
since the date of this Agreement.
(b) If the Employee's employment with the Company terminates for any reason
prior to the time that the Option has been fully exercised, the portion of the
Option not yet exercisable on the date of termination of employment and the
portion of the Option which is exercisable on the date of termination of
employment shall immediately expire; provided, however, that (i) if the
Employee's employment is terminated by reason of the Employee's Disability (as
such term is defined under the Plan), the Option shall become fully vested and
exercisable and may be exercised by the Employee for a period of one year from
the date of such termination or until the expiration of the Exercise Period,
whichever is shorter; (ii) in the event of the death of the Employee while in
the employment of the Company, the Option shall become fully vested and
exercisable by the legal representative of the estate or by the legatee of the
Employee under the will of the employee for a period of one year from the date
of such death or until the expiration of the Exercise Period, whichever is
shorter; and (iii) in the event the Employee is terminated without cause or due
to Normal Retirement (as such term is defined under the Plan), then the portion
of the Option that has vested by the date of such termination of employment may
be exercised for a period of one year from the date of such termination of
employment or until the expiration of the Exercise Period, whichever is shorter.
(c) The Option shall not be assignable or transferable except in the event
of the death of the Employee, by will or by the laws of descent and
distribution. No transfer of the Option by the Employee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and such other evidence as the Company may deem necessary
2
<PAGE>
to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the Option.
4. The Employee shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issued after the due
exercise of the Option.
5. In the event of a reorganization, recapitalization, reclassification,
stock split or exchange, stock dividend, combination of shares, or any other
similar change in the Common Stock of the Company as a whole, the Board of
Directors of the Company shall make such equitable, proportionate adjustments,
if any, as it deems appropriate in the number and kind of shares covered by the
Option and in the option price thereunder, in order to preserve the Employee's
proportionate interest in the Company and to maintain the aggregate option
price; provided, however, that upon the dissolution or liquidation of the
Company, or upon any merger, consolidation or other form of reorganization, or
upon the sale of all or substantially all of the Company's assets, the Option
may be terminated by the Company or its successor and be of no further effect.
6. The Company hereby represents and warrants to the Employee that the
Option Shares, when issued and delivered by the Company to the Employee in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
7. The Employee hereby represents and warrants to the Company that he is
acquiring the Option and shall acquire the Option Shares for his own account and
not with a view to the distribution thereof.
8. Anything in this Agreement to the contrary notwithstanding, the Employee
hereby agrees that he shall not sell, transfer by any means or otherwise dispose
of the Option Shares acquired by him without registration under the Securities
Act of 1933 ("Act"), or in the event that they are not so registered, unless (a)
an exemption from the Act is available thereunder, and (b) the Employee has
furnished the Company with notice of such proposed
3
<PAGE>
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such opposed transfer to be so exempt.
9. The Company hereby grants to Employee the right to have the Option
Shares registered on any registration statement on Form S-8 or any amendment
thereto filed by the Company, during the period in which Employee is employed by
the Company or by any subsidiary thereof. Notwithstanding the foregoing, the
Company shall have no obligation hereunder in connection with any registration
statement or amendment thereto unless the Employee provides to the Company
information with respect to his ownership of Option Shares, manner of proposed
disposition and such other matters as the Company shall reasonably request for
disclosure in the registration statement or any amendment thereto.
10. In the event of a "Change in Control" of the Company, as defined in the
Plan, then the option vesting periods hereunder shall be accelerated, the Option
will immediately and entirely vest, and the Employee will have the right to
immediately purchase all Option Shares on the terms set forth in this Agreement.
11. The Employee hereby acknowledges that:
(a) All reports and documents required to be filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 within the last 12 months have been made available to the Employee for his
inspection.
(b) If he exercises the Option, he must bear the economic risk of the
investment in the Option Shares for an indefinite period of time because the
Option Shares will not have been registered under the Act and cannot be sold by
him unless they are registered under the Act or an exemption therefrom is
available thereunder.
(c) In his position with the Company, he has had both the opportunity to
ask questions of and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder
4
<PAGE>
and to obtain any additional information to the extent the Company possesses or
may possess such information or can acquire it without unreasonable effort or
expense necessary to verify the accuracy of the information obtained pursuant to
subparagraph (a) above.
(d) The Company shall place stop transfer orders with its transfer agent
against the transfer of the Option Shares in the absence of registration under
the Act or an exemption therefrom.
(e) The certificates evidencing the Option Shares shall bear the following
legends:
"The Shares represented by this certificate have been acquired
for investment and have not been registered under the Securities Act
of 1933. The shares may not be sold or transferred in the absence of
such registration or an exemption therefrom under said Act." "The
shares represented by this certificate have been acquired pursuant to
a Stock Option Agreement, dated as of February 29, 1996, a copy of
which is on file with the Company, and may not be transferred, pledged
or disposed or except in accordance with the terms and conditions
thereof."
12. Subject to the terms and conditions of the Agreement, the Option may be
exercised by written notice to the Company at its principal place of business.
Such notice shall state the election to exercise the Option and the number of
Option Shares in respect to which it is being exercised, shall contain a
representation and agreement by the person or persons so exercising the Option
that the Option Shares are being purchased for investment and not with a view to
the distribution or resale thereof, and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of the Option Shares. Payment of the purchase price shall be
made in cash or by check, bank draft or money order payable to the order of the
Company or, with the Company's consent, by using Common Stock of the Company or
another means of "cashless exercise" approved by the Company. The Company shall
issue a certificate or certificates evidencing the Option Shares as soon as
practicable after the notice and payment is received. The certificate or
certificates
5
<PAGE>
evidencing the Option Shares shall be registered in the name of the person or
persons so exercising the Option.
13. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall either be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or mailed, as the case may be.
14. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
15. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
16. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and to the extent not prohibited herein, their respective heirs,
successors, assigns and representatives. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto and
as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first written above.
GLOBAL TELECOMMUNICATION
SOLUTIONS, INC.
Address: 40 Elmont Road
Elmont, New York 11003
By: /s/ Shelly Finkel
- ---------------------------
OPTIONEE:
Address: 534 Righters Mill Road
Penn Valley, PA 19072
/s/ Gary Wasserson
- -------------------------------
GARY WASSERSON
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
Global Telecommunication Solutions, Inc.
