Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement of a Foreign Private Issuer — Form F-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: F-1/A Conecel Form F-1/A 155 966K
2: EX-1.1 Underwriting Agreement 38 178K
3: EX-4.4 Specimen of Class B Common Stock Certificate 2 6K
4: EX-5.2 Opinion of Estudio Juridico Pareja 2 10K
5: EX-8.1 Opinion and Consent of Greenberg Traurig 2 10K
7: EX-10.23 1998 Stock Option 8 32K
6: EX-10.4 Internet Concession 4 13K
EX-10.23 — 1998 Stock Option
| EX-10.23 | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 10.23
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CONSORCIO ECUATORIANO DE TELECOMUNICACIONES S.A. CONECEL
1998 STOCK OPTION PLAN
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1. PURPOSE. The purpose of this Plan is to advance the interests of
CONSORCIO ECUATORIANO DE TELECOMUNICACIONES S.A. CONECEL, an Ecuadorian
corporation (the "Company"), and its Affiliates by providing an additional
incentive to attract and retain qualified and competent persons who provide
services to the Company and its Affiliates, and upon whose efforts and judgment
the success of the Company and its Affiliates is largely dependent, through the
encouragement of stock ownership in the Company by such persons.
2. DEFINITIONS. As used herein, the following terms shall have the meaning
indicated:
(a) "Affiliates" shall mean any entity directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
the Company and any legal or beneficial owner, directly or indirectly, of 20% or
more of the voting stock of the Company.
(b) "ADR" shall mean an American Depositary Receipt evidencing the
Common Stock.
(c) "Committee" shall mean the committee appointed by the Board
pursuant to Section 12(a) hereof.
(d) "Common Stock" shall mean the Company's Class B Common Stock, par
value 1,000 sucres per share.
(e) "Director" shall mean a member of the Board.
(f) "Fair Market Value" of a Share on any date of reference shall be
as determined in good faith by the Committee or the Board in a fair and uniform
manner.
(g) "Officer" shall mean the Company's Chairman of the Board,
President, Chief Executive Officer, principal financial officer, principal
accounting officer, any vice-president of the Company in charge of a principal
business unit, division or function (such as sales, administration or finance),
any other officer who performs a policy-making function, or any other person who
performs similar policy-making functions for the Company. Officers of Affiliates
shall be deemed Officers of the Company if they perform such policy-making
functions for the Company. As used in this paragraph, the phrase "policy-making
function" does not include policy-making functions that are not significant.
(h) "Option" (when capitalized) shall mean any option granted under
this Plan.
(i) "Optionee" shall mean a person to whom a stock option is granted
under this Plan or any person who succeeds to the rights of such person under
this Plan by reason of the death of such person.
(j) "Plan" shall mean this 1998 Stock Option Plan for the Company.
(k) "Securities Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
(l) "Share" shall mean a share of Common Stock.
3. SHARES AVAILABLE FOR OPTION GRANTS. The Committee or the Board may grant
to Optionees from time to time Options to purchase an aggregate of up to Seven
Hundred Fifty Thousand (750,000) Shares from the Company's authorized and
unissued Shares. The Board shall determine in its sole discretion at the time of
the grant of an Option under the Plan whether the Option granted will be
exercisable into ADRs evidencing the Shares. If any Option granted under the
Plan shall terminate, expire, or be cancelled or surrendered as to any Shares,
new Options may thereafter be granted covering such Shares.
4. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an option agreement that may
contain any term deemed necessary or desirable by the Committee or the Board,
provided such terms are not inconsistent with this Plan or any applicable law.
Optionees shall be (i) those persons selected by the Committee or the Board from
the class of all regular employees of, or persons who provide consulting or
other services as independent contractors to, the Company or its Affiliates,
including Directors and Officers who are regular employees, and (ii) Directors
who are not employees of the Company or of any Affiliates. Any person who files
with the Committee or the Board, in a form satisfactory to the Committee or the
Board, a written waiver of eligibility to receive any Option under this Plan
shall not be eligible to receive any Option under this Plan for the duration of
such waiver.
(b) In granting Options, the Committee or the Board shall take into
consideration the contribution the person has made to the success of the Company
and such other factors as the Committee or the Board shall determine. The
Committee or the Board shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Affiliates with regard to these matters. The Committee or the Board may from
time to time in granting Options under the Plan prescribe such other terms and
conditions concerning such Options as it deems appropriate, including, without
limitation, (i) prescribing the date or dates on which the Option becomes
exercisable, (ii) providing that the Option rights accrue or become exercisable
in installments over a period of years, or upon the
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attainment of stated goals or both, or (iii) relating an Option to the continued
employment of the Optionee for a specified period of time, provided that such
terms and conditions are not more favorable to an Optionee than those expressly
permitted herein.
(c) The Options granted to employees under this Plan shall be in
addition to regular salaries, pension, life insurance or other benefits related
to their employment with the Company or its Affiliates. Neither the Plan nor any
Option granted under the Plan shall confer upon any person any right to
employment or continuance of employment by the Company or its Affiliates.
