GLOBALSTAR, INC. NON-QUALIFIED STOCK OPTION AWARD AGREEMENT FOR PETER J. DALTON AMENDED AND RESTATED 2006 GLOBALSTAR, INC. EQUITY INCENTIVE PLAN (CONTAINS ADDITIONAL PERFORMANCE-BASED BONUS COMPENSATION PROVISIONS)
Exhibit
10.1
XXXXX
X. XXXXXX
AMENDED
AND RESTATED 2006 GLOBALSTAR, INC.
EQUITY
INCENTIVE PLAN
(CONTAINS
ADDITIONAL PERFORMANCE-BASED
BONUS
COMPENSATION PROVISIONS)
THIS AWARD AGREEMENT (“Agreement”), is entered into
as of September 23, 2009 (the “Grant Date”), by and between
GLOBALSTAR, INC., a
Delaware corporation (the “Company”), and XXXXX X. XXXXXX (“Executive”).
1. GRANT. In
accordance with Resolutions adopted of even date by its Board of Directors (the
“Board”), the Company
hereby grants to Executive effective on the Grant Date, subject to and in
accordance with the terms and conditions of this Agreement and the Amended and
Restated 2006 Globalstar, Inc. Equity Incentive Plan (as amended or restated
from time to time, the “Plan”), a total of Three Million (3,000,000)
non-qualified stock options (“Options”), each Option to
purchase one share of the Company’s Common Stock, par value $0.0001 per share (a
“Share”), at the
exercise price (“Exercise
Price”) of $0.83 per share, which is the NASDAQ closing bid price for a
Share on the Grant Date.
2. CONSIDERATION;
DEFINITIONS. The Awards made by or pursuant to this Agreement
are in partial consideration of service by Executive as the Company’s Chief
Executive Officer and as a member of its Board of Directors (“Service”). Capitalized
terms used but not defined in this Agreement have the meanings given to such
terms in the Plan.
3. GRANT
AND VESTING.
(a) One
Million Five Hundred Thousand (1,500,000) of the Options are vested on the Grant
Date. One Million Five Hundred Thousand (1,500,000) of the Options
shall vest according to the Condition of Vesting explained in Section
3(b). The date on which such vesting occurs may be referred to below
as the “Vesting
Date.”
(b) The
”Condition of Vesting”
is that the Company’s common stock, par value $.001, which currently trades on
the NASDAQ exchange, shall have traded publically, for not less than twenty (20)
consecutive trading days at or above a minimum price of not less than Three
Dollars ($3.00) per share, subject to any adjustment for any stock split or
reverse stock split of the Company’s common stock. The Condition of
Vesting shall not occur and all unexercised or unvested Options shall
automatically be forfeited if any of the following events
occurs: (i) Executive voluntarily resigns from Service as a
Section 16 reporting officer of the Company or as a member of the Board; (ii)
Executive, at the expiration of the Executive’s current term as a member of the
Board declines nomination for an additional term as a member of the Board (or,
having been nominated but not yet elected for an additional term, Executive
voluntarily informs the Board that the Executive will not serve for an
additional term if elected); (iii) at any time, regardless of whether Executive
has been nominated for an additional term, because an event of Cause, is
requested to resign, in accordance with the vote of a majority of Board members
other than Executive; or (iv) Executive, for any other reason, with or without
fault, and regardless of Cause, fails to continue in Service as an officer of
the Company and as a member of its Board until the Condition of Vesting has been
achieved.
4. CAUSE. For purposes
of this Agreement, “Cause” means (i) any act
of fraud, theft, or misappropriation of property relating to the Company; (ii)
any material neglect or misconduct by Executive in discharging the ordinary and
necessary duties of Service; (iii) any conviction, or plea of guilty or no
contest, by Executive for any felony or any other crime related to Executive’s
Service and involving moral turpitude; or (iv) any action or failure to act by
Executive which results in a penalty or sanction being levied against Executive
or the Company by the Securities and Exchange Commission or the Federal
Communications Commission. The decision of the Board on the question
of whether Cause exists shall be final and conclusive.
5. COMPLIANCE WITH RULE
16B-3. The Options subject to this Agreement have been
approved by the Board of Directors in compliance with Rule 16b-3(d) promulgated
under the Securities Exchange Act of 1934.