40 Elmont Road
Elmont, New York 11003
Attention: The Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
February 29, 1996 with Global Telecommunication Solutions, Inc. (the "Company"),
I hereby irrevocably elect to exercise the right to purchase _________ shares of
the Company's common stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to the
order of "Global Telecommunication Solutions, Inc." in the sum of
$_________;
|_| confirmation of wire transfer in the amount of $_____________;
and/or
|_| with the consent of the Company, a certificate for
_________ shares of the Company's Common Stock, free
and clear of any encumbrances, duly endorsed, having a
market value (based on the last sale price of a share
of Common Stock on the last complete trading day prior
to surrender) of $---------.
|_| with the consent of the Company, by surrender of a
portion of my Option having a value of $_____________
(based on the last sale price of a share of Common
Stock on the last complete trading day prior to
surrender).
8
<PAGE>
I hereby represent and warrant to, and agree with, the Company that:
(i) I am acquiring the Option and shall acquire the Option Shares
for my own account, for investment, and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and documents required
to be filed by the Company with the Commission pursuant to the
Exchange Act within the last 24 months and all reports issued by the
Company to its stockholders;
(iii) I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me unless
they are registered under the Securities Act of 1933 (the "1933 Act")
or an exemption therefrom is available thereunder and that the Company
is under no obligation to register the Option Shares for sale under
the 1933 Act;
(iv) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and
disposition of securities owned by employees and/or directors of the
Company;
(v) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the officers and
directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
(vi) I am aware that the Company shall place stop transfer orders
with its transfer agent against the transfer of the Option Shares in
the absence of registration under the 1933 Act or an exemption
therefrom as provided herein; and
(vii) the certificates evidencing the Option Shares shall bear
the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933. The shares may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act." "The shares represented
by this certificate have been acquired pursuant to a Stock
Option
9
<PAGE>
Agreement, dated as of February 29, 1996, a copy of
which is on file with the Company, and may not be
transferred, pledged or disposed of except in accordance
with the terms and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
----------------------------------------
- ----------------------------- ----------------------------------------
(Signature) (Address)
- -----------------------------
(Print Name)
----------------------------------------
(Social Security Number)
Date:_______________________
<PAGE>
EXHIBIT 4.9
STOCK OPTION AGREEMENT
This Stock Option Agreement dated as of April 1, 1994, (the
"Agreement") is made between Global Link Teleco Corporation, a Delaware
corporation having its principal place of business at 5697 Rising Sun Avenue,
Philadelphia, Pennsylvania 19120 (the "Company") and Joel Hornstein, residing at
____________________ ____________________________ (the "Optionee").
W I T N E S S E T H:
In accordance with Section 5(c) of the Employment Agreement dated as of
April 1, 1994, between the Company and the Optionee, the Company has agreed to
grant the Optionee an option to purchase shares of the Company's common stock,
par value $.0001 per share (the "Common Stock"), on the terms and conditions
contained herein.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to the Optionee,
subject to the terms and conditions herein set forth, the right and option (the
"Option") to purchase from the Company all or any part of an aggregate of 50,000
shares of Common Stock on the terms and conditions contained herein. The shares
of Common Stock into which the Option may be exercised shall be referred to
hereinafter as the "Shares". The Option granted hereby shall not be treated as
an "incentive stock option" as defined in Section 422 of the Internal Revenue
Code of
-1-
<PAGE>
1986, as amended (the "Code"), or any successor or similar provision and
accordingly, the Optionee may realize ordinary income for federal income tax
purposes upon an exercise of the Option.
2. Option Price and Payment Method. The purchase price of the Shares
payable upon any full or partial exercise of the Option shall be $.10 per share,
subject to adjustment as hereinafter provided.
3. Term; Exercise. Except to the extent otherwise provided in Paragraphs 4
and 8 hereof, the Option cannot be exercised after the close of business on
April 1, 1999 (the "Termination Date"). The Option may be exercised at any time
or from time to time prior to the Termination Date as to any part or all of the
Shares in accordance with the following terms and conditions:
(a) Except as otherwise provided in Paragraph 8 of this
Agreement, the Option shall be exercisable in full
commencing on the date hereof.
(b) The Option may not be exercised with respect to less than
one hundred Shares (or the remaining Shares then purchasable
under the Option, if less than one hundred Shares) or for
any fractional Shares.
4. Termination of Employment. If the Optionee's employment by the Company
or any affiliate of the Company shall terminate for any reason, other than
death, disability or cause, the Option shall be exercisable only as to those
Shares which
-2-
<PAGE>
were immediately purchasable by the Optionee on such date on which the
Optionee's employment terminated, in which case, notwithstanding any other
provision in this Agreement, the Option shall expire on the earlier of (i) the
Termination Date or (ii) a date three months after the date that the Optionee's
employment terminates, or, if the employment terminates because of the
Optionee's death or disability within the meaning of Section 105(d)(4) of the
Code, a date one year after the date the employment terminates. If the Optionee
is discharged for cause, all rights under the Option shall expire immediately
upon termination. From the termination of the employment until the expiration of
the Option on the date specified by the preceding sentences, the Option may be
exercised by the Optionee, his legal representative, his executor or
administrator, or his legatees or distributees only to the extent and for the
number of Shares for which the Option could have been exercised on the date
employment terminated. The Optionee's transfer, without interruption in service,
between the Company and any of its affiliates during the term of the Option
shall not be considered a termination of employment for purposes hereof. The
Optionee's rights shall not be affected by any changes in duties or position
after the date the Option is granted, so long as the Optionee remains
continuously employed by the Company or any of its affiliates.
5. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by delivering written notice to the
Company at its then principal office. Such notice shall state the election to
exercise the
-3-
<PAGE>
Option, the number of Shares in respect to which it is being exercised, and the
method of payment to be utilized in connection with such exercise. Such notice
shall be signed by the person or persons so exercising the Option. The purchase
price for the Shares for which the Option is being exercised shall be paid, at
the option of the Optionee by delivering with the notice of exercise cash or a
certified check, payable to the Company, or a combination of cash or certified
check for the full amount of the purchase price for the Shares for which the
option is being exercised. If the Option is exercised by a person other than the
Optionee, the notice of exercise shall be accompanied by the appropriate proof,
in form and substance satisfactory to the Company, of such person's right to
exercise the Option. Certificates for Shares for which the Option has been
exercised shall not be issued until the Company receives the full purchase price
for such Shares. Shares and the certificates therefor shall be issued in the
name of the person who is entitled at the time to exercise the Option, or, if
such person is the Employee and he so elects, in the name of the Employee and
another person as joint tenants with right of survivorship. Upon the issuance of
Shares in accordance with this Agreement, such Shares shall be validly issued,
fully paid and non-assessable.
6. No Transfer of Option. This option is not transferable by the Optionee
except by will or the then applicable laws of descent and distribution and may
exercised during the lifetime of the Optionee only by the Optionee. Subject to
the foregoing, this Agreement shall be binding upon
-4-
<PAGE>
and inure to the benefit of the parties hereto and their respective successors
and assigns, and no other person shall have any right, benefit or obligation
hereunder.
7. Other Limitations. Notwithstanding any other provision of this
Agreement, this Option shall not be exercisable if the exercise would involve a
violation of any applicable federal or state securities law, and the Company
hereby agrees to make reasonable efforts to comply with all such laws. 8.
Adjustments. Upon the occurrence of a change in the corporate structure of the
Company, including but not limited to any merger, reorganization,
recapitalization, payment of a non-cash dividend or stock slit, which affects
the kind or number of issued shares of Common Stock, the Board of Directors
shall make such adjustments in the number or kind of shares of Common Stock
covered by this option as the Board of Directors may in good faith determine so
as to prevent the dilution or enlargement of the Optionee's proportionate
interest in the Company and his rights hereunder. In the event of a merger of
the Company with another entity which results in the conversion of the Common
Stock into the right to receive cash or securities of another entity, the right
to receive Common Stock under this Option shall be converted, upon the
effectiveness of any such merger, into the right to receive the amount of cash
or the kind and number of securities or any combination thereof, that the
Optionee would have received in the merger had the Optionee exercised this
Option immediately prior to the effectiveness of such merger.
-5-
<PAGE>
8. Withholding. If the Company shall be required to withhold any federal,
state, local or foreign tax in connection with an exercise of this Option, it
shall be a condition to the exercise that the Optionee pay or make provision
satisfactory to the Company for payment of any such taxes.
9. Investment Representation. The Board of Directors may require the
Optionee to furnish to the Company, prior to the issuance of any shares upon the
exercise of all of any part of this option, an agreement (in such form as the
Board of Directors may specify or substantially in the form attached hereto as
Exhibit A) in which the Optionee represents that the Shares are being acquired
for investment and not for resale or with a view to distribution thereof.
10. No Rights of Stockholders or to Continued Employment. The Optionee
shall not have any of the rights of a stockholder of Common Stock with respect
to the Shares until such Shares have been issued after due exercise of the
Option. Nothing contained in this Option shall limit in any way whatsoever any
right that the Company or an affiliate may otherwise have to terminate the
employment of the Optionee at any time.
11. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
-6-
<PAGE>
12. Entire Agreement. This Agreement, together with all schedules hereto,
constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties hereto. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
13. Notices. All notices and other communications to be given under or
pursuant to this Agreement shall be in writing and shall be sent by first class
certified or registered mail, postage prepaid, or by nationally recognized
overnight courier service, to the address of the party to whom such
communication is being sent at the address set forth in the first sentence of
this Agreement. Any party hereto may change the address to which each such
notice or communication shall be sent by giving written notice it all of the
other parties hereto in accordance with this paragraph.
14. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its
provisions regarding conflict of laws.
16. Captions. The captions of the paragraphs of this Agreement are for the
purpose of convenience only, are not
-7-
<PAGE>
intended to be part of this Agreement and shall not be deemed to modify,
explain, enlarge or restrict any of its provisions.
17. Separability. If any clause or provision of this Agreement shall be
held invalid or unenforceable, in whole or in part, in any jurisdiction, such
invalidity or unenforceability shall attach only to such clause or provision, or
part thereof, and shall not in any manner affect any other clause or provision
in any jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first written above.
GLOBAL LINK TELECO CORPORATION
By:________________________
Name:
Title:
/s/ Joel Hornstein
-------------------------
Optionee
-8-
<PAGE>
EXHIBIT A
[EXERCISE DATE]
Global Link Teleco Corporation
5697 Rising Sun Avenue
Philadelphia, Pennsylvania 19120
Attn:
Ladies and Gentlemen:
I represent to Global Link Teleco Corporation (the "Company") that pursuant
to that Stock Option Agreement dated [____________], I am purchasing [________]
shares of the Company's common stock, par value $0.0001 per share ("Common
Stock") to be purchased by me solely for my own account and with no intention of
distributing or reselling said Common Stock or any part thereof, or interest
therein, in any transaction which would be in violation of the securities laws
of the United States of America or any state thereof, without prejudice,
however, to my right at all times to sell or otherwise dispose of all or any
part of said Common Stock under a registration under the Securities Act of 1933,
as amended ("Securities Act"), or under an exemption from such registration
available under the Securities Act.
If I desire to sell or otherwise dispose of all or any part of the Common
Stock under an exemption from registration under the Securities Act, I will
deliver to the Company an opinion (addressed to the Company) of counsel which
opinion shall be reasonably satisfactory in form and substance to the Company,
that such exemption is available.
Very truly yours,
[Name of Optionee]
<PAGE>
EXHIBIT 4.10
STOCK OPTION AGREEMENT
This Stock Option Agreement dated as of December 1, 1994, (the "Agreement")
is made between Global Link Teleco Corporation, a Delaware corporation having
its principal place of business at 5697 Rising Sun Avenue, Philadelphia,
Pennsylvania 19120 (the "Company") and David Tobin, residing at ____________
____________________________ (the "Optionee").
W I T N E S S E T H:
In accordance with Section 4(b) of the Employment Agreement dated as of
December 1, 1994, between the Company and the Optionee (the "Employment
Agreement"), the Company has agreed to grant the Optionee an option to purchase
shares of the Company's common stock, par value $.0001 per share (the "Common
Stock"), on the terms and conditions contained herein.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to the Optionee,
subject to the terms and conditions herein set forth, the right and option (the
"Option") to purchase from the Company all or any part of an aggregate of 50,000
shares of Common Stock on the terms and conditions contained herein. The shares
of Common Stock into which the Option may be exercised shall be referred to
hereinafter as the "Shares". The Option granted hereby shall not be treated as
an "incentive stock option" as defined in Section 422 of the Internal Revenue
Code of
-1-
<PAGE>
1986, as amended (the "Code"), or any successor or similar provision and
accordingly, the Optionee may realize ordinary income for federal income tax
purposes upon an exercise of the Option.