5. OPTION PRICE. The option price per Share of any Option shall be any
price determined by the Committee or the Board but shall not be less than the
par value per Share.
6. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
that are satisfactory to the Committee or the Board in its sole discretion have
been made for the Optionee's payment to the Company of the amount that is
necessary for the Company or Subsidiary employing the Optionee to withhold in
accordance with applicable tax withholding requirements. Unless further limited
by the Committee or the Board in any Option, and subject to such guidelines as
the Committee or the Board may establish, the option price of any Shares
purchased shall be paid (1) in cash, (2) by certified or official bank check,
(3) by money order, (4) with Shares, (5) by the withholding of Shares issuable
upon exercise of the Option or by any other form of cashless exercise procedure
approved by the Committee or the Board , or (6) in such other consideration as
the Committee or the Board deems appropriate, or by a combination of the above.
The Committee or the Board in its sole discretion may accept a personal check in
full or partial payment of any Shares. If the exercise price is paid in whole or
in part with Shares that have been held for at least 6 months, or through the
withholding of Shares issuable upon exercise of the Option, the value of the
Shares surrendered or withheld shall be their Fair Market Value on the date the
Option is exercised. The Company in its sole discretion may, on an individual
basis or pursuant to a general program established in connection with this Plan,
lend money to an Optionee, guarantee a loan to an Optionee, or otherwise assist
an Optionee to obtain the cash necessary to exercise all or a portion of an
Option granted hereunder or to pay any tax liability of the Optionee
attributable to such exercise. If the exercise price is paid in whole or part
with Optionee's promissory note, such note shall (i) provide for full recourse
to the maker, (ii) be collateralized by the pledge of the Shares that the
Optionee purchases upon exercise of such Option, (iii) bear interest at the
prime rate of the Company's principal lender, and (iv) contain such other terms
as the Committee or the Board in its sole discretion shall reasonably require.
No Optionee shall be deemed to be a holder of any Shares subject to an Option
unless and until a stock certificate or certificates for such Shares are issued
to such person(s) under the terms of this Plan. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 9 hereof.
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7. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in such
amounts, at such intervals and upon such terms as the Committee or the Board
shall provide in such Option.
8. TERMINATION OF OPTION PERIOD. The unexercised portion of any Option
shall automatically and without notice terminate and become null and void at the
time of the earliest to occur of the following:
(a) (i) three months after the date on which the Optionee's employment
is terminated for any reason other than by reason of (A) Cause, which, solely
for purposes of this Plan, shall mean the termination of the Optionee's
employment by reason of the Optionee's willful misconduct, negligence or
insubordination, (B) a mental or physical disability as determined by a medical
doctor satisfactory to the Committee, or (C) death;
(ii) immediately upon the termination of the Optionee's employment
for Cause;
(iii) twelve months after the date on which the Optionee's
employment is terminated by reason of a mental or physical disability as
determined by a medical doctor satisfactory to the Committee or the Board;
(iv) (A) twelve months after the date of termination of the
Optionee's employment by reason of death of the Optionee, or, if later, (B)
three months after the date on which the Optionee shall die if such death shall
occur during the one year period specified in Subsection 8(a)(iii) hereof.
All references herein to the termination of the Optionee's employment shall, in
the case of a Optionee who is not an employee of the Company or a Subsidiary,
refer to the termination of the Optionee's service with the Company.
(b) To the extent not previously exercised, (i) each Option shall
terminate immediately in the event of (1) the liquidation or dissolution of the
Company, or (2) any reorganization, merger, consolidation or other form of
corporate transaction in which the Company does not survive, unless the
successor corporation, or a parent or subsidiary of such successor corporation,
assumes the Option or substitutes an equivalent option or right pursuant to
Section 9(c) hereof, and (ii) the Committee or the Board in its sole discretion
may by written notice ("cancellation notice") cancel, effective upon the
consummation of any corporate transaction in which the Company does survive, any
Option that remains unexercised on such date. The Committee or the Board shall
give written notice of any proposed transaction referred to in this Section 8(b)
a reasonable period of time prior to the closing date for such transaction
(which notice may be given either before or after approval of such transaction),
in order that Optionees may have a reasonable period of time prior to the
closing date of such transaction within which to exercise any Options that then
are exercisable (including any Options that may
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become exercisable upon the closing date of such transaction). An Optionee may
condition his exercise of any Option upon the consummation of a transaction
referred to in this Section 8(b).
9. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or unexercised Options
are outstanding, there shall be any increase or decrease in the number of issued
and outstanding Shares through the declaration of a stock dividend or through
any recapitalization resulting in a stock split-up, combination or exchange of
Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number of
Shares available for grant under the Plan, or available for grant to any person
under the Plan, so that the same percentage of the Company's issued and
outstanding Shares shall continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of Shares
and the exercise price per Share thereof then subject to any outