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Exhibit 4.10
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of the 31st
day of October, 1999 (the "Grant Date") by and between FIRSTCOM CORPORATION (the
"Grantor" or the "Company") and ▇▇▇▇▇▇▇▇ ▇. NORTHLAND (the "Optionee").
W I T N E S S E T H
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
November 1, 1999, among AT&T Corp., a New York corporation, Kiri Inc., a
Delaware corporation, Frantis, Inc., a Delaware corporation, and the Company
(the "Merger Agreement"), the parties thereto have agreed to enter into the
business combination transaction described therein; and
WHEREAS, the Optionee has served as Chairman of the Board of Directors,
Chief Executive Officer and President of the Company pursuant to the Executive
Employment and Severance Agreement, dated as of October 7, 1997, between the
Company and the Executive (the "Employment Agreement"); and
WHEREAS, the parties to the Merger Agreement desire that, following the
"Effective Time" (as defined in the Merger Agreement) the Optionee serve as the
Chief Executive Officer and the President of Kiri, Inc., and the Optionee
desires to so serve, in each case upon the terms and conditions set forth in the
Employment Agreement, dated as of the date hereof, among the Company, Kiri, Inc,
and the Optionee (the "Successor Employment Agreement"); and
WHEREAS, in consideration of prior services and services to be rendered
by the Optionee to the Grantor, whether or not the transactions contemplated by
the Merger Agreement are consummated, the Grantor desires to grant the Optionee
an option to purchase TWO MILLION TWO HUNDRED THOUSAND (2,200,000) shares of
Common Stock par value $.001 per ("Common Stock"), of the Grantor, upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this Agreement, the
Grantor hereby grants to the Optionee a non-qualified stock option (the
"Option") (subject to Section 8 hereof) to purchase from the Grantor TWO MILLION
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TWO HUNDRED THOUSAND (2,200,000) shares of Common Stock (after the exercise of
the option and the acquisition of the shares, the "Options Shares"), at the
price of $10.70 per whole share (the "Option Price"). This Option is being
granted pursuant to the FirstCom Corporation 1999 Stock Option and Restricted
Stock Purchase Plan (the "Plan"). Capitalized terms used herein have the meaning
given in the Plan.
SECTION 2. EXERCISE OF OPTION. The Option shall be exercisable commencing as
follows and, unless sooner terminated, shall remain exercisable until the tenth
anniversary hereof (the "Expiration Date"): one-ninth (1/9) on March 1, 2001,
three-ninths (3/9) on each of the second and third anniversaries thereof, and
one-ninth (1/9) on each of the fourth and fifth anniversaries thereof. The
Option may be exercised by the Optionee's delivering to the Grantor a written
notice specifying the number of the Option Shares that the Optionee wishes to
purchase pursuant to the Option and tendering the Option Price multiplied by the
number of such Option Shares. The Option Price of any Option Shares purchased
shall be paid in cash, by certified or official bank check or money order, or by
the Optionee's delivering shares of Common Stock that the Optionee has held for
not less than six months and having a Fair Market Value at the time of exercise
equal to such amount. The Optionee shall be deemed to be a holder of the Option
Shares immediately upon, and to the extent of, the exercise of this Option as
set forth above.
SECTION 3. NUMBER OF SHARES EXERCISABLE. Each exercise of an Option hereunder
shall reduce the total number of Option Shares that may thereafter be purchased
under this Option.
SECTION 4. SHARE CERTIFICATES. Upon each exercise of the right to purchase
Option Shares pursuant to this Option, the Grantor shall cause one or more stock
certificates evidencing the Optionee's ownership of the Option Shares to be
issued to the Optionee, which certificates shall bear such legend or legends as
the Committee may be determine necessary or appropriate.
SECTION 5. ANTI-DILUTION PROVISIONS.
(a) ADJUSTMENT FOR RECAPITALIZATION. If the Grantor shall any time
subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its stockholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by
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recapitalization, reclassification or combination thereof, the
number of option shares then subject to this Option immediately
prior to such combination shall be proportionately decreased and
the exercise price shall be proportionately increased. Any such
adjustments pursuant to this Section 4(a) shall be effective at
the close of business on the effective date of such subdivision or
combination or if any adjustment is the result of a stock dividend
or distribution then the effective date for such adjustment based
thereon shall be the record date thereof.