2. Option Price and Payment Method. The purchase price of the Shares
payable upon any full or partial exercise of the Option shall be $2.00 per
share, subject to adjustment as hereinafter provided.
3. Term; Exercise. Except to the extent otherwise provided in Paragraphs 4
and 8 hereof, the Option cannot be exercised after the close of business on
December 1, 1999 (the "Termination Date"). The Option may be exercised at any
time or from time to time prior to the Termination Date as to any part or all of
the Shares in accordance with the following terms and conditions:
(a) Except as otherwise provided in Paragraph 8 of this Agreement,
the Option shall be exercisable as follows:
(i) 30,000 shares are vested and immediately exercisable; and
(ii) 20,000 shares shall vest on January 1, 1996; provided
however, that all 50,000 shares shall vest immediately
upon a Change in
Control (as such term is defined in the Employment Agreement).
(b) The Option may not be exercised with respect to less than one
hundred Shares (or the
-2-
<PAGE>
remaining Shares then purchasable under the Option, if less
than one hundred Shares) or for any fractional Shares.
4. Termination of Employment. If the Optionee's employment by the Company
or any affiliate of the Company shall terminate for any reason, other than
death, disability or cause, the Option shall be exercisable only as to those
Shares which were immediately purchasable by the Optionee on such date on which
the Optionee's employment terminated, in which case, notwithstanding any other
provision in this Agreement, the Option shall expire on the earlier of (i) the
Termination Date or (ii) a date three months after the date that the Optionee's
employment terminates, or, if the employment terminates because of the
Optionee's death or disability within the meaning of Section 105(d)(4) of the
Code, a date one year after the date the employment terminates. If the Optionee
is discharged for cause, all rights under the Option shall expire immediately
upon termination. From the termination of the employment until the expiration of
the Option on the date specified by the preceding sentences, the Option may be
exercised by the Optionee, his legal representative, his executor or
administrator, or his legatees or distributees only to the extent and for the
number of Shares for which the Option could have been exercised on the date
employment terminated. The Optionee's transfer, without interruption in service,
between the Company and any of its affiliates during the term of the Option
shall not be considered a termination of employment for purposes hereof. The
Optionee's rights shall not
-3-
<PAGE>
be affected by any changes in duties or position after the date the Option is
granted, so long as the Optionee remains continuously employed by the Company or
any of its affiliates.
5. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by delivering written notice to the
Company at its then principal office. Such notice shall state the election to
exercise the Option, the number of Shares in respect to which it is being
exercised, and the method of payment to be utilized in connection with such
exercise. Such notice shall be signed by the person or persons so exercising the
Option. The purchase price for the Shares for which the Option is being
exercised shall be paid, at the option of the Optionee by delivering with the
notice of exercise cash or a certified check, payable to the Company, or a
combination of cash or certified check for the full amount of the purchase price
for the Shares for which the option is being exercised. If the Option is
exercised by a person other than the Optionee, the notice of exercise shall be
accompanied by the appropriate proof, in form and substance satisfactory to the
Company, of such person's right to exercise the Option. Certificates for Shares
for which the Option has been exercised shall not be issued until the Company
receives the full purchase price for such Shares. Shares and the certificates
therefor shall be issued in the name of the person who is entitled at the time
to exercise the Option, or, if such person is the Employee and he so elects, in
the name of the Employee and another person as joint tenants with right of
survivorship. Upon the issuance
-4-
<PAGE>
of Shares in accordance with this Agreement, such Shares shall be validly
issued, fully paid and non-assessable.
6. No Transfer of Option. This option is not transferable by the Optionee
except by will or the then applicable laws of descent and distribution and may
exercised during the lifetime of the Optionee only by the Optionee. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, and no other
person shall have any right, benefit or obligation hereunder.
7. Other Limitations. Notwithstanding any other provision of this
Agreement, this Option shall not be exercisable if the exercise would involve a
violation of any applicable federal or state securities law, and the Company
hereby agrees to make reasonable efforts to comply with all such laws.
8. Adjustments. Upon the occurrence of a change in the corporate structure
of the Company, including but not limited to any merger, reorganization,
recapitalization, payment of a non-cash dividend or stock slit, which affects
the kind or number of issued shares of Common Stock, the Board of Directors
shall make such adjustments in the number or kind of shares of Common Stock
covered by this option as the Board of Directors may in good faith determine so
as to prevent the dilution or enlargement of the Optionee's proportionate
interest in the Company and his rights hereunder. In the event of a merger of
the Company with another entity which results in the conversion of the Common
Stock into the right to receive cash or securities of another
-5-
<PAGE>
entity, the right to receive Common Stock under this Option shall be converted,
upon the effectiveness of any such merger, into the right to receive the amount
of cash or the kind and number of securities or any combination thereof, that
the Optionee would have received in the merger had the Optionee exercised this
Option immediately prior to the effectiveness of such merger.
9. Withholding. If the Company shall be required to withhold any federal,
state, local or foreign tax in connection with an exercise of this Option, it
shall be a condition to the exercise that the Optionee pay or make provision
satisfactory to the Company for payment of any such taxes.
10. Investment Representation. The Board of Directors may require the
Optionee to furnish to the Company, prior to the issuance of any shares upon the
exercise of all of any part of this option, an agreement (in such form as the
Board of Directors may specify or substantially in the form attached hereto as
Exhibit A) in which the Optionee represents that the Shares are being acquired
for investment and not for resale or with a view to distribution thereof.
11. No Rights of Stockholders or to Continued Employment. The Optionee
shall not have any of the rights of a stockholder of Common Stock with respect
to the Shares until such Shares have been issued after due exercise of the
Option. Nothing contained in this Option shall limit in any way whatsoever any
right that the Company or an affiliate may otherwise have to terminate the
employment of the Optionee at any time.
-6-
<PAGE>
12. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
13. Entire Agreement. This Agreement, together with all schedules hereto,
constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties hereto. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
14. Notices. All notices and other communications to be given under or
pursuant to this Agreement shall be in writing and shall be sent by first class
certified or registered mail, postage prepaid, or by nationally recognized
overnight courier service, to the address of the party to whom such
communication is being sent at the address set forth in the first sentence of
this Agreement. Any party hereto may change the address to which each such
notice or communication shall be sent by giving written notice it all of the
other parties hereto in accordance with this paragraph.
15. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall constitute one and the same instrument.
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<PAGE>
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its
provisions regarding conflict of laws.
17. Captions. The captions of the paragraphs of this Agreement are for the
purpose of convenience only, are not intended to be part of this Agreement and
shall not be deemed to modify, explain, enlarge or restrict any of its
provisions.
18. Separability. If any clause or provision of this Agreement shall be
held invalid or unenforceable, in whole or in part, in any jurisdiction, such
invalidity or unenforceability shall attach only to such clause or provision, or
part thereof, and shall not in any manner affect any other clause or provision
in any jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first written above.
GLOBAL LINK TELECO CORPORATION
By:________________________
Name:
Title:
David Tobin
-------------------------
Optionee
-8-
<PAGE>
EXHIBIT A
[EXERCISE DATE]
Global Link Teleco Corporation
5697 Rising Sun Avenue
Philadelphia, Pennsylvania 19120
Attn:
Ladies and Gentlemen:
I represent to Global Link Teleco Corporation (the "Company") that pursuant
to that Stock Option Agreement dated [____________], I am purchasing [________]
shares of the Company's common stock, par value $0.0001 per share ("Common
Stock") to be purchased by me solely for my own account and with no intention of
distributing or reselling said Common Stock or any part thereof, or interest
therein, in any transaction which would be in violation of the securities laws
of the United States of America or any state thereof, without prejudice,
however, to my right at all times to sell or otherwise dispose of all or any
part of said Common Stock under a registration under the Securities Act of 1933,
as amended ("Securities Act"), or under an exemption from such registration
available under the Securities Act.
If I desire to sell or otherwise dispose of all or any part of the Common
Stock under an exemption from registration under the Securities Act, I will
deliver to the Company an opinion (addressed to the Company) of counsel which
opinion shall be reasonably satisfactory in form and substance to the Company,
that such exemption is available.
Very truly yours,
[Name of Optionee]
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<PAGE>
EXHIBIT 4.11
STOCK OPTION AGREEMENT
This Stock Option Agreement dated as of July 24, 1995, (the
"Agreement") is made between Global Link Teleco Corporation, a Delaware
corporation having its principal place of business at 5697 Rising Sun Avenue,
Philadelphia, Pennsylvania 19120 (the "Company") and Mary C. Berger, residing at
___________________ ____________________________ (the "Optionee").
W I T N E S S E T H:
In accordance with Section 4(f) of the Employment Agreement
dated as of July 24, 1995, between the Company and the Optionee, the Company has
agreed to grant the Optionee an option to purchase shares of the Company's
common stock, par value $.0001 per share (the "Common Stock"), on the terms and
conditions contained herein.
NOW THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to
the Optionee, subject to the terms and conditions herein set forth, the right
and option (the "Option") to purchase from the Company all or any part of an
aggregate of 25,000 shares of Common Stock on the terms and conditions contained
herein. The shares of Common Stock into which the Option may be exercised shall
be referred to hereinafter as the "Shares". The Option granted hereby shall not
be treated as an "incentive stock option" as defined in Section 422 of the
Internal Revenue Code of
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<PAGE>
1986, as amended (the "Code"), or any successor or similar provision and
accordingly, the Optionee may realize ordinary income for federal income tax
purposes upon an exercise of the Option.
2. Option Price and Payment Method. The purchase
price of the Shares payable upon any full or partial exercise of
the Option shall be $2.00 per share, subject to adjustment as
hereinafter provided.
3. Term; Exercise. Except to the extent otherwise provided in
Paragraphs 4 and 8 hereof, the Option cannot be exercised after the close of
business on July 24, 2000 (the "Termination Date"). The Option may be exercised
at any time or from time to time prior to the Termination Date as to any part or
all of the Shares in accordance with the following terms and conditions:
(a) Except as otherwise provided in Paragraph 8 of
this Agreement, the Option shall be exercisable as follows:
(i) 8,333 shares are currently vested and immediately
exercisable;
(ii) 8,333 shares shall vest and become exercisable on the first
anniversary of this Agreement; and
(iii)8,334 shares shall vest and become exercisable on the
second anniversary of this Agreement.
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<PAGE>
(b) The Option may not be exercised with respect to less than
one hundred Shares (or the remaining Shares then purchasable
under the Option, if less than one hundred Shares) or for
any fractional Shares.
4. Termination of Employment. If the Optionee's employment by the Company
or any affiliate of the Company shall terminate for any reason, other than
death, disability or cause, the Option shall be exercisable only as to those
Shares which were immediately purchasable by the Optionee on such date on which
the Optionee's employment terminated, in which case, notwithstanding any other
provision in this Agreement, the Option shall expire on the earlier of (i) the
Termination Date or (ii) a date three months after the date that the Optionee's
employment terminates, or, if the employment terminates because of the
Optionee's death or disability within the meaning of Section 105(d)(4) of the
Code, a date one year after the date the employment terminates. If the Optionee
is discharged for cause, all rights under the Option shall expire immediately
upon termination. From the termination of the employment until the expiration of
the Option on the date specified by the preceding sentences, the Option may be
exercised by the Optionee, his legal representative, his executor or
administrator, or his legatees or distributees only to the extent and for the
number of Shares for which the Option could have been exercised on the date
employment terminated. The Optionee's transfer, without interruption in service,
between the Company and any of its affiliates during the
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<PAGE>
term of the Option shall not be considered a termination of employment for
purposes hereof. The Optionee's rights shall not be affected by any changes in
duties or position after the date the Option is granted, so long as the Optionee
remains continuously employed by the Company or any of its affiliates.
