EXHIBIT 10(l)
ATLANTIC TELE-NETWORK, INC.
1998 STOCK OPTION PLAN
As adopted by the Board of Directors
on October 30, 1998
ATLANTIC TELE-NETWORK, INC.
1998 STOCK OPTION PLAN
1. Purpose.
The purpose of this Plan is to strengthen ATLANTIC TELE-NETWORK, INC., a
Delaware corporation (the "Company"), by providing an incentive to its
employees, officers, consultants and directors and thereby encouraging them to
devote their abilities and industry to the success of the Company's business
enterprise. It is intended that this purpose be achieved by extending to
employees (including future employees who have received a formal written offer
of employment), officers, consultants and directors of the Company and its
Subsidiaries an added long-term incentive for high levels of performance and
extraordinary efforts through the grant of Incentive Stock Options and
Nonqualified Stock Options (as each term is herein defined).
2 Definitions.
For purposes of the Plan:
2.1 "Affiliate" means any entity, directly or indirectly, controlled by,
controlling or under common control with the Company or any corporation or
other entity acquiring, directly or indirectly, all or substantially all the
assets and business of the Company, whether by operation of law or otherwise.
2.2 "Agreement" means the written agreement between the Company and an
Optionee evidencing the grant of an Option and setting forth the terms and
conditions thereof.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Cause" means:
(a) in the case of an Optionee whose employment with the Company or a
Subsidiary is subject to the terms of an employment agreement between such
Optionee and the Company or Subsidiary, which employment agreement includes a
definition of "Cause", the term "Cause" as used in the Plan or any Agreement
shall have the meaning set forth in such employment agreement during the
period that such employment agreement remains in effect; and
(b) in all other cases, (i) intentional failure to perform reasonably
assigned duties, (ii) dishonesty or willful misconduct in the performance of
duties, (iii) involvement in a transaction in connection with the performance
of duties to the Company or any of its Subsidiaries which transaction is
adverse to the interests of the Company or any of its Subsidiaries and which
is engaged in for personal profit or (iv) willful violation of any law, rule
or regulation in connection with the performance of duties (other than traffic
violations or similar offenses).
2.5 "Change in Capitalization" means any increase or reduction in the
number of Shares, or any change (including, but not limited to, in the case of
a spin-off, dividend or other distribution in respect of Shares, a change in
value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company or another corporation, by reason of
a reclassification, recapitalization, merger, consolidation, reorganization,
spin-off, split-up, issuance of warrants or rights or debentures, stock
dividend, stock split or reverse stock split, cash dividend, property
dividend, combination or exchange of shares, repurchase of shares, change in
corporate structure or otherwise.
10(l)-1
2.6 "Code" means the Internal Revenue Code of 1986, as amended.
2.7 "Committee" means a committee, as described in Section 3.1, appointed
by the Board from time to time to administer the Plan and to perform the
functions set forth herein.
2.8 "Company" means ATLANTIC TELE-NETWORK, INC., a Delaware corporation.
2.9 "Consultant" means any consultant or advisor that qualifies as an
"employee" within the meaning of rules applicable to Form S-8, as in effect
from time to time, of the Securities Act of 1933, as amended.
2.10 "Director" means a director of the Company.
2.11 "Disability" means:
(a) in the case of an Optionee whose employment with the Company or a
Subsidiary is subject to the terms of an employment agreement between such
Optionee and the Company or Subsidiary, which employment agreement includes a
definition of "Disability", the term "Disability" as used in the Plan or any
Agreement shall have the meaning set forth in such employment agreement during
the period that such employment agreement remains in effect; and
(b) in all other cases, the term "Disability" as used in the Plan or any
Agreement shall mean a physical or mental infirmity which impairs the
Optionee's ability to perform substantially his or her duties for a period of
one hundred eighty (180) consecutive days.
2.12 "Division" means any of the operating units or divisions of the
Company designated as a Division by the Committee.