(b) ADJUSTMENT FOR REORGANIZATION, CONSOLIDATION, MERGER, ETC. In case
of any reorganization of the Grantor or in case the Grantor shall consolidate
with or merge into another corporation or convey all or substantially all of its
assets to another corporation, then, and in each such case, the Optionee upon
the exercise of this Option at any time after the consummation of such
reorganization, consolidation, merger or conveyance, shall be entitled to
receive, in lieu of the Option Shares issuable upon the exercise of this option
prior to such consummation, the securities or properties to which the Optionee
would have been entitled upon such consummation if the Optionee had exercised
this option immediately prior to thereto; in each such case, the terms of this
option shall be applicable to the securities or property receivable upon the
exercise of this Option after such consummation. For the avoidance of doubt,
upon consummation of the transactions contemplated by the Merger Agreement, the
Options will, subject to such adjustments as may be appropriate pursuant to
paragraphs (a) and (b) of this Section, become Options to purchase common stock
of Kiri Inc. and references to the "Company" herein will be deemed to refer to
Kiri Inc.
(c) NO ADJUSTMENT FOR STOCK ISSUANCES. Except as otherwise expressly
provided herein, the issuance by the Grantor of shares of its capital stock of
any class, or securities convertible into shares of capital stock of any class,
either in connection with the direct sale or upon the exercise of rights or
warrants to subscribe therefore, or upon conversion of shares or obligations of
the Grantor convertible into such shares or other securities, shall not effect
this Option, and no adjustment by reason thereof shall be made with respect to
the number of or exercise price of Option Shares then subject to this Option.
(d) NO EFFECT ON CORPORATE ACTIONS. Without limiting the generality of
The foregoing, the existence of this Option shall not affect in any manner the
right or power of the Grantor to approve or the Grantor to make, authorize of
consummate (i) any or all adjustments, recapitalizations, reorganizations or
other changes in the Grantor's capital structure or its business; (ii) any
merger or consolidation of the Grantor; (iii) any issuance by the Grantor of
debt securities, or preferred or preference stock that would rank above the
Option Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Grantor; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Grantor or (vi) any other corporate act or
proceeding, whether of similar character or otherwise.
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SECTION 6. IMMEDIATELY EXERCISE OF OPTION UPON CHANGE IN CONTROL. Except as
otherwise provided herein, each outstanding Option shall become immediately
fully exercisable upon a Change in Control. For these purposes, "CHANGE IN
CONTROL" means the occurrence of any of the following events:
(a) the members of the Board at the beginning of any
consecutive twenty-four calendar month period (the "INCUMBENT
DIRECTORS") cease for any reason other than due to death to constitute
at least a majority of the members of the Board, provided that any
director whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the
members of the Board then still in office who were members of the Board
at the beginning of such twenty-four calendar month period other than
as a result of a proxy contest, or any agreement arising out of an
actual or threatened proxy contest, shall be treated as an Incumbent
Director; or
(b) any "person," including a "group" (as such terms are used
in Sections 13 (d) and 14(d)(2) of the Act), but excluding AT&T Corp.,
the Company or any of their respective subsidiaries or any employee
benefit plan thereof, becomes the "beneficial owner" (as defined in
Rule 13(d)-3 under the Act), directly or indirectly, of securities of
the Company representing more than 50% of the combined voting power of
the Company's then outstanding securities, other than pursuant to a
tender offer or exchange offer initiated by AT&T Corp., the Company or
any of their respective subsidiaries; or
(c) stockholders of the Company shall approve a definitive
agreement for the merger or other business combination of the Company
with or into, or the sale or other disposition of all or substantially
all of the assets of the Company to, another corporation a majority of
the directors of which were not directors of the Company immediately
prior to the merger and in which the stockholders of the Company
immediately prior to the effective date of such merger own a percentage
of the voting power in such corporation that is less than one-half of
the percentage of the voting power they owned in the Company
immediately prior to such a transaction, in each case other than
pursuant to a tender offer or exchange offer initiated by AT&T Corp.,
the Company or any of their respective subsidiaries, and provided that
such transaction shall have been consummated.