5. Method of Exercising Option. Subject to the terms and
conditions of this Agreement, the Option may be exercised by delivering written
notice to the Company at its then principal office. Such notice shall state the
election to exercise the Option, the number of Shares in respect to which it is
being exercised, and the method of payment to be utilized in connection with
such exercise. Such notice shall be signed by the person or persons so
exercising the Option. The purchase price for the Shares for which the Option is
being exercised shall be paid, at the option of the Optionee by delivering with
the notice of exercise cash or a certified check, payable to the Company, or a
combination of cash or certified check for the full amount of the purchase price
for the Shares for which the option is being exercised. If the Option is
exercised by a person other than the Optionee, the notice of exercise shall be
accompanied by the appropriate proof, in form and substance satisfactory to the
Company, of such person's right to exercise the Option. Certificates for Shares
for which the Option has been exercised shall not be issued until the Company
receives the full purchase price for such Shares. Shares and the certificates
therefor shall be issued in the name of the person who is entitled at the time
to exercise the Option, or, if such person is the Employee
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<PAGE>
and he so elects, in the name of the Employee and another person as joint
tenants with right of survivorship. Upon the issuance of Shares in accordance
with this Agreement, such Shares shall be validly issued, fully paid and
non-assessable.
6. No Transfer of Option. This option is not transferable by the Optionee
except by will or the then applicable laws of descent and distribution and may
exercised during the lifetime of the Optionee only by the Optionee. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, and no other
person shall have any right, benefit or obligation hereunder.
7. Other Limitations. Notwithstanding any other provision of this
Agreement, this Option shall not be exercisable if the exercise would involve a
violation of any applicable federal or state securities law, and the Company
hereby agrees to make reasonable efforts to comply with all such laws.
8. Adjustments. Upon the occurrence of a change in the corporate structure
of the Company, including but not limited to any merger, reorganization,
recapitalization, payment of a non-cash dividend or stock slit, which affects
the kind or number of issued shares of Common Stock, the Board of Directors
shall make such adjustments in the number or kind of shares of Common Stock
covered by this option as the Board of Directors may in good faith determine so
as to prevent the dilution or enlargement of the Optionee's proportionate
interest in the Company and his rights hereunder. In the event of a merger of
the Company with
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<PAGE>
another entity which results in the conversion of the Common Stock into the
right to receive cash or securities of another entity, the right to receive
Common Stock under this Option shall be converted, upon the effectiveness of any
such merger, into the right to receive the amount of cash or the kind and number
of securities or any combination thereof, that the Optionee would have received
in the merger had the Optionee exercised this Option immediately prior to the
effectiveness of such merger.
9. Withholding. If the Company shall be required to withhold any federal,
state, local or foreign tax in connection with an exercise of this Option, it
shall be a condition to the exercise that the Optionee pay or make provision
satisfactory to the Company for payment of any such taxes.
10. Investment Representation. The Board of Directors may require the
Optionee to furnish to the Company, prior to the issuance of any shares upon the
exercise of all of any part of this option, an agreement (in such form as the
Board of Directors may specify or substantially in the form attached hereto as
Exhibit A) in which the Optionee represents that the Shares are being acquired
for investment and not for resale or with a view to distribution thereof.
11. No Rights of Stockholders or to Continued Employment. The Optionee
shall not have any of the rights of a stockholder of Common Stock with respect
to the Shares until such Shares have been issued after due exercise of the
Option. Nothing contained in this Option shall limit in any way whatsoever any
right that the Company or an affiliate may
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<PAGE>
otherwise have to terminate the employment of the Optionee at any time.
12. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise ex- pressly provided.
13. Entire Agreement. This Agreement, together with all schedules hereto,
constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties hereto. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
14. Notices. All notices and other communications to be given under or
pursuant to this Agreement shall be in writing and shall be sent by first class
certified or registered mail, postage prepaid, or by nationally recognized
overnight courier service, to the address of the party to whom such
communication is being sent at the address set forth in the first sentence of
this Agreement. Any party hereto may change the address to which each such
notice or communication shall be sent by giving written notice it all of the
other parties hereto in accordance with this paragraph.
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<PAGE>
15. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall constitute one and the same instrument.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its
provisions regarding conflict of laws.
17. Captions. The captions of the paragraphs of this Agreement are for the
purpose of convenience only, are not intended to be part of this Agreement and
shall not be deemed to modify, explain, enlarge or restrict any of its
provisions.
18. Separability. If any clause or provision of this Agreement shall be
held invalid or unenforceable, in whole or in part, in any jurisdiction, such
invalidity or unenforceability shall attach only to such clause or provision, or
part thereof, and shall not in any manner affect any other clause or provision
in any jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first written above.
GLOBAL LINK TELECO CORPORATION
By:________________________
Name:
Title:
/s/ Mary C. Berger
-------------------------
Optionee
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<PAGE>
EXHIBIT A
[EXERCISE DATE]
Global Link Teleco Corporation
5697 Rising Sun Avenue
Philadelphia, Pennsylvania 19120
Attn:
Ladies and Gentlemen:
I represent to Global Link Teleco Corporation (the "Company") that pursuant
to that Stock Option Agreement dated [____________], I am purchasing [________]
shares of the Company's common stock, par value $0.0001 per share ("Common
Stock") to be purchased by me solely for my own account and with no intention of
distributing or reselling said Common Stock or any part thereof, or interest
therein, in any transaction which would be in violation of the securities laws
of the United States of America or any state thereof, without prejudice,
however, to my right at all times to sell or otherwise dispose of all or any
part of said Common Stock under a registration under the Securities Act of 1933,
as amended ("Securities Act"), or under an exemption from such registration
available under the Securities Act.
If I desire to sell or otherwise dispose of all or any part of the Common
Stock under an exemption from registration under the Securities Act, I will
deliver to the Company an opinion (addressed to the Company) of counsel which
opinion shall be reasonably satisfactory in form and substance to the Company,
that such exemption is available.
