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Exhibit 4.1
SECURFONE AMERICA, INC.
1997 STOCK OPTION PLAN
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SECURFONE AMERICA, INC.
1997 STOCK OPTION PLAN
TABLE OF CONTENTS
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Page
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1. Purpose.......................................................................................1
2. Definitions...................................................................................1
3. Shares Available under the Plan...............................................................3
4. Option Rights.................................................................................3
5. Transferability...............................................................................4
6. Adjustments...................................................................................5
7. Fractional Shares.............................................................................5
8. Withholding Taxes.............................................................................5
9. Participation by Employees or Consultants of a Less-Than-80-Percent Subsidiary................5
10. Certain Terminations of Employment or Other Services, Hardship and
Approved Leaves of Absence....................................................................6
11. Foreign Participants..........................................................................6
12. Administration of the Plan....................................................................6
13. Amendments and Other Matters..................................................................7
14. Termination of the Plan.......................................................................7
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SECURFONE AMERICA, INC.
1997 STOCK OPTION PLAN
(August 27, 1997)
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1. PURPOSE. The purpose of this Plan is to attract and retain key
employees of, and advisors and consultants providing valuable services to,
Securfone America, Inc., a Delaware corporation (the "Corporation"), and its
Subsidiaries and to provide such persons with incentives and rewards for
superior performance.
2. DEFINITIONS. As used in this Plan,
"BOARD" means the Board of Directors of the Corporation.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITTEE" means the committee described in Section 12(a) of this
Plan.
"COMMON STOCK" means (i) shares of the common stock, par value $.001
per share, of the Corporation and (ii) any security into which shares of Common
Stock may be converted by reason of any transaction or event of the type
referred to in Section 6 of this Plan.
"DATE OF GRANT" means the date specified by the Board on which a grant
of Option Rights shall become effective, which shall not be earlier than the
date as of which the Board takes action with respect thereto.
"INCENTIVE STOCK OPTION" means an Option Right that is intended to
qualify as an "incentive stock option" under Section 422 of the Code or any
successor provision.
"LESS-THAN-80-PERCENT SUBSIDIARY" means a Subsidiary with respect to
which the Corporation directly or indirectly owns or controls less than 80
percent of the total combined voting or other decision-making power.
"MARKET VALUE PER SHARE" on any date of reference shall be the
"Closing Price" (as defined below) of the Common Stock on the business day
immediately preceding such date. For the purpose of determining Market Value per
Share, the "Closing Price" of the Common Stock on any business day shall be (i)
if the Common Stock is listed or admitted for trading on any United States
national securities exchange, or if actual transactions are otherwise reported
on a consolidated transaction reporting system, the last reported sale price of
Common Stock on such exchange or reporting system, as reported in any newspaper
of general circulation, (ii) if the Common Stock is quoted on the National
Association of Securities Dealers Automated Quotations ("NASDAQ") System, or any
similar system of automated dissemination of quotations of securities prices in
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common use, the mean between the closing high bid and low asked quotations for
such day of Common Stock on such system, or (iii) if neither clause (i) or (ii)
is applicable, the mean between the high bid and low asked quotations for the
Common Stock as reported by the National Quotation Bureau, Incorporated if at
least two securities dealers have inserted both bid and asked quotations for
Common Stock on at least five of the ten preceding days.
If none of clauses (i), (ii) or (iii) is applicable, the Market Value per
Share shall be the price at which one could reasonably expect a share of Common
Stock to be sold in an arm's length transaction, for cash, other than on an
installment basis, to a person not employed by, controlled by, in control of or
under common control with the Company. Such Market Value shall be that which has
currently or most recently been determined for this purpose by the Board, or at
the discretion of the Board by an independent appraiser or appraisers selected
by the Board, in either case giving due consideration to recent transactions
involving shares of Common Stock, if any, the issuer's net worth, prospective
earning power and dividend-paying capacity, the goodwill of the issuer's
business, the issuer's industry position and its management, that industry's
economic outlook, the values of securities of issuers whose stock is publicly
traded and which are engaged in similar businesses, the effect of transfer
restrictions to which the Common Stock may be subject under law and under the
applicable terms of any contract governing such stock, the absence of a public
market for the Common Stock and such other matters as the Board or its appraiser
or appraisers deem pertinent. The determination by the Board or its appraiser or
appraisers of the Market Value shall, if not unreasonable, be conclusive and
binding notwithstanding the possibility that other persons might make a
different, and also reasonable, determination. If the Market Value to be used
was thus fixed more than sixteen months prior to the day as of which Market
Value is being determined, it shall in any event be no less than the book value
of the Common Stock at the end of the most recent period for which financial
statements of the issuer are available.
"NONQUALIFIED OPTION" means an Option Right that is not intended to
qualify as a Tax-Qualified Option.
"OPTIONEE" means the person so designated in an agreement evidencing
an outstanding Option Right.
"OPTION PRICE" means the purchase price payable upon the exercise of
an Option Right.
"OPTION RIGHT" means the right to purchase shares of Common Stock from
the Corporation upon the exercise of a Nonqualified Option or a Tax-Qualified
Option granted pursuant to Section 4 of this Plan.
"PARTICIPANT" means a person who is selected by the Board to receive
benefits under this Plan and (i) is at that time a key employee (including,
without limitation, a key employee who is also a member of the Board), advisor
or consultant of the Corporation or any Subsidiary or (ii) has agreed to
commence serving in any such capacity.
"RULE 16b-3" means Rule 16b-3 under the Securities Exchange Act of
1934 or any successor rule to the same effect.
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"SUBSIDIARY" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Corporation has a direct
or indirect ownership or other equity interest; provided, however, for purposes
of determining whether any person may be a Participant for purposes of any grant
of Incentive Stock Options, "Subsidiary" means any corporation in which the
Corporation owns or controls directly or indirectly more than 50 percent of the
total combined voting power represented by all classes of stock issued by such
corporation at the time of the grant.
"TAX-QUALIFIED OPTION" means an Option Right that is intended to
qualify under particular provisions of the Code, including without limitation an
Incentive Stock Option.
3. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as provided in
Section 6 of this Plan, the number of shares of Common Stock issued or
transferred and covered by outstanding Option Rights granted under this Plan
shall not in the aggregate exceed 1,000,000 shares of Common Stock, which may be
shares of Common Stock of original issuance or shares of Common Stock held in
treasury or a combination thereof. For the purposes of this Section 3, shares of
Common Stock covered by any Option Rights granted under this Plan shall be
deemed to have been issued or transferred, and shall cease to be available for
future issuance or transfer in respect of any other Option Rights granted
hereunder, at the earlier of the time when they are actually issued or
transferred or the time when dividend equivalents are paid thereon.
4. OPTION RIGHTS. The Committee may from time to time authorize grants to
Participants of options to purchase shares of Common Stock upon such terms and
conditions as the Committee may determine in accordance with the following
provisions:
(a) Each grant shall specify the number of shares of Common
Stock to which it pertains; provided, however, that no Participant shall be
granted Incentive Stock Options to purchase shares of Common Stock with an
aggregate market value in excess of $100,000 in any one fiscal year of the
Corporation.
(b) Each grant shall specify an Option Price per Common Share,
which, in the case of cash Incentive Stock Option, shall be equal to or greater
than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to be
paid in satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or check or
other cash equivalent acceptable to the Corporation, (ii) nonforfeitable,
unrestricted shares of Common Stock, which are already owned by the Optionee and
have a value at the time of exercise that is equal to the Option Price, (iii)
any other legal consideration that the Committee may deem appropriate
(including, without limitation, any form of consideration authorized under
Section 4(d) below) on such basis as the Committee may determine in accordance
with this Plan and (iv) any combination of the foregoing.
(d) On or after the Date of Grant of any Nonqualified Option,
the Committee may determine that payment of the Option Price may also be made in
whole or in part in the form of shares of Common Stock that are subject to risk
of forfeiture or restrictions on transfer. Unless otherwise determined by the
Committee on or after the Date of Grant, whenever any Option Price
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is paid in whole or in part by means of the form of consideration specified in
this Section 4(d), the shares of Common Stock received by the Optionee upon the
exercise of the Nonqualified Option shall be subject to the same risk of
forfeiture or restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; provided, however, that any such risk
of forfeiture or restrictions on transfer shall apply only to the same number of
shares of Common Stock received by the Optionee as applied to the forfeitable or
restricted shares of Common Stock surrendered by the Optionee.
(e) Any grant may provide for deferred payment of the Option
Price from the proceeds of sale through a broker of some or all of the shares of
Common Stock to which the exercise relates.
(f) Successive grants may be made to the same Participant
regardless of whether any Option Rights previously granted to the Participant
remain unexercised.
(g) Each grant shall specify the period or periods of continuous
service as a key employee, officer or consultant by the Optionee to the
Corporation or any Subsidiary that are necessary before the Option Rights or
installments thereof shall become exercisable, and any grant may provide for the
earlier exercise of the Option Rights in the event of a change in control of the
Corporation or other similar transaction or event.
(h) Option Rights granted pursuant to this Section 4 may be
Nonqualified Options or Tax-Qualified Options or combinations thereof.
(i) Any grant of a Nonqualified Option may provide for the
payment to the Optionee of dividend equivalents thereon in cash or shares of
Common Stock on a current, deferred or contingent basis or may provide that any
dividend equivalents shall be credited against the Option Price.
(j) No Option Right granted pursuant to this Section 4 may be
exercised more than 10 years from the Date of Grant.
(k) Each grant shall be evidenced by an agreement, which shall
be executed on behalf of the Corporation by an officer thereof and delivered to
and accepted by the Optionee and shall contain such terms and provisions as the
Board may determine consistent with this Plan.
5. TRANSFERABILITY. (a) No Option Right or other "derivative security"
(as that term is used in Rule 16b-3) granted under this Plan may be transferred
by a Participant except by will or the laws of descent and distribution. Option
Rights may not be exercised during a Participant's lifetime except by the
Participant or, in the event of the Participant's legal incapacity, by his
guardian or legal representative acting in a fiduciary capacity on behalf of the
Participant under state law and court supervision.
(b) Any grant of Option Rights made under this Plan may provide
that all or any part of the shares of Common Stock that are to be issued or
transferred by the Corporation upon the exercise thereof shall be subject to
further restrictions upon transfer.
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6. ADJUSTMENTS. The Committee may make or provide for such adjustments in
the number of shares of Common Stock covered by outstanding Option Rights, the
Option Prices per Common Share applicable thereto, and the kind of shares
(including shares of another issuer) covered thereby, as the Committee may in
good faith determine to be equitably required in order to prevent dilution or
expansion of the rights of Participants that otherwise would result from (i) any
stock dividend, stock split, combination of shares, recapitalization or other
change in the capital structure of the Corporation or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial
or complete liquidation or other distribution of assets, issuance of warrants or
other rights to purchase securities or (iii) any corporate transaction or event
having an effect similar to any of the foregoing. In the event of any such
transaction or event, the Committee may provide in substitution for any or all
outstanding Option Rights under this Plan such alternative consideration as it
may in good faith determine to be equitable under the circumstances and may
require in connection therewith the surrender of all Option Rights so replaced.
Moreover, the Committee may on or after the Date of Grant provide in the
agreement evidencing any grant of Option Rights under this Plan that the
Optionee may elect to receive an equivalent award in respect of securities of
the surviving entity of any merger, consolidation or other transaction or event
having a similar effect, or the Committee may provide that the Optionee will
automatically be entitled to receive such an equivalent award. The Committee may
also make or provide for such adjustments in the number of shares of Common
Stock specified in Section 3, and the number of shares of Common Stock specified
in Section 4(a), of this Plan as the Committee may in good faith determine to be
appropriate in order to reflect any transaction or event described in this
Section 6.
7. FRACTIONAL SHARES. The Corporation shall not be required to issue any
fractional shares of Common Stock pursuant to this Plan. The Committee may
provide for the elimination of fractions or for the settlement thereof in cash.
8. WITHHOLDING TAXES. To the extent that the Corporation is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Corporation for the withholding are insufficient,
it shall be a condition to the receipt of any such payment or the realization of
any such benefit that the Participant or such other person make arrangements
satisfactory to the Corporation for payment of the balance of any taxes required
to be withheld. At the discretion of the Committee, any such arrangements may
include relinquishment of a portion of any such payment or benefit. The
Corporation and any Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
9. PARTICIPATION BY EMPLOYEES OR CONSULTANTS OF A LESS-THAN-80-PERCENT
SUBSIDIARY. As a condition to the effectiveness of any grant of Option Rights to
be made hereunder to a Participant who is an employee or consultant of a
Less-Than-80-Percent Subsidiary, regardless of whether the Participant is also
employed or engaged as a consultant by the Corporation or another Subsidiary,
the Committee may require the Less-Than-80-Percent Subsidiary to agree to
transfer to the Participant (as, if and when provided for under this Plan and
any applicable agreement entered into between the Participant and the
Less-Than-80-Percent Subsidiary pursuant to this Plan) the shares of Common
Stock that would otherwise be delivered by the Corporation upon receipt by the
Less-Than-80-Percent Subsidiary of any consideration then otherwise payable by
the Participant to the Corporation. Any such grant of Option Rights may be
evidenced by an agreement between the
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Participant and the Less-Than-80-Percent Subsidiary, in lieu of the Corporation,
on terms consistent with this Plan and approved by the Committee and so
delivered by or to a Less-Than-80-Percent Subsidiary will be treated as if they
had been delivered by or to the Corporation for purposes of Section 3 of this
Plan, and all references to the Corporation in this Plan shall be deemed to
refer to the Less-Than-80-Percent Subsidiary except with respect to the
definitions of the Board and the Committee and in other cases where the context
otherwise requires.
