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EXHIBIT 10.33
FACILICOM INTERNATIONAL, INC.
1999 SPECIAL STOCK OPTION PLAN
1. Definitions.
The terms defined in this Section 1 shall have, for all purposes of
this Plan (unless the context requires otherwise), the meanings herein
specified:
(a) "Administrative Committee" shall mean such one or more persons who
shall have been appointed in accordance with Section 3.
(b) "Affiliate" shall mean with respect to any person, any individual
or entity directly or indirectly controlling, controlled by or under common
control with such person, and such term shall include any individual who is an
officer, director or employee of either any such person or any Affiliate of such
person. As used in the immediately preceding sentence, the term "control" means,
with respect to an entity, the right to exercise, directly or indirectly, a
majority of the voting rights attributable to such entity, and the term
"majority" means more than fifty percent (50%).
(c) "Board" shall mean, prior to the Merger, the board of directors of
the Corporation and, after consummation of the Merger, the board of directors of
World Access.
(d) "Common Stock" shall mean the Common Stock of World Access.
(e) "Conversion Unit" shall mean a right granted by the Corporation
pursuant to this Plan which, upon the consummation of the Merger, shall
automatically and without further action by the Optionee, the Corporation or
World Access, become and be converted into an Option with respect to one share
of the Common Stock of World Access.
(f) "Corporation" shall mean FACILICOM INTERNATIONAL, INC., a Delaware
corporation, and its successors.
(g) "Disabled Optionee" shall mean an Optionee who becomes disabled
within the meaning of Section 422(c)(6) of the Internal Revenue Code of 1986, as
amended.
(h) "Employee" or "Employees" shall mean, depending upon the context,
any one or more persons employed by the Corporation, or a Subsidiary thereof, on
a full-time basis and who are compensated for such employment by a regular
salary.
(i) "Fair Market Value" shall have the meaning given that term in
Section 6(F) hereof.
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(j) "Merger" shall mean the merger of the Corporation with and into
World Access as contemplated by and in accordance with the terms of the Merger
Agreement.
(k) "Merger Agreement" shall mean that certain Agreement and Plan of
Merger Agreement dated as of August 17, 1999 and entered into among World
Access, the Corporation and the Corporation's shareholders, as the same may
hereafter be amended or modified.
(l) " Option" shall mean a right, existing after the consummation of
the Merger and pursuant to the conversion of a Conversion Unit, to purchase a
specified number of shares of Common Stock of World Access. The Options granted
hereunder are intended to be non-qualified stock options which are options other
than Incentive Stock Options as defined in Section 422 of the Internal Revenue
Code of 1986, as amended.
(m) "Optionee" shall mean a person who accepts a Conversion Unit
granted under this Plan.
(n) "Option Price" shall mean $15 per share for each share of Common
Stock purchased pursuant to a Stock Option Agreement.
(o) "Option Period" shall mean the period from the date of the
consummation of the Merger to the date after which an Option may no longer be
exercised. Nothing in this Plan shall be construed to extend the termination
date of the Option Period beyond the date set forth in the Stock Option
Agreement.
(p) "Plan" shall mean this FaciliCom International, Inc. 1999 Special
Stock Option Plan.
(q) "Stock Option Agreement" shall mean the written agreement between
the Corporation and an Optionee confirming the grant of one or more Conversion
Units and setting forth the terms and conditions upon which the Option(s) to be
created upon the conversion thereof may be exercised.
(r) "Subsidiary" shall mean with respect to an entity, any corporation,
partnership, business trust, joint venture or other business entity in which the
such entity owns, directly or indirectly through Subsidiaries, at least 50% of
the beneficial interests or total combined voting power of all classes of
equity.
(s) "World Access" means WORLD ACCESS, INC., a Delaware corporation,
and its successors, Subsidiaries and Affiliates.
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2. Purposes.
The purposes of this Plan are to enable key Employees to benefit from
the growth in value of the Corporation and its Subsidiaries as reflected by the
Merger and to enable World Access to retain personnel in positions of
substantial responsibility and to give them an additional incentive to increase
their efforts on behalf of World Access and its Subsidiaries.
3. Administration.
This Plan shall be administered by the Administrative Committee. The
Administrative Committee shall be appointed by the Board. Prior to the
consummation of the Merger, the Administrative Committee shall consist of one or
more, but not more than three, members of the Board. Following the consummation
of the Merger, the Administrative Committee shall consist of that number of and
those persons as shall be appointed by World Access in accordance with its
governing instruments.
The Administrative Committee shall act by majority vote and shall have
plenary authority in its discretion, subject to and not inconsistent with the
express provisions of this Plan, (i) to grant Conversion Units, to determine the
term of each Conversion Unit, the persons to whom and the time or times at which
Conversion Units shall be granted, and the number of whole and/or fractional
shares of Common Stock Options for the purchase of which such Conversion Units
shall be converted; (ii) to interpret this Plan; (iii) to prescribe, amend and
rescind rules and regulations relating to this Plan; (iv) to determine the terms
and provisions of the Stock Option Agreements (which need not be identical)
entered into in connection with awards under this Plan; and (v) to make all
other determinations (including factual determinations) deemed necessary or
advisable for the administration of this Plan. The Administrative Committee may
delegate to one or more of its members or to one or more agents such
administrative duties as it may deem advisable, and the Administrative Committee
or any person to whom it has delegated duties as aforesaid may employ one or
more persons to render advice with respect to any responsibility or authority
the Administrative Committee or such person may have under this Plan. No grant
of a Conversion Unit shall be made to a member of the Administrative Committee.
The Administrative Committee may employ attorneys,
consultants, accountants or other persons, and the Administrative Committee, the
Corporation, World Access and their respective officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Administrative Committee in good faith shall be final and binding upon all
persons who have received Conversion Units, the Corporation, World Access and
all other interested persons. No member or agent of the Administrative Committee
shall be personally liable for any action, determination or interpretation taken
or made in good faith with respect to this Plan or awards made thereunder, and
all members and agents of the Administrative Committee shall be fully
indemnified and protected by the Corporation (prior to the Merger) and World
Access (following consummation of the Merger) in respect of any such action,
determination or interpretation.
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4. Eligibility.
Subject to the provisions of this Plan, the Administrative Committee
shall determine and designate from time to time those key Employees of the
Corporation or its Subsidiaries to whom Conversion Units are to be granted and
the number of shares of Common Stock covered by such grants. In determining the
eligibility of a key Employee to receive a Conversion Unit, as well as in
determining the number of shares of Common Stock covered by such Conversion
Unit, the Administrative Committee shall consider the position and
responsibilities of such person, the nature and value to the Corporation or a
Subsidiary of his or her services and accomplishments, his or her present and
potential contribution to the success of World Access or its Subsidiaries and
such other factors as the Administrative Committee may deem relevant.
5. Shares Available under this Plan.
The aggregate number of shares of Common Stock which may be issued or
delivered and as to which Conversion Units may be granted under this Plan is
2,000,000 shares. All such shares are subject to adjustment and substitution as
set forth in Section 7. If any Conversion Unit granted under this Plan is
canceled by mutual consent or terminates or expires for any reason prior to the
consummation of the Merger without having been exercised in full, the shares of
Common Stock subject to such Conversion Unit shall again be available for
purposes of this Plan.
The shares of Common Stock which may be issued or delivered under this
Plan may be either authorized but unissued shares or repurchased shares or
partly each, as shall be determined from time to time by the Board of World
Access.
6. Terms and Conditions of Conversion Units and Options.
Conversion Units, and the Options into which they may be converted,
shall be subject to the following terms and conditions:
(A) The Option Price shall be payable in full in any
one or more of the following ways:
(i) in full in cash or in any combination
of cash and installment payments as may be determined
by the Administrative Committee; and/or
(ii) subject to the consent of the
Administrative Committee, in shares of Common Stock
(which are owned by the Optionee free and clear of
all liens and other encumbrances) having a Fair
Market Value on the date of exercise of the Option
which is equal to the Option Price for the shares
being purchased.
If the Option Price is paid in whole or in part in
shares of Common Stock, any portion of the Option Price
representing a fraction of a share shall be paid in
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cash. The cash. The date of exercise of an Option shall be
determined under procedures established by the Administrative
Committee, and the Option Price shall be payable at such time
or times as the Administrative Committee, in its discretion,
shall determine. No shares shall be issued or delivered upon
exercise of an Option until full payment of the Option Price
has been made. When full payment of the Option Price has been
made, the Optionee shall be considered for all purposes to be
the owner of the shares with respect to which payment has been
made. Payment of the Option Price with shares shall not
increase the number of shares of Common Stock which may be
issued or delivered under this Plan as provided in Section 5.
(B) No Option shall be exercisable after the
expiration of ten years and six months from the consummation
of the Merger. Subject to this Section 6(B) and Sections 6(D),
6(E) and 6(F), Options may be exercised at such times, in such
amounts and subject to such restrictions as shall be
determined, in its discretion, by the Administrative
Committee.
(C) An Optionee may not transfer a Conversion Unit or
Option, or any portion thereof, without the prior written
consent of the Administrative Committee.
(D) As to those Optionees who become employees of
World Access, unless otherwise determined by the
Administrative Committee and set forth in the Stock Option
Agreement:
(i) If the employment of an Optionee
(whether or not a Disabled Optionee) with World
Access is voluntarily terminated with the written
consent of World Access, or if an Optionee retires
under any retirement plan of World Access, any
then-outstanding Option held by such Optionee shall
be exercisable (to the extent exercisable on the date
of such event) by such Optionee (or, if applicable,
by such Optionee's permitted transferee) at any time
prior to the expiration date of such Option or within
three months after the date of such event, whichever
is the shorter period;
(ii) Following the death of an Optionee
during employment with World Access, any
then-outstanding Option held by such Optionee at the
time of death shall be exercisable in full (whether
or not so exercisable on the date of the death of
such Optionee) by the person or persons entitled to
do so under the will of the Optionee (or, if
applicable, by such Optionee's permitted transferee),
or, if the Optionee shall fail to make testamentary
disposition of such Option or shall die intestate, by
the legal representative of the estate of such
Optionee, at any time prior to the expiration date of
such Option or within nine months after the date of
death, whichever is the shorter period. Following the
death of an Optionee
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after termination of employment with World Access
during a period when an Option is exercisable as
provided in clause (i) above, any then-outstanding
Option held by the Optionee (or, if applicable, by
such Optionee's permitted transferee) at the time of
death shall be exercisable by such person or persons
entitled to do so under the Will of the Optionee or
by such Optionee's legal representative (or by such
transferee) to the extent that such Option was
exercisable by the Optionee (or, if applicable, by
such Optionee's permitted transferee) at the time of
death at any time prior to the expiration date of
such Option or within nine months after the date of
death, whichever is the shorter period;
(iii) If the employment of an Optionee is
terminated by World Access without cause, any
then-outstanding Option held by such Optionee (or, if
applicable, by such Optionee's permitted transferee)
shall be exercisable (to the extent exercisable on
the date of termination of employment) by such
Optionee (or, if applicable, by such Optionee's
permitted transferee) at any time prior to the
expiration date of such Option or within 30 days
after the date of termination of employment,
whichever is the shorter period; and
(iv) If the employment of an Optionee is
terminated by World Access with cause, the rights of
such Optionee (or, if applicable, by such Optionee's
permitted transferee) under any then-outstanding
Option shall terminate at the time of such
termination of employment. In addition, if an
Optionee engages in the operation or management of a
business, whether as owner, partner, officer,
director, employee or otherwise and whether during or
after termination of employment, which is in
competition with World Access, the Administrative
Committee may in its discretion immediately terminate
all Options held by the Optionee (or, if applicable,
by such Optionee's permitted transferee). For
purposes of this subsection (D), the following events
or circumstances shall constitute "cause", to wit:
perpetration of defalcations; willful, reckless or
grossly negligent conduct entailing a substantial
violation of any material laws or governmental
regulations or orders applicable to World Access; or
repeated and deliberate failure, after written
notice, to comply with policies or directives of the
Chief Executive Officer of World Access or of the
Board.
Whether termination of employment is a voluntary termination
with the written consent of, or an involuntary termination for
cause from, World Access, whether an Optionee is a Disabled
Optionee and whether an Optionee has engaged in the operation
or management of a business which is in competition with World
Access shall be determined in each case by the Administrative
Committee, and any such determination by the Administrative
Committee shall be final and binding.
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(E) All Conversion Units granted hereunder and all
Options into which such Conversion Units may be converted
shall be effective solely upon the delivery of a Stock Option
Agreement, or an amendment thereto, duly executed by the Chief
Executive Officer of the Corporation on behalf of the
Corporation and by the Employee to whom such Conversion Units
are granted.
(F) Fair Market Value of the Common Stock shall be
determined (as of a date not more than 12 months preceding the
date as of which such determination is required to be made
hereunder) in good faith by the Board. The Board shall take
into consideration such factors as it deems relevant, which
factors may include but are not limited to (i) the World
Access' past, current and expected profitability, (ii) the
World Access' past, present and expected revenues and net cash
flow, (iii) World Access' book value, and (iv) the absence of
an organized tracking market for shares of the Common Stock.
(G) The obligation of World Access to issue or
deliver shares of Common Stock under this Plan shall be
subject to (i) the effectiveness of a registration statement
under the Securities Act of 1933, as amended, with respect to
such shares, if deemed necessary or appropriate by counsel for
World Access and (ii) all other applicable securities laws,
regulations, rules and orders which may then be in effect.
Subject to the foregoing provisions of this Section 6 and the other
provisions of this Plan, any Conversion Unit granted under this Plan and any
Option into which the same may be converted shall be subject to such other terms
and conditions as the Administrative Committee shall deem advisable.
7. Adjustment and Substitution of Shares.
If there is any change in the Common Stock by reason of any stock
split, stock dividend, spin-off, split-up, spin-out, recapitalization, merger,
consolidation, reorganization, combination or exchange of shares, or any similar
transactions, the number of shares available for grant hereunder or subject to
or granted pursuant to this Plan or any Stock Option Agreement and the price
thereof, as applicable, shall be appropriately and equitably adjusted by the
Administrative Committee.
8. Restrictions on Transfer of Certain Shares.
World Access is authorized to (i) retain the certificate(s)
representing shares or place such certificates in the custody of its transfer
agent, (ii) place a restrictive legend on such certificates, and/or (iii) issue
a stop transfer order to the transfer agent with respect to shares in order to
enforce the transfer restrictions of Section 6(G) hereof.
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9. Acceleration of the Exercise Date of Options.
Notwithstanding any other provisions of this Plan, all Options shall
become exercisable upon the occurrence of a Change in Control of World Access
whether or not such Options are then exercisable under the provisions of the
Stock Option Agreements relating thereto. A Change in Control of World Access is
any of the following: (i) a merger, consolidation or other reorganization in
which World Access (x) is not the surviving entity or (y) survives only as a
subsidiary of any entity (other than an entity which is under the control (as
defined in Section 1(b)) of any one or more of the shareholders of World Access
as of the effective date, and their respective Affiliates or other than a
previously wholly-owned Subsidiary of World Access), (ii) the acquisition by any
person, entity or affiliated group of persons and entities (other than any one
or more of the shareholders of World Access as of the effective date, and their
respective Affiliates) of 50% or more of the combined voting power of World
Access' then outstanding securities (including securities exercisable for or
convertible into voting securities), or (iii) the consummation of a transaction
requiring shareholder approval and involving the sale, lease or exchange of all
or substantially all the assets of World Access.
10. Effect of this Plan on the Rights of Employees and Employer.
Neither the adoption of this Plan nor any action of the Board or the
Administrative Committee pursuant to this Plan shall be deemed to give any
Employee any right to be granted a Conversion Unit or an Option under this Plan,
and nothing in this Plan, in any Conversion Unit granted under this Plan, in any
Option into which the same may be converted or in any Stock Option Agreement
shall confer any right to any Employee to continue in the employment of the
Corporation or any Subsidiary or World Access or interfere in any way with the
rights of the Corporation or any Subsidiary or World Access to terminate the
employment of any Employee at any time.
11. Interpretation, Amendment, and Termination.
Except as provided elsewhere in this Plan, in the event of any dispute
or disagreement as to the interpretation of this Plan or of any rule, regulation
or procedure, or as to any question, right or obligation arising from or related
to this Plan, the decision of the Board shall be final and binding upon all
persons. The Board may, in its discretion, amend or terminate this Plan at any
time. The Board of the Corporation may not, without the consent of World Access,
(a) increase the total number of shares which may be issued or delivered under
this Plan, (b) otherwise materially increase the benefits accruing to Employees
under this Plan. Termination of this Plan shall not affect the rights of
Optionees or their successors under any Conversion Units or Options outstanding
and not exercised in full on the date of termination.
12. Withholding Taxes.
The Corporation unilaterally or by arrangement with the Optionee shall
make appropriate provision for satisfaction of any obligation to withhold taxes
in the case of any grant, award, exercise or other transaction which gives rise
to a withholding requirement. An Optionee or
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other person receiving shares issued upon exercise of an Option shall be
required to pay World Access in cash the amount of any taxes which World Access
is required to withhold.
Notwithstanding the preceding sentence and subject to such rules as the
Administrative Committee may adopt, Optionees who are subject to Section 16(b)
of the Securities Exchange Act of 1934, as amended, and, if determined by the
Administrative Committee, other Optionees, may satisfy the referenced tax
payment obligation, in whole or in part, by election on or before the date that
the amount of tax required to be withheld is determined, to have the number of
shares received upon exercise of the Option reduced by a number of shares.
13. Effective Date and Termination.
This Plan shall be effective as of September 30, 1999.
This Plan has been adopted in contemplation of the consummation of the
Merger. If the Merger is not consummated in accordance with the Merger
Agreement, as the same may be amended, then upon the earliest to occur of (i)
the termination of the Merger Agreement, (ii) a public announcement to the
effect that the Merger will not be consummated or (iii) upon the occurrence of
any other event by which the possibility of the consummation of the Merger is
irrevocably terminated, this Plan and all Conversion Units granted hereunder
shall forthwith and without further action by the Corporation or any Optionee be
and become terminated, void and of no further force or effect, and no Optionee
shall be entitled to any compensation or remuneration in respect of any
previously granted Conversion Unit.
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