Very truly yours,
[Name of Optionee]
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<PAGE>
EXHIBIT 4.12
STOCK OPTION AGREEMENT
This Stock Option Agreement dated as of June 1, 1995, (the "Agreement") is
made between Global Link Teleco Corporation, a Delaware corporation having its
principal place of business at 5697 Rising Sun Avenue, Philadelphia,
Pennsylvania 19120 (the "Company") and Edward W. Ragar, residing at ____________
____________________________ (the "Optionee").
W I T N E S S E T H:
As an inducment to the employment of the Optionee, the Company has agreed
to grant the Optionee an option to purchase shares of the Company's common
stock, par value $.0001 per share (the "Common Stock"), on the terms and
conditions contained herein.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to the Optionee,
subject to the terms and conditions herein set forth, the right and option (the
"Option") to purchase from the Company all or any part of an aggregate of 20,000
shares of Common Stock on the terms and conditions contained herein. The shares
of Common Stock into which the Option may be exercised shall be referred to
hereinafter as the "Shares". The Option granted hereby shall not be treated as
an "incentive stock option" as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), or any successor or similar
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<PAGE>
provision and accordingly, the Optionee may realize ordinary income for federal
income tax purposes upon an exercise of the Option.
2. Option Price and Payment Method. The purchase price of the Shares
payable upon any full or partial exercise of the Option shall be $2.00 per
share, subject to adjustment as hereinafter provided.
3. Term; Exercise. Except to the extent otherwise provided in Paragraphs 4
and 8 hereof, the Option cannot be exercised after the close of business on June
1, 2000 (the "Termination Date"). The Option may be exercised at any time or
from time to time prior to the Termination Date as to any part or all of the
Shares in accordance with the following terms and conditions:
(a) Except as otherwise provided in Paragraph 8 of this Agreement,
the Option shall be exercisable in three equal annual
installments commencing on the date hereof.
(b) The Option may not be exercised with respect to less than one
hundred Shares (or the remaining Shares then purchasable under
the Option, if less than one hundred Shares) or for any
fractional Shares.
4. Termination of Employment. If the Optionee's employment by the Company
or any affiliate of the Company shall terminate for any reason, other than
death, disability or cause, the Option shall be exercisable only as to those
Shares which
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<PAGE>
were immediately purchasable by the Optionee on such date on which the
Optionee's employment terminated, in which case, notwithstanding any other
provision in this Agreement, the Option shall expire on the earlier of (i) the
Termination Date or (ii) a date three months after the date that the Optionee's
employment terminates, or, if the employment terminates because of the
Optionee's death or disability within the meaning of Section 105(d)(4) of the
Code, a date one year after the date the employment terminates. If the Optionee
is discharged for cause, all rights under the Option shall expire immediately
upon termination. From the termination of the employment until the expiration of
the Option on the date specified by the preceding sentences, the Option may be
exercised by the Optionee, his legal representative, his executor or
administrator, or his legatees or distributees only to the extent and for the
number of Shares for which the Option could have been exercised on the date
employment terminated. The Optionee's transfer, without interruption in service,
between the Company and any of its affiliates during the term of the Option
shall not be considered a termination of employment for purposes hereof. The
Optionee's rights shall not be affected by any changes in duties or position
after the date the Option is granted, so long as the Optionee remains
continuously employed by the Company or any of its affiliates.
5. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by delivering written notice to the
Company at its then principal office. Such notice shall state the election to
exercise the
-3-
<PAGE>
Option, the number of Shares in respect to which it is being exercised, and the
method of payment to be utilized in connection with such exercise. Such notice
shall be signed by the person or persons so exercising the Option. The purchase
price for the Shares for which the Option is being exercised shall be paid, at
the option of the Optionee by delivering with the notice of exercise cash or a
certified check, payable to the Company, or a combination of cash or certified
check for the full amount of the purchase price for the Shares for which the
option is being exercised. If the Option is exercised by a person other than the
Optionee, the notice of exercise shall be accompanied by the appropriate proof,
in form and substance satisfactory to the Company, of such person's right to
exercise the Option. Certificates for Shares for which the Option has been
exercised shall not be issued until the Company receives the full purchase price
for such Shares. Shares and the certificates therefor shall be issued in the
name of the person who is entitled at the time to exercise the Option, or, if
such person is the Employee and he so elects, in the name of the Employee and
another person as joint tenants with right of survivorship. Upon the issuance of
Shares in accordance with this Agreement, such Shares shall be validly issued,
fully paid and non-assessable.
6. No Transfer of Option. This option is not transferable by the Optionee
except by will or the then applicable laws of descent and distribution and may
exercised during the lifetime of the Optionee only by the Optionee. Subject to
the foregoing, this Agreement shall be binding upon
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<PAGE>
and inure to the benefit of the parties hereto and their respective successors
and assigns, and no other person shall have any right, benefit or obligation
hereunder.
7. Other Limitations. Notwithstanding any other provision of this
Agreement, this Option shall not be exercisable if the exercise would involve a
violation of any applicable federal or state securities law, and the Company
hereby agrees to make reasonable efforts to comply with all such laws.
8. Adjustments. Upon the occurrence of a change in the corporate structure
of the Company, including but not limited to any merger, reorganization,
recapitalization, payment of a non-cash dividend or stock slit, which affects
the kind or number of issued shares of Common Stock, the Board of Directors
shall make such adjustments in the number or kind of shares of Common Stock
covered by this option as the Board of Directors may in good faith determine so
as to prevent the dilution or enlargement of the Optionee's proportionate
interest in the Company and his rights hereunder. In the event of a merger of
the Company with another entity which results in the conversion of the Common
Stock into the right to receive cash or securities of another entity, the right
to receive Common Stock under this Option shall be converted, upon the
effectiveness of any such merger, into the right to receive the amount of cash
or the kind and number of securities or any combination thereof, that the
Optionee would have received in the merger had the Optionee exercised this
Option immediately prior to the effectiveness of such merger.
-5-
<PAGE>
9. Withholding. If the Company shall be required to withhold any federal,
state, local or foreign tax in connection with an exercise of this Option, it
shall be a condition to the exercise that the Optionee pay or make provision
satisfactory to the Company for payment of any such taxes.
10. Investment Representation. The Board of Directors may require the
Optionee to furnish to the Company, prior to the issuance of any shares upon the
exercise of all of any part of this option, an agreement (in such form as the
Board of Directors may specify or substantially in the form attached hereto as
Exhibit A) in which the Optionee represents that the Shares are being acquired
for investment and not for resale or with a view to distribution thereof.