10. CERTAIN TERMINATIONS OF EMPLOYMENT OR OTHER SERVICES, HARDSHIP AND
APPROVED LEAVES OF ABSENCE. Notwithstanding any other provision of this Plan to
the contrary, in the event of termination of employment or service as an
employee, officer, advisor or consultant by reason of death, disability, normal
retirement, or early retirement with the consent of the Corporation, termination
of employment or service as an employee, officer, advisor or consultant to enter
public service with the consent of the Corporation or leave of absence approved
by the Corporation, or in the event of hardship or other special circumstances,
of a Participant who holds an Option Right that is not immediately and fully
exercisable or any shares of Common Share that are subject to any transfer
restriction pursuant to Section 5(b) of this Plan, the Committee may take any
action that it deems to be equitable under the circumstances or in the best
interests of the Corporation, including without limitation waiving or modifying
any limitation or requirement with respect to any grant of Option Rights under
this Plan.
11. FOREIGN PARTICIPANTS. In order to facilitate the making of any grant
of Option Rights under this Plan, the Committee may provide for such special
terms for grants of Option Rights to Participants who are foreign nationals, or
who are employed or engaged as consultants by the Corporation or any Subsidiary
outside of the United States of America, as the Committee may consider necessary
or appropriate to accommodate differences in local tax, tax policy or custom.
Moreover, the Committee may approve such supplements to, or amendments,
restatements or alternative versions of, this Plan as it may consider necessary
or appropriate for such purposes without thereby affecting the terms of this
Plan as in effect for any other purpose; provided, however, that in no such
supplements, amendments, restatements or alternative versions shall include any
provisions that are inconsistent with the terms of this Plan, as then in effect,
unless this Plan could have been amended to eliminate the inconsistency without
further approval by the stockholders of the Corporation.
12. ADMINISTRATION OF THE PLAN. (a) This Plan shall be administered by a
committee of not less than two members of the Board, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3. A majority of the
members of the Committee shall constitute a quorum, and the acts of the members
of the Committee who are present at any meeting thereof at which a quorum is
present, or acts unanimously approved in writing by the members of the
Committee, shall be the acts of the Committee.
(b) The interpretation and construction by the Committee of any
provision of this Plan or any agreement, notification or document evidencing a
grant of Option Rights, and any determination by the Committee pursuant to any
provision of this Plan or any such agreement, notification or document, shall be
final and conclusive. No member of the Committee shall be liable for any such
action taken or determination made in good faith.
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13. AMENDMENTS AND OTHER MATTERS. (a) This Plan may be amended from time
to time by the Committee; provided, however, that except as expressly authorized
by this Plan, no such amendment shall increase the number of shares of Common
Stock specified in Section 3 of this Plan, increase the number of shares of
Common Stock specified in Section 4(a) of this Plan, or otherwise cause this
Plan to cease to satisfy any applicable condition of Rule 16b-3, without the
further approval of the stockholders of the Corporation.
(b) With the concurrence of the affected Optionee, the Committee
may cancel any agreement evidencing Option Rights granted under this Plan. In
the event of any such cancellation, the Committee may authorize the granting of
new Option Rights hereunder, which may or may not cover the same number of
shares of Common Stock as had been covered by the cancelled Option Rights, at
such Option Price, in such manner and subject to such other terms, conditions
and discretion as would have been permitted under this Plan had the cancelled
Option Rights not been granted.
(c) This Plan shall not confer upon any Participant any right
with respect to continuance of employment or other service with the Corporation
or any Subsidiary and shall not interfere in any way with any right that the
Corporation or any Subsidiary would otherwise have to terminate any
Participant's employment or other service at any time.
(d) (i) To the extent that any provision of this Plan would
prevent any Option Right that was intended to qualify as a Tax-Qualified
Option from so qualifying, any such provision shall be null and void with
respect to any such Option Right; provided, however, that any such
provision shall remain in effect with respect to other Option Rights, and
there shall be no further effect on any provision of this Plan.
(ii) Any award that may be made pursuant to an amendment
to this Plan that shall have been adopted without the approval of the
stockholders of the Corporation shall be null and void if it is
subsequently determined that such approval was required in order for this
Plan to continue to satisfy the applicable conditions of Rule 16b-3.
14. TERMINATION OF THE PLAN. No further awards shall be granted under
this Plan after the passage of 10 years from the date on which this Plan is
first approved by the stockholders of the Corporation.
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