2.13 "Eligible Individual" means any of the following individuals: (a)
any director, officer or employee of the Company or a Subsidiary, (b) any
individual to whom the Company or a Subsidiary has extended a formal, written
offer of employment, or (c) any Consultant.
2.14 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.15 "Fair Market Value" on any date means the closing sales prices of
the Shares on such date on the principal national securities exchange on which
such Shares are listed or admitted to trading, or, if such Shares are not so
listed or admitted to trading, the average of the per Share closing bid price
and per Share closing asked price on such date as quoted on the National
Association of Securities Dealers Automated Quotation System or such other
market in which such prices are regularly quoted, or, if there have been no
published bid or asked quotations with respect to Shares on such date, the
Fair Market Value shall be the value established by the Board in good faith
and, in the case of an Incentive Stock Option, in accordance with Section 422
of the Code.
2.16 "Incentive Stock Option" means an Option satisfying the requirements
of Section 422 of the Code and designated by the Committee as an Incentive
Stock Option.
2.17 "Nonemployee Director" means a director of the Company who is a
"nonemployee director" within the meaning of Rule 16b-3 promulgated under the
Exchange Act.
10(l)-2
2.18 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.19 "Option" means a Nonqualified Stock Option or an Incentive Stock
Option.
2.20 "Optionee" means a person to whom an Option has been granted under
the Plan.
2.21 "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.22 "Parent" means any corporation which is a parent corporation (within
the meaning of Section 424(e) of the Code) with respect to the Company.
2.23 "Performance-Based Compensation" means any Option that is intended
to constitute "performance-based compensation" within the meaning of Section
162(m)(4)(C) of the Code and the regulations promulgated thereunder.
2.24 "Permitted Transferee" means an Optionee's immediate family, trusts
solely for the benefit of such family members and partnerships in which such
family members and/or trusts are the only partners. For this purpose,
"immediate family" of an Optionee means the Optionee's spouse, parents,
children, stepchildren and grandchildren and the spouses of such parents,
children, stepchildren and grandchildren.
2.25 "Plan" means this ATLANTIC TELE-NETWORK, INC. 1998 Stock Option
Plan, as amended from time to time.
2.26 "Shares" means the Common Stock, par value $0.01 per share, of the
Company.
2.27 "Subsidiary" means any corporation which is a subsidiary corporation
(within the meaning of Section 424(f) of the Code) with respect to the
Company.
2.28 "Ten-Percent Stockholder" means an Eligible Individual, who, at the
time an Incentive Stock Option is to be granted to him or her, owns (within
the meaning of Section 422(b)(6) of the Code) stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of
the Company, or of a Parent or a Subsidiary.
3. Administration.
3.1 The Plan shall be administered by the Committee, which shall hold
meetings at such times as may be necessary for the proper administration of
the Plan. The Committee shall keep minutes of its meetings. A quorum shall
consist of not fewer than two (2) members of the Committee and a majority of a
quorum may authorize any action. Any decision or determination reduced to
writing and signed by a majority of all of the members of the Committee shall
be as fully effective as if made by a majority vote at a meeting duly called
and held. The Committee shall consist of at least two (2) Directors and may
consist of the entire Board; provided, however, that (A) if the Committee
consists of less than the entire Board, each member shall be a Nonemployee
Director and (B) to the extent necessary for any Option intended to qualify as
Performance-Based Compensation to so qualify, each member of the Committee,
whether or not it consists of the entire Board, shall be an Outside Director.
For purposes of the preceding sentence, if one or more members of the
Committee is not a Nonemployee Director and an Outside Director but recuses
himself or herself or abstains from voting with respect to a particular action
taken by the Committee, then the Committee, with respect to that action, shall
be deemed to consist only of the members of the Committee who have not recused
themselves or abstained from voting.
