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EXHIBIT 10.14
GLOBAL TELESYSTEMS GROUP, INC.
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
February 10, 1998
[Share amounts reflect 3-for-2 stock split that took effect December 1, 1997.]
1. Purpose of the Plan.
The purpose of this Plan is to permit Eligible Directors of the Company
to share in the growth of the value of the Company through the grant and
exercise of Options.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as set
forth below:
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
"Common Stock" means the Common Stock of the Company, par value $.10
per share.
"Company" means Global TeleSystems Group, Inc., a Delaware corporation,
including any wholly owned subsidiary or affiliate, or any successor
organization.
"Disability" means permanent and total disability within the meaning of
Section 22(e)(3) of the Code.
"Eligible Director" means a person who is a non-employee member of the
Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the fair market value of the Common Stock as
determined objectively by the Board, in good faith, using such criteria as it
deems relevant; provided, however, that where there is a public market for the
Common Stock, the fair market value per Share shall be the average of the last
reported bid and asked prices of the Common Stock on the date of grant, as
reported in The Wall Street Journal (or, if not so reported, as otherwise
reported by the National Association of Securities Dealers Automated Quotation
("NASDAQ") System) or, in the event the Common Stock is listed on a national
securities exchange, within the meaning of Section 6 of the Exchange Act, the
fair market value per Share shall be the closing price on such exchange on the
date of grant of the Option, as reported in The Wall Street Journal.
"Incentive Stock Option" means any Option intended to be designated as
an "incentive stock option" within the meaning of Section 422 of the Code.
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"Nonqualified Stock Option" means any Option that is not an Incentive
Stock Option.
"Option" means any option to purchase shares of the Common Stock of the
Company granted pursuant to this Plan.
"Option Agreement" means a written agreement between the Company and
the Optionee regarding the grant and exercise of Options to purchase shares of
Common Stock and the terms and conditions thereof.
"Optionee" means an Eligible Director who receives an Option under the
Plan.
"Plan" means this Company's Amended and Restated Non-Employee
Directors' Stock Option Plan, as amended from time to time.
"Rules" means the regulations promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
Except where otherwise indicated by the context, any masculine
terminology used herein shall also include the feminine and vice versa, and the
definition of any term herein in the singular shall also include the plural and
vice versa.
3. Stock Subject to the Plan.
(a) Aggregate Number of Shares. The aggregate number of shares of
Common Stock that may be issued or transferred under the Plan is 1,275,000,
subject to adjustment pursuant to Section 3(b) below. Such shares may include
authorized but unissued shares of Common Stock or reacquired shares of Common
Stock. In the event the number of shares of Common Stock issued under the Plan
and the number of shares of Common Stock subject to outstanding awards (taking
into account the share counting requirements established under the Rules) equals
the maximum number of shares of Common Stock authorized under the Plan, no
further awards shall be made unless the Plan is amended (in accordance with the
Rules, if necessary) or additional shares of Common Stock become available for
further awards under the Plan. If and to the extent that Options granted under
the Plan terminate, expire or are canceled without having been exercised, such
shares shall again be available for subsequent awards under the Plan.
(b) Adjustments Upon Changes in Capitalization. If any change is made
to the Common Stock (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, combination of shares or exchange
of shares or any other change in capital structure made without receipt of
consideration), then unless such event or change results in the termination of
all outstanding awards under the Plan, the Board shall preserve the value of the
outstanding awards by adjusting the maximum number and class of shares available
under the Plan to reflect the effect on such event or change in the Company's
capital structure, and by making appropriate adjustments to the number and class
of shares subject to an outstanding award or the Option price of each
outstanding Option, except that any fractional shares resulting from such
adjustments shall be eliminated by rounding any portion of a share equal to .500
or greater up, and any portion of a share equal to less than .500 down, in each
case to the nearest
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whole number.
4. Administration of the Plan.
The Plan shall be administered by the Board. Subject to the provisions
of the Plan, the Board shall be authorized to:
(a) adopt, revise and repeal such administrative rules, guidelines and
practices governing this Plan as it shall from time to time deem advisable;
(b) interpret the terms and provisions of the Plan and any Option
issued under the Plan (and any agreements relating thereto), and otherwise
settle all claims and disputes arising under the Plan;
(c) delegate responsibility and authority for the operation and
administration of the Plan, appoint employees and officers of the Company to act
on its behalf, and employ persons to assist in the fulfilling of its
responsibilities under the Plan; and
(d) otherwise supervise the administration of the Plan; provided,
however, that the Board shall have no discretion with respect to the selection
of Eligible Directors to receive Options hereunder, the number of shares of
Common Stock covered by such Option or the price or timing of any Options
granted hereunder; provided, further, that any action by the Board relating to
the Plan will be taken only if approved by the affirmative vote of a majority of
the directors who are not then eligible to participate under the Plan.