6. EXPIRATION OF
OPTIONS. Subject to applicable law and the Company’s
then-effective xxxxxxx xxxxxxx policy, Options that have vested may be exercised
at any time, and from time to time, in the manner provided in this Agreement,
until five o’clock p.m., Pacific Daylight Time, on the tenth (10th)
anniversary date of this Agreement (the “Expiration
Time”). If the Condition of Vesting has not occurred on or
before the Expiration Time, all Options then unvested under this Agreement shall
automatically lapse and be of no further force or effect.
7. EXERCISE. Only
Options that are granted and vested may be exercised. In order to
exercise any Option, Executive must deliver to the Company a written notice at
any time until the Expiration Time indicating the number of Options being
exercised, accompanied by full payment of the Exercise Price applicable to the
exercise. Executive may exercise Options as often as a notice is
given and payment is tendered in accordance with this Agreement, except that
each exercise must be in the minimum amount of at least 1,000 Options, or if
less than 1,000 Options, or if less than 1,000 Options remain unexercised any
exercise must be for not less than all remaining unexercised
Options. Executive may pay the Exercise Price in cash, by
transferring to the Company Shares owned by Executive for at least 6 months
prior to the exercise with a Fair Market Value on the date of exercise equal to
or in excess of the Exercise Price, by delivery of an irrevocable instruction to
a broker approved by the Company of properly executed instructions, providing
for the assignment to the Company of the proceeds of a sale with respect to some
or all of the Shares issued upon exercise of an Option, or by a combination of
the foregoing. Executive shall have no rights as a stockholder with
respect to purchased Shares before the exercise of an Option and delivery to
Executive of a certificate evidencing those Shares or a statement evidencing the
entry of the Shares in Executive’s name in book entry form.
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8. TAXES. Upon
exercise of Options, Executive will become liable for and must pay all
applicable U.S. federal, state, and local taxes resulting from
exercise. Executive agrees that the preceding sentence shall not
relieve Executive of the obligation to obtain tax advice from Executive’s
independent taxation advisor(s). The foregoing notwithstanding, the
Company may, but shall not be obligated to Executive to, withhold all applicable
taxes becoming due from Executive upon exercise of the Options (by withholding
of Shares from delivery or otherwise) from the proceeds of any exercise or from
any directors’ fees or other payments then due or to become due to
Executive. Subject to compliance with applicable law, Executive may
satisfy the Company’s tax withholding by the Company in accordance with
procedures established by the Company providing for delivery by Executive to the
Company or a broker approved by the Company of properly executed instructions,
in a form approved by the Company, providing for the assignment to the Company
of the proceeds of a sale with respect to some or all of the Shares issued upon
exercise of Options. It is the intention of the parties that Options,
and Shares issued upon exercise of Options, under this Agreement shall comply
with, and/or be exempt from, the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended, so that no adverse tax consequences of such
Section will be imposed upon Executive at the time of any exercise of
Options. This Agreement is not intended to be a qualified plan under
the Federal Employee Retirement Income Security Act. Nothing in this
Agreement shall be construed to be at variance with these
intentions.
9. TRANSFERABILITY. Executive
may not transfer the Options or Executive’s rights under this Agreement other
than (i) by will, (ii) by the laws of descent and distribution applicable to
Executive’s estate, or (iii) by grant to the trustee of an irrevocable or living
trust for the benefit of Executive and/or Executive’s estate or beneficiaries as
designated from time to time in accordance with such trust (a “Permitted
Trust”). Options shall be exercisable during Executive’s
lifetime only by Executive or by Executive’s guardian, legal representative, or
the trustee of a Permitted Trust, and after Executive’s death only by the duly
appointed and qualified personal representative of Executive’s estate or the
trustee of a Permitted Trust to which such property or rights have been duly
transferred.
10. LAWS AND
REGULATIONS. No Shares shall be issued upon exercise of
Options unless and until all legal requirements applicable to the issuance of
such shares have been complied with to the satisfaction of the Board or the
Committee. The Board or the Committee shall have the right to
condition any issuance of Shares to Executive hereunder on Executive’s
undertaking in writing to comply with such restrictions on the subsequent
disposition of such Shares as the Committee shall deem necessary or advisable as
a result of any applicable law or regulation.