10(l)-3
3.2 No member of the Committee shall be liable for any action, failure to
act, determination or interpretation made in good faith with respect to the
Plan or any transaction hereunder. The Company hereby agrees to indemnify each
member of the Committee for all costs and expenses and, to the extent
permitted by applicable law, any liability incurred in connection with
defending against, responding to, negotiating for the settlement of or
otherwise dealing with any claim, cause of action or dispute of any kind
arising in connection with any actions in administering the Plan or in
authorizing or denying authorization to any transaction hereunder.
3.3 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Options shall be granted
under the Plan and the number of such Options to be granted and to prescribe
the terms and conditions (which need not be identical) of each such Option,
including the exercise price per Share subject to each Option, and make any
amendment or modification to any Agreement consistent with the terms of the
Plan;
(b) to construe and interpret the Plan and any Agreements granted
hereunder and to establish, amend and revoke rules and regulations for the
administration of the Plan, including, but not limited to, correcting
any defect or supplying any omission, or reconciling any inconsistency in the
Plan or in any Agreement, in the manner and to the extent it shall deem
necessary or advisable, including so that the Plan complies with Rule 16b-3
under the Exchange Act, the Code to the extent applicable and other applicable
law, and otherwise to make the Plan fully effective. All decisions and
determinations by the Committee in the exercise of this power shall be final,
binding and conclusive upon the Company, its Subsidiaries, the Optionees, and
all other persons having any interest therein;
(c) to determine the duration and purposes for leaves of absence which
may be granted to an Optionee on an individual basis without constituting a
termination of employment or service for purposes of the Plan;
(d) to exercise its discretion with respect to the powers and rights
granted to it as set forth in the Plan; and
(f) generally, to exercise such powers and to perform such acts as are
deemed necessary or advisable to promote the best interests of the Company
with respect to the Plan.
4. Stock Subject to the Plan; Grant Limitations.
4.1 The maximum number of Shares that may be made the subject of Options
granted under the Plan is 250,000. The maximum number of Shares that may be
the subject of Options granted to any Eligible Individual during any three (3)
consecutive calendar year period may not exceed 100,000 Shares. Upon a Change
in Capitalization, the maximum number of Shares referred to in the first two
sentences of this Section 4.1 shall be adjusted in number and kind pursuant to
Section 7. The Company shall reserve for the purposes of the Plan, out of its
authorized but unissued Shares or out of Shares held in the Company's
treasury, or partly out of each, such number of Shares as shall be determined
by the Board.
4.2 Upon the granting of an Option, the number of Shares available under
Section 4.1 for the granting of further Options shall be reduced by the number
of Shares in respect of which the Option is granted; provided, however, that
if any Option is exercised by tendering Shares, either actually or by
attestation, to the Company as full or partial payment of the exercise price,
the maximum number of Shares available under Section 4.1 shall be increased by
the number of Shares so tendered.
10(l)-4
4.3 Whenever any outstanding Option or portion thereof expires, is
canceled, is settled in cash (including the settlement of tax withholding
obligations using Shares) or is otherwise terminated for any reason without
having been exercised or payment having been made in respect of the entire
Option, the Shares allocable to the expired, canceled, settled or otherwise
terminated portion of the Option may again be the subject of Options granted
hereunder.
5. Option Grants for Eligible Individuals.
5.1 Authority of Committee. Subject to the provisions of the Plan, the
Committee shall have full and final authority to select those Eligible
Individuals who will receive Options, and the terms and conditions of the
grant to such Eligible Individuals shall be set forth in an Agreement.
5.2 Exercise Price. The purchase price or the manner in which the
exercise price is to be determined for Shares under each Option shall be
determined by the Committee and set forth in the Agreement; provided, however,
that the exercise price per Share under each Incentive Stock Option shall not
be less than 100% of the Fair Market Value of a Share on the date the Option
is granted (110% in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder).