5. Option Grants.
(a) Number of Options Granted. The following number of Options are
hereby granted to each Eligible Director under the Plan:
Initial Grant
(i) As of the effective date of the Plan, an Option to purchase
18,000 shares of Common Stock is granted to each person who on that date is an
incumbent Eligible Director.
(ii) With respect to each person who first becomes an Eligible
Director after the effective date of the Plan but prior to February 10, 1998, an
Option to purchase 18,000 shares of Common Stock is granted as of the date such
person first becomes an Eligible Director.
(iii) With respect to each person who first becomes an Eligible
Director on or after February 10, 1998, an Option to purchase 22,500 shares of
Common Stock is granted as of the date such person first becomes an Eligible
Director.
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Subsequent Grant
(iv) As of the date of the third annual meeting of the Company's
shareholders following the grant of an Option to an Eligible Director pursuant
to subsections 5(a)(i) or (ii) above, provided the date of such third annual
meeting is prior to February 10, 1998, and provided further that such Eligible
Director remains an incumbent on such date and will serve as an Eligible
Director during the next following year, an Option to purchase 13,500 shares of
Common Stock is granted to such Eligible Director.
(v) As of the date of each annual meeting of the Company's
shareholders on or after February 10, 1998 and following the grant of an Option
to an Eligible Director pursuant to subsections 5(a)(i), (ii), or (iii) above,
provided that such Eligible Director remains an incumbent on such date and will
serve as an Eligible Director during the next following year, an Option to
purchase 9,000 shares of Common Stock is granted to such Eligible Director.
(b) Nonqualified Options. All Options granted hereunder shall be
Nonqualified Stock Options. No Option granted pursuant to this Plan may be
designated as an Incentive Stock Option.
(c) Amendments to this Section 5. Notwithstanding any other provision
of the Plan, this Section 5 may not be amended more then once every six months,
except for amendments necessary to conform the Plan to changes in the provisions
of, or the regulations relating to, the Code.
6. Terms and Conditions of Options.
(a) Option Agreement. Each Option granted hereunder shall be evidenced
by an Option Agreement.
(b) Option Price. The Option price per share of Common Stock covered by
an Option granted hereunder shall be the Fair Market Value of the Common Stock
as of the date of grant.
(c) Option Term. The term of each Option shall be ten years. No Option
shall be exercised by any person after expiration of the term of the Option.
(d) Exercisability. An Option shall be exercisable during its term,
subject to the following provisions of this Section 6(d):
(i) Initial Grants Made Prior to February 10, 1998. With respect to any
Option granted prior to February 10, 1998 to an Eligible Director pursuant to
Section 5(a)(i) or 5(a)(ii), such Option shall become exercisable with respect
to 9,000 shares of Common Stock on the date six months following the relevant
date of grant, with respect to an additional 4,500 shares on the date six months
following the first annual meeting of the Company's shareholders to occur after
such date of grant, and with respect to the final 4,500 shares on the date six
months following the second annual meeting of the Company shareholders to occur
after such date of grant.
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(ii) Initial Grants Made On Or After February 10, 1998. With respect to
any Option granted on or after February 10, 1998 to an Eligible Director
pursuant to Section 5(a)(iii), such Option shall become exercisable with respect
to 11,250 shares of Common Stock on the date six months following the relevant
date of grant, with respect to an additional 5,625 shares on the date six months
following the first annual meeting of the Company's shareholders to occur after
such date of grant, and with respect to the final 5,625 shares on the date six
months following the second annual meeting of the Company shareholders to occur
after such date of grant.
(iii) Subsequent Grants Made Prior to February 10, 1998. With respect
to any Option granted prior to February 10, 1998 to an Eligible Director
pursuant to Section 5(a)(iv), such Option shall become exercisable with respect
to 4,500 shares of Common Stock on the date six months following the relevant
date of grant, with respect to an additional 4,500 shares on the date six months
following the first annual meeting of the Company's shareholders to occur after
such date of grant, and with respect to the final 4,500 shares on the date six
months following the second annual meeting of the Company's shareholders to
occur after such date of grant.
(iv) Subsequent Grants Made On Or After February 10, 1998. With respect
to any Option granted on or after February 10, 1998 to an Eligible Director
pursuant to Section 5(a)(v), such Option shall become exercisable with respect
to 3,000 shares of Common Stock on the date six months following the relevant
date of grant, with respect to an additional 3,000 shares on the date six months
following the first annual meeting of the Company's shareholders to occur after
such date of grant, and with respect to the final 3,000 shares on the date six
months following the second annual meeting of the Company's shareholders to
occur after such date of grant.
(e) Method of Exercise. Options may be exercised, in whole or in part,
at any time and from time to time during the Option exercise period, by giving
written notice of exercise to the Company specifying the number of shares to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price, either in cash or by certified or bank check, or such other instrument as
the Board may accept. Payment in full or in part may also be made in the form of
unrestricted Common Stock already owned by the Optionee (and based upon the Fair
Market Value of the Common Stock so tendered as of the date the Option is
exercised, as determined by the Board). No shares of Common Stock shall be
issued until full payment therefor has been made. Eligible Directors shall
generally have the rights to dividends or other rights of a stockholder with
respect to shares subject to the Option when the Eligible Director has given
notice as to exercise, has paid in full for such shares and, if requested, has
given any representations required by the Board.
(f) Non-transferability. No Option shall be transferable by the
Optionee otherwise than by will, by the laws of descent and distribution,
pursuant to a qualified domestic relations order or as permitted under the
Rules, and all Options shall be exercisable, during the Optionee's lifetime,
only by the Optionee.
(g) Termination by Reason of Death. If an Optionee ceases to be an
Eligible Director by reason of death, any Option held by such Optionee may
thereafter be exercised to the extent then exercisable, by the legal
representative of the estate or by the legatee of the Optionee under
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the will of the Optionee, for a period of one year from the date of such death
or until the expiration of the stated term of such Option, whichever period is
shorter.
(h) Termination by Reason of Disability. If an Optionee ceases to be an
Eligible Director by reason of Disability, any Option held by such Optionee may
thereafter be exercised by the Optionee, to the extent it was exercisable at the
time of termination, for a period of one year from the date of such termination
or until the expiration of the stated term of such Option, whichever period is
shorter; provided, however, that if the Optionee dies within such one-year
period, any unexercised Option held by such Optionee shall thereafter be
exercisable to the extent it was exercisable at the time of death for a period
of one year from the date of such death or until the expiration of the stated
term of such Option, whichever period is shorter.
(i) Other Termination. If an Optionee ceases to be an Eligible Director
for any reason other than death or Disability (except as a result of becoming an
employee of the Company), any Option held by such Optionee may thereafter be
exercised by the Optionee, to the extent it was exercisable at the time of such
termination, for a period of three months from the date of such termination or
the expiration of the stated term of such Option, whichever period is shorter;
provided, however, that if the Optionee dies within such three-month period, any
unexercised Option held by such Optionee shall thereafter be exercisable, to the
extent to which it was exercisable at the time of death, for a period of one
year from the date of such death or until the expiration of the stated term of
the Option, whichever period is shorter. If an Optionee ceases to be an Eligible
Director by reason of his becoming an employee of the Company and his employment
with the Company is subsequently terminated, any Option held by such Optionee
may thereafter be exercised by the Optionee, to the extent that it was
exercisable at the time of such termination, for a period of three months from
the date of such termination or the expiration of the stated term of the Option,
whichever period is shorter; provided, however, that if the Optionee dies within
such three-month period, any unexercised Option held by such Optionee shall
thereafter be exercisable, to the extent to which it was exercisable at the time
of death, for a period of one year from the date of such death or until the
expiration of the stated term of the Option, whichever period is shorter.
7. Amendment and Termination.
The Board may amend, alter or discontinue the Plan at any time and from
time to time (either by resolution or unanimous consent), but no amendment,
alteration, or discontinuation shall be made which would impair the rights of an
Optionee under an Option theretofore granted, without the Optionee's consent, or
which, without the approval of the Company's stockholders, would require
stockholder approval under the Rules or under the requirements of any applicable
federal or state law or regulation; provided, however, that in no event may the
provisions of the Plan respecting eligibility to participate be amended more
frequently than once every six months, other than to comport with changes in the
Code, or the Employee Retirement Income Security Act of 1974, as amended, and
any rules or regulations thereunder; provided, further, that any amendment
which, under the requirements of applicable federal or state law or regulation
or the rules of any stock exchange or automated quotation system on which the
Common Stock may then be listed or quoted must be approved by the stockholders
of the Company, shall not be
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effective unless and until such stockholder approval has been obtained in
compliance with such law; and provided, further, that any amendment that must be
approved by the stockholders of the Company in order to maintain the continued
qualification of the Plan under Rule 16b-3(c)(2)(ii) under the Exchange Act, or
any successor provision, shall not be effective unless and until such
stockholder approval has been obtained in compliance with such Rule. The
Committee may amend the terms of any Option theretofore granted, prospectively
or retroactively, but no such amendment shall impair the rights of any Optionee
without the Optionee's consent. Notwithstanding any provision herein to the
contrary, the Board shall have broad authority to amend the Plan or any Option
to take into account changes in applicable tax laws, securities laws, accounting
rules and other applicable state and federal laws.
8. Unfunded Status of the Plan.
The Plan is intended to constitute an unfunded plan for incentive
compensation. With respect to any payments not yet made to an Optionee by the
Company, nothing contained herein shall give any such Optionee any rights that
are greater than those of a general creditor of the Company. In its sole
discretion, the Board may authorize the creation of trusts or other arrangements
to meet the obligations created under the Plan to deliver Common Stock or
payments in lieu thereof or with respect to awards hereunder.
9. General Provisions.
(a) Representations by Optionees. The Board may require each Optionee
to represent to and agree with the Company in writing that the Optionee is
acquiring the shares of Common Stock without a view to distribution thereof. The
certificates for such shares may include any legend that the Company deems
appropriate to reflect any restrictions on transfer.
(b) No Restrictions on Adoption of Other Compensation Arrangements.
Nothing contained in this Plan shall prevent the Board from adopting other or
additional compensation arrangements (subject to stockholder approval, if such
approval is required) and such arrangements may be either generally applicable
or applicable only in specific cases.
(c) No Right to Continuing Employment or Re-election. The adoption of
the Plan shall not confer upon any Optionee any right to continued employment
with the Company nor shall it interfere in any way with the right of the Company
to terminate its relationship with any of its employees, directors, or
independent contractors at any time.
(d) Tax Withholding. No later than the date as of which an amount first
becomes includable in the gross income of the Optionee for applicable income tax
purposes with respect to any award under the Plan, the Optionee shall pay to the
Company or make arrangements satisfactory to the Board regarding the payment of
any federal, state or local taxes of any kind required by law to be withheld
with respect to such amount. Unless otherwise determined by the Board, the
minimum required withholding obligations may be settled with Common Stock,
including Common Stock that is part of the award that gives rise to the
withholding requirement. The obligation of the Company under the Plan shall be
conditional upon such payment or arrangements and the Company shall to the
extent permitted by law have the right to deduct any
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such taxes from any payment of any kind otherwise due to the Optionee.
(e) Right of First Refusal. At the time of grant, the Board may provide
in connection with any grant made under this Plan that the shares of Common
Stock received as a result of such grant shall be subject to a right of first
refusal pursuant to which the Optionee shall be required to offer to the Company
any shares that the Optionee wishes to sell with the price being the then Fair
Market Value of the Common Stock, subject to such other terms and conditions as
the Board may specify at the time of grant.
(f) Designation of a Beneficiary. The Board shall establish such
procedures as it deems appropriate for an Optionee to designate a beneficiary to
whom any amounts payable in the event of the Optionee's death are to be paid.
(g) Applicable Law. The Plan shall be governed by and subject to the
laws of the State of Delaware and to all applicable laws and to the approvals by
any governmental or regulatory agency as may be required.
(h) Severability. If any provision of this Plan shall be held illegal
or invalid for any reason, such illegality or invalidity shall not affect the
remaining provisions of this Plan, but this Plan shall be construed and enforced
as if such illegal or invalid provision had never been included herein.
(i) Compliance with Rule 16b-3. It is the intent of the Company that
this Plan comply in all respects with applicable provisions of Rule 16b-3 under
the Exchange Act in connection with any grant of Options. Accordingly, if any
provision of this Plan or any agreement hereunder does not comply with the
requirements of Rule 16b-3 as then applicable to any such Optionee, or would
cause any Optionee to no longer be deemed a "disinterested person" within the
meaning of Rule 16b-3, such provision shall be construed or deemed amended to
the extent necessary to conform to such requirements with respect to such
Optionee. In addition, the Board shall have no authority to make any amendment,
alteration, suspension, discontinuation, or termination of the Plan or any
agreement hereunder to take other action if and to the extent such authority
would cause an Optionee's transactions under the Plan not to be exempt, or
Optionees no longer to be deemed "disinterested persons," under Rule 16b-3 of
the Exchange Act.
10. Effective Date and Term of the Plan.
The Plan shall be effective as of November 14, 1994. No Options shall
be granted pursuant to the Plan on or after November 14, 2004, but Options
granted prior to such date may extend beyond that date.
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