11. No Rights of Stockholders or to Continued Employment. The Optionee
shall not have any of the rights of a stockholder of Common Stock with respect
to the Shares until such Shares have been issued after due exercise of the
Option. Nothing contained in this Option shall limit in any way whatsoever any
right that the Company or an affiliate may otherwise have to terminate the
employment of the Optionee at any time.
12. Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise ex- pressly provided.
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<PAGE>
13. Entire Agreement. This Agreement, together with all schedules hereto,
constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties hereto. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
14. Notices. All notices and other communications to be given under or
pursuant to this Agreement shall be in writing and shall be sent by first class
certified or registered mail, postage prepaid, or by nationally recognized
overnight courier service, to the address of the party to whom such
communication is being sent at the address set forth in the first sentence of
this Agreement. Any party hereto may change the address to which each such
notice or communication shall be sent by giving written notice it all of the
other parties hereto in accordance with this paragraph.
15. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall constitute one and the same instrument.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its
provisions regarding conflict of laws.
17. Captions. The captions of the paragraphs of this Agreement are for the
purpose of convenience only, are not
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<PAGE>
intended to be part of this Agreement and shall not be deemed to modify,
explain, enlarge or restrict any of its provisions.
18. Separability. If any clause or provision of this Agreement shall be
held invalid or unenforceable, in whole or in part, in any jurisdiction, such
invalidity or unenforceability shall attach only to such clause or provision, or
part thereof, and shall not in any manner affect any other clause or provision
in any jurisdiction.
IN WITNESS WHEREOF, this Agreement has been executed as of the
day and year first written above.
GLOBAL LINK TELECO CORPORATION
By:________________________
Name:
Title:
/s/ Edward W. Ragar
-------------------------
Optionee
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<PAGE>
EXHIBIT A
[EXERCISE DATE]
Global Link Teleco Corporation
5697 Rising Sun Avenue
Philadelphia, Pennsylvania 19120
Attn:
Ladies and Gentlemen:
I represent to Global Link Teleco Corporation (the "Company") that pursuant
to that Stock Option Agreement dated [____________], I am purchasing [________]
shares of the Company's common stock, par value $0.0001 per share ("Common
Stock") to be purchased by me solely for my own account and with no intention of
distributing or reselling said Common Stock or any part thereof, or interest
therein, in any transaction which would be in violation of the securities laws
of the United States of America or any state thereof, without prejudice,
however, to my right at all times to sell or otherwise dispose of all or any
part of said Common Stock under a registration under the Securities Act of 1933,
as amended ("Securities Act"), or under an exemption from such registration
available under the Securities Act.
If I desire to sell or otherwise dispose of all or any part of the Common
Stock under an exemption from registration under the Securities Act, I will
deliver to the Company an opinion (addressed to the Company) of counsel which
opinion shall be reasonably satisfactory in form and substance to the Company,
that such exemption is available.
Very truly yours,
[Name of Optionee]
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EXHIBIT 5.1
GRAUBARD MOLLEN & MILLER
600 Third Avenue
New York, NY 10016
February 7, 1997
Global Telecommunication Solutions, Inc.
5697 Rising Sun Avenue
Philadelphia, PA 19120
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the
purchase and offering by Global Telecommunication Solutions, Inc. ("Company"),
of up to 1,937,427 shares ("Shares") of the Company's Common Stock, $.01 par
value per share, pursuant to options which have been or may be granted under the
Company's 1994 Performance Equity Plan and certain other employee benefit plans
(the "Plans").
In such capacity, we have examined, signed and conformed
copies of the Registration Statement on Form S-8 relating to the Shares filed by
the Company with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended ("Securities Act") on February 7, 1997,
(hereinafter referred to as the "Registration Statement"), and have examined the
Prospectus dated February 7, 1997 relating to the Shares ("Prospectus"). We have
also examined, among other documents, signed copies of the Stock Option
Agreements between the Company and the grantees of options under the Plans,
copies of the Certificate of Incorporation, as amended, and By-Laws of the
Company, as amended, and copies of resolutions adopted by the Company's Board of
Directors relating, among other things, to the authorization and sale of the
Shares. In addition, we have examined and relied upon, to the extent we deemed
such reliance proper, certificates of officers and directors of the Company,
certificates of certain public officials and such other records and documents as
we have considered necessary and proper in order that we may render the opinion
hereinafter set forth. We have assumed the authenticity of such Certificate of
Incorporation, as amended, By-Laws, as amended, resolutions, certificates,
records and other documents examined by us and the correctness of all statements
of fact contained therein, and nothing has come to our attention which indicates
that such documents and other items are not authentic or correct. With respect
to such examination, we have assumed the genuineness of all signatures appearing
on all documents presented to us as originals and the conformity to originals of
all documents presented to us as conformed or reproduced documents. We have not
examined the certificates for the Shares other than specimens thereof.
As members of the Bar of the State of New York, we do not
purport to be experts in the laws of any jurisdiction other than the State of
New York and with respect to the federal laws of the United States.
II-8
<PAGE>
Global Telecommunication Solutions, Inc.
February 7, 1997
Page 2
Based on the foregoing, we are of the opinion that the Shares
being offered pursuant to the Stock Option Agreements and the terms of the Plans
have been duly authorized and, when issued and delivered against payment
therefor, as contemplated by the Registration Statement and the Stock Option
Agreements, will be validly issued and fully paid and nonassessable.
This letter is being delivered to you solely for your benefit
and may not be relied upon in any manner by any other person.
Very truly yours,
/s/ Graubard Mollen & Miller
GRAUBARD MOLLEN & MILLER
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Global Telecommunication Solutions, Inc. and subsidiaries
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Philadelphia, Pennsylvania
February 7, 1997
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<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Global Telecommunication Solutions, Inc. of our report
dated December 12, 1995, except as to the merger described in Note 12, which is
as of February 29, 1996, with respect to the financial statements of Global Link
Teleco Corp., included in Global Telecommunication Solutions, Inc.'s Form 8-K/A
Amendment No. 2 to Form 8-K filed September 6, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Philadelphia, PA
February 6, 1997
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