5.3 Maximum Duration. Options granted hereunder shall be for such term as
the Committee shall determine, provided that an Incentive Stock Option shall
not be exercisable after the expiration of ten (10) years from the date it is
granted (five (5) years in the case of an Incentive Stock Option granted to a
Ten-Percent Stockholder) and a Nonqualified Stock Option shall not be
exercisable after the expiration of ten (10) years from the date it is
granted; provided, however, that the Committee may provide that an Option
(other than an Incentive Stock Option) may, upon the death of the Optionee, be
exercised for up to one (1) year following the date of the Optionee's death
even if such period extends beyond ten (10) years from the date the Option is
granted. The Committee may, subsequent to the granting of any Option, extend
the term thereof, but in no event shall the term as so extended exceed the
maximum term provided for in the preceding sentence.
5.4 Vesting. Each Option shall become exercisable in such installments
(which need not be equal) and at such times as may be designated by the
Committee and set forth in the Agreement. To the extent not exercised,
installments shall accumulate and be exercisable, in whole or in part, at any
time after becoming exercisable, but not later than the date the Option
expires. The Committee may accelerate the exercisability of any Option or
portion thereof at any time.
5.5 Deferred Delivery of Option Shares. The Committee may, in its
discretion, permit Optionees to elect to defer the issuance of Shares upon the
exercise of one or more Nonqualified Stock Options granted pursuant to the
Plan. The terms and conditions of such deferral shall be determined at the
time of the grant of the Option or thereafter and shall be set forth in the
Agreement evidencing the grant.
5.6 Limitations on Incentive Stock Options. To the extent that the
aggregate Fair Market Value (determined as of the date of the grant) of Shares
with respect to which Incentive Stock Options granted under the Plan and
"incentive stock options" (within the meaning of Section 422 of the Code)
granted under all other plans of the Company or its Subsidiaries (in either
case determined without regard to this Section 5.6) are exercisable by an
Optionee for the first time during any calendar year exceeds $100,000, such
Incentive Stock Options shall be treated as Nonqualified Stock Options. In
applying the limitation in the preceding sentence in the case of multiple
Option grants, Options which were intended to be Incentive Stock Options shall
be treated as Nonqualified Stock Options according to the order in which they
were granted such that the most recently granted Options are first treated as
Nonqualified Stock Options.
10(l)-5
5.7 Non-Transferability. No Option shall be transferable by the Optionee
otherwise than by will or by the laws of descent and distribution or, in the
case of an Option other than an Incentive Stock Option, pursuant to a domestic
relations order (within the meaning of Rule 16a-12 promulgated under the
Exchange Act), and an Option shall be exercisable during the lifetime of such
Optionee only by the Optionee or his or her guardian or legal representative.
Notwithstanding the foregoing, the Committee may set forth in the Agreement
evidencing an Option (other than an Incentive Stock Option) at the time of
grant or thereafter, that the Option may be transferred to a Permitted
Transferee, and for purposes of the Plan, such Permitted Transferee shall be
deemed to be the Optionee. The terms of an Option shall be final, binding and
conclusive upon the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
5.8 Method of Exercise. The exercise of an Option shall be made only by a
written notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of Shares
to be exercised and, to the extent applicable, accompanied by payment therefor
and otherwise in accordance with the Agreement pursuant to which the Option
was granted. The exercise price for any Shares purchased pursuant to the
exercise of an Option shall be paid, as determined by the Committee in its
discretion, in either of the following forms (or any combination thereof): (a)
cash or (b) the transfer, either actually or by attestation, to the Company of
Shares upon such terms and conditions as determined by the Committee. In
addition, Options may be exercised through a registered broker-dealer pursuant
to such cashless exercise procedures which are, from time to time, deemed
acceptable by the Committee. Any Shares transferred to the Company (or
withheld upon exercise) as payment of the exercise price under an Option shall
be valued at their Fair Market Value on the day preceding the date of exercise
of such Option. If requested by the Committee, the Optionee shall deliver the
Agreement evidencing the Option to the Secretary of the Company who shall
endorse thereon a notation of such exercise and return such Agreement to the
Optionee. No fractional Shares (or cash in lieu thereof) shall be issued upon
exercise of an Option and the number of Shares that may be purchased upon
exercise shall be rounded to the nearest number of whole Shares.