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11. RESERVATION OF REGISTERED
SHARES. As soon as practicable, the Company shall cause Shares
that have been registered under the Securities Act of 1933, as amended (the
“Securities Act”)
corresponding in number to the Options awarded, without regard to possible
future forfeiture, to be reserved by the Company’s registrar and transfer agent
for issuance upon exercise of Options. The Company shall thereafter
use its best efforts to maintain the effectiveness of such registration and
qualification until exercise or earlier expiration of the Options.
12. MARKET STANDOFF
PERIOD. Executive acknowledges and agrees that if so requested
in connection with any registration of the offering of any securities of the
Company (or any successor) under the Securities Act, Executive will not buy,
sell, or otherwise transfer any Shares or other securities of the Company (or a
successor) during the 180-day period (or such other period as may be requested
by any underwriter or the Company in writing) (the “Market Standoff Period”)
following the effective date of a registration statement of the Company (or any
successor), any parent corporation (as defined in Section 424 of the Internal
Revenue Code) or any Subsidiary filed under the Securities Act. To
enforce this restriction, such entity may impose stop-transfer instructions with
respect to securities subject to the foregoing restrictions until the end of
such Market Standoff Period.
13. NOTICES. Any
notices required or permitted hereunder shall be addressed to the Company at its
corporate headquarters, to the attention of either the Director of Human
Resources or the Corporate Secretary, or to Executive at the address then on
record with the Company, as the case may be. Notices shall be effective when
delivered or, if delivery is released, when delivery is attempted in the
ordinary course. Either party may, by notice to the other given in
the manner aforesaid, change his or its address for future notices.
14. HEADINGS. The
headings of paragraphs herein are included solely for convenience of reference
and shall not affect the meaning or interpretation of any of the provisions of
this Agreement.
15. INTERPRETATION. Nothing
in this Agreement shall be construed to: (i) confer on Executive any
right to be granted any option, right, or benefit other than as set forth herein
or at the sole discretion of the Board or Committee; (ii) confer on Executive
any rights whatsoever with respect to Shares except as specifically provided in
this Agreement; (iii) limit in any way the right of the Company terminate
Executive’s Service at any time (however such termination may give rise to
rights on behalf of Executive as described in the final sentence of this Section
16; or (iv) be evidence of any agreement or understanding, expressed or implied,
that the Company or its subsidiaries or affiliates will employ or retain
Executive in any position, including without limitation as a member of the Board
of Directors, at any rate of compensation or for any period of
time.
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16. GOVERNING
LAW: INTERPRETATION. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
without regard, except as to matters pertaining to estate planning, to
California conflict of laws principles. It is subject to and shall be
interpreted to be consistent with the Plan.
17. SUCCESSORS AND
ASSIGNS. This Agreement shall bind and inure to the benefit of
the Company, its successors and assigns, and Executive and Executive’s personal
representatives and permitted assigns.
18. AMENDMENT;
COUNTERPARTS. This Agreement may be amended or modified at any
time by an instrument in writing signed by both parties hereto. This
Agreement and any amendments thereto may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
19. SURVIVAL OF
AGREEMENT. To the extent necessary to carry out the intentions
of the parties hereto, the respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement.
20. PERFORMANCE-BASED BONUS
COMPENSATION. If at any time while Executive is continuing in
Service as the Company’s Chief Executive Officer and as a member of its
Board, Executive is materially involved in arranging and concluding
the sale, exchange, or transfer of all of the Company’s equity or all or
substantially all of the assets of the Company (in each case, other than a sale,
exchange or transfer to one or more subsidiaries of the Company) (a “Liquidation Event”) whereby
the holders of the Company’s common stock shall have received net before tax
consideration in excess of Three Dollars ($3.00) per share (as adjusted in
accordance with Section 3(b), the “Purchase Price”) , then as
additional compensation, Executive shall receive from the Company for service as
Chief Executive Officer, a cash payment equal to one percent (1%) of the
difference between $3.00 and the Purchase Price multiplied by the number of
outstanding shares of common stock of the Company immediately prior to the
closing of the Liquidation Event. For purposes of this Section 20,
the term “common stock” means both voting and non-voting (if any) common stock
of the Company then outstanding.
| GLOBALSTAR, INC. | ||
| By: |
/s/ Xxxxx Xxxxxx III
|
|
| Printed Name: Xxxxx Xxxxxx III | ||
| Title: Executive Chairman of the Board | ||
| /s/ Xxxxx X. Xxxxxx | ||
| Xxxxx X. Xxxxxx | ||
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