For the avoidance of doubt, the consummation of the transactions contemplated by
the Merger Agreement shall not be a Change in Control.
SECTION 7. TERMINATION OF EMPLOYMENT. In the event the Optionee's employment
terminates as a result of his death or "Disability", or the Company terminates
the Optionee's employment without "Cause," or the Executive terminates his
employment for "Good Reason", the Options shall immediately and fully vest. For
purposes of this Agreement, the terms "Disability", "Cause" and "Good Reason"
shall have the meanings given in the Employment Agreement prior to the
consummation of the Merger (as defined in the Merger Agreement), and shall have
the meanings given in the Successor Employment Agreement thereafter.
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SECTION 8. NON-TRANSFERABILITY OF OPTION. Unless otherwise permitted by the
Committee, this Option may not be transferred in any manner other than by will
or by the laws of descent or distribution and may be exercised during the
lifetime of the Optionee only by the Optionee. The terms of this Option
Agreement shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
SECTION 9. TERMINATION OF OPTION. The Option shall terminate under the
following circumstances:
(a) The Option shall terminate on the Expiration Date;
(b) The Option shall terminate three months after the
Optionee's termination of employment or ceases to be a director of the
Company
(c) The Option shall terminate immediately if the Executive's
employment terminates for "Cause"
(d) If the Optionee dies or his employment is terminated by
reason of his Disability before the Option terminates pursuant to
Section 9(a), 9(b) or 9(c), above, the option shall terminate on the
earlier of (i) the date on which the Option would have lapsed had the
Optionee lived (or not become disabled) and had his employment status
(i.e. whether the Optionee was an employed on the date of his death or
disability or had previously terminated employment) remained unchanged;
or (ii) 15 months after the date of the Optionee's death or Disability.
Upon the Optionee's death, any exercisable Options may be exercised by
the Optionee's legal representative or representatives, by the person
or persons entitled to do so under the Optionee's last will and
testament, or, if the Optionee shall fail to make testamentary
disposition of the Option or shall die intestate, by the person or
persons entitled to receive said Option under the applicable laws of
descent and distribution.
SECTION 10. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder in respect to the Option Shares as to which the Option shall not
have been exercised and payment made as herein provided.
SECTION 11. ISSUANCE OF SHARES. As a condition of any sale or issuance of Option
Shares upon exercise of this option, the Grantor may require such agreements or
undertakings, if any, as the Grantor may deem necessary or advisable to assure
compliance with any such applicable securities or other law or regulation
including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the
Grantor, at the time this Option is exercised, that he is acquiring the
Option Shares to be issued to him for investment and not with a view
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to, or for sale in connection with, the distribution of any such Option
Shares; and
(b) a representation, warranty and/or agreement to be bound by
any legends that are, in the opinion of the Grantor, necessary or
appropriate to comply with the provisions of any securities law deemed
by the grantor to be applicable to the issuance of the Option Shares
and are endorsed upon the Option Share certificates.
SECTION 12. MISCELLANEOUS PROVISIONS.
(a) NOTICES. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(b) ASSIGNMENT. This agreement may not be assigned in whole or
in part by the Optionee except with the consent of the Committee.
(c) FURTHER ASSURANCES. The Optionee shall execute and deliver
such other instruments and do such other acts as may be necessary to effectuate
the intent and purposes of this Agreement.
(c) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope this Agreement or the intent any of the provisions hereof.
(e) COMPLETENESS AND MODIFICATION. This Agreement constitutes
the entire understanding between the parties hereto and supersedes all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant by the Grantor to the Optionee of stock options and shall not be
terminated or amended except in writing executed by each of the parties hereto.
(f) WAIVER. The waiver of a breach of any term or condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
or the same or any other term or condition.
(g) SEVERABILITY. The invalidity or unenforceability in whole
or in part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause, or word or of any provisions of this Agreement
shall not affect the validity or enforceability of the remaining portions
thereof.
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(h) CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(i) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
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IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the date first above written.
GRANTOR:
FIRSTCOM CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title: Chief Financial Officer
OPTIONEE:
/s/ ▇▇▇▇▇▇▇▇ ▇. Northland
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▇▇▇▇▇▇▇▇ ▇. Northland
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