5.9 Rights of Optionees. No Optionee shall be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (a) the
Option shall have been exercised pursuant to the terms thereof, (b) the
Company shall have issued and delivered Shares to the Optionee, and (c) the
Optionee's name shall have been entered as a stockholder of record on the
books of the Company. Thereupon, the Optionee shall have full voting, dividend
and other ownership rights with respect to such Shares, subject to such terms
and conditions as may be set forth in the applicable Agreement.
6. Effect of a Termination of Employment.
The Agreement evidencing the grant of each Option shall set forth the
terms and conditions applicable to such Option upon a termination or change in
the status of the employment of the Optionee by the Company or a Subsidiary or
a Division (including a termination or change by reason of the sale of a
Subsidiary or a Division), which shall be as the Committee may, in its
discretion, determine at the time the Option is granted or thereafter.
7. Adjustments.
7.1 In the event of a Change in Capitalization, the liquidation or
dissolution of the Company or a merger or consolidation of the Company, the
Committee shall conclusively determine the appropriate adjustments, if any, to
(i) the maximum number and class of Shares or other stock or securities with
respect to which Options may be granted under the Plan, (ii) the maximum
number and class of Shares or other stock or securities with respect to which
Options may be granted to any Eligible Individual during any three (3)
consecutive calendar year period and (iii) the number and class of Shares or
other stock or securities which are subject to outstanding Options granted
under the Plan and the exercise price therefor, if applicable.
10(l)-6
7.2 Any such adjustment in the Shares or other stock or securities
subject to outstanding Incentive Stock Options (including any adjustments in
the exercise price) shall be made in such manner as not to constitute a
modification as defined by Section 424(h)(3) of the Code and only to the
extent otherwise permitted by Sections 422 and 424 of the Code.
7.3 If, by reason of a Change in Capitalization, an Optionee shall be
entitled to exercise an Option with respect to new, additional or different
shares of stock or securities, such new, additional or different shares shall
thereupon be subject to all of the conditions, restrictions and performance
criteria which were applicable to the Shares subject to the Option prior to
such Change in Capitalization.
8. Interpretation.
8.1 The Plan is intended to comply with Rule 16b-3 promulgated under the
Exchange Act and the Committee shall interpret and administer the provisions
of the Plan or any Agreement in a manner consistent therewith. Any provisions
inconsistent with such rule shall be inoperative and shall not affect the
validity of the Plan.
9. Termination and Amendment of the Plan or Modification of Options.
9.1 Plan Amendment or Termination. The Plan shall terminate on the day
preceding the tenth anniversary of the date of its adoption by the Board and
no Option may be granted thereafter. The Board may sooner terminate the Plan
and the Board may at any time and from time to time amend, modify or suspend
the Plan; provided, however, that:
(a) no such amendment, modification, suspension or termination shall
impair or adversely alter any Options theretofore granted under the Plan,
except with the consent of the Optionee, nor shall any amendment,
modification, suspension or termination deprive any Optionee of any Shares
which he or she may have acquired through or as a result of the Plan; and
(b) to the extent necessary under any applicable law, regulation or
exchange requirement, no amendment shall be effective unless approved by the
stockholders of the Company in accordance with applicable law, regulation or
exchange requirement.
9.2 Modification of Options. No modification of an Option shall adversely
alter or impair any rights or obligations under the Option without the consent
of the Optionee.
10. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed as amending,
modifying or rescinding any previously approved incentive arrangement or as
creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without
limitation, the granting of stock options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific
cases.
11. Limitation of Liability.
10(l)-7
As illustrative of the limitations of liability of the Company, but not
intended to be exhaustive thereof, nothing in the Plan shall be construed to:
(a) give any person any right to be granted an Option other than at the
sole discretion of the Committee;
(b) give any person any rights whatsoever with respect to Shares except
as specifically provided in the Plan;
(c) limit in any way the right of the Company or any Subsidiary to
terminate the employment or service of any person at any time; or
(d) be evidence of any agreement or understanding, expressed or implied,
that the Company will employ any person at any particular rate of compensation
or for any particular period of time.
12. Regulations and Other Approvals; Governing Law.
12.1 Except as to matters of federal law, the Plan and the rights of all
persons claiming hereunder shall be construed and determined in accordance
with the laws of the State of Delaware without giving effect to conflicts of
laws principles thereof.
12.2 The obligation of the Company to sell or deliver Shares with respect
to Options granted under the Plan shall be subject to all applicable laws,
rules and regulations, including all applicable federal and state securities
laws, and the obtaining of all such approvals by governmental agencies as may
be deemed necessary or appropriate by the Committee.
12.3 The Board may make such changes as may be necessary or appropriate
to comply with the rules and regulations of any government authority, or to
obtain for Eligible Individuals granted Incentive Stock Options the tax
benefits under the applicable provisions of the Code and regulations
promulgated thereunder.
12.4 Each Option is subject to the requirement that, if at any time the
Committee determines, in its discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the issuance of
Shares, no Options shall be granted or payment made or Shares issued, in whole
or in part, unless listing, registration, qualification, consent or approval
has been effected or obtained free of any conditions as acceptable to the
Committee.
12.5 Notwithstanding anything contained in the Plan or any Agreement to
the contrary, in the event that the disposition of Shares acquired pursuant to
the Plan is not covered by a then current registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, such Shares shall be restricted
against transfer to the extent required by the Securities Act and Rule 144 or
other regulations thereunder. The Committee may require any individual
receiving Shares pursuant to an Option granted under the Plan, as a condition
precedent to receipt of such Shares, to represent and warrant to the Company
in writing that the Shares acquired by such individual are acquired without a
view to any distribution thereof and will not be sold or transferred other
than pursuant to an effective registration thereof under said Act or pursuant
to an exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any of such
Shares shall be appropriately amended to reflect their status as restricted
securities as aforesaid.
10(l)-8
13. Miscellaneous.
13.1 Multiple Agreements. The terms of each Option may differ from other
Options granted under the Plan at the same time, or at some other time. The
Committee may also grant more than one Option to a given Eligible Individual
during the term of the Plan, either in addition to, or in substitution for,
one or more Options previously granted to that Eligible Individual.
13.2 Withholding of Taxes.
(a) At such times as an Optionee recognizes taxable income in connection
with the receipt of Shares hereunder (a "Taxable Event"), the Optionee shall
pay to the Company an amount equal to the federal, state and local income
taxes and other amounts as may be required by law to be withheld by the
Company in connection with the Taxable Event (the "Withholding Taxes") prior
to the issuance of such Shares. The Company shall have the right to deduct
from any payment of cash to an Optionee an amount equal to the Withholding
Taxes in satisfaction of the obligation to pay Withholding Taxes. The
Committee may provide in the Agreement, at the time of grant or at any time
thereafter, that the Optionee, in satisfaction of the obligation to pay
Withholding Taxes, may elect to have withheld a portion of the Shares then
issuable to him or her having an aggregate Fair Market Value equal to the
Withholding Taxes.
(b) If an Optionee makes a disposition, within the meaning of Section
424(c) of the Code and regulations promulgated thereunder, of any Share or
Shares issued to such Optionee pursuant to the exercise of an Incentive Stock
Option within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the date of
transfer of such Share or Shares to the Optionee pursuant to such exercise,
the Optionee shall, within ten (10) days of such disposition, notify the
Company thereof, by delivery of written notice to the Company at its principal
executive office.
13.3 Stockholder Approval. This Plan and all Options granted under the
Plan are subject to the approval of the Plan by the affirmative vote of the
holders of a majority of the common stock of the Company present or
represented and entitled to vote at a meeting of stockholders duly held in
accordance with the applicable laws of the State of Delaware (or by written
consent of the holders of a majority of the outstanding common stock of the
Company) within twelve (12) months of the adoption of the Plan by the Board.
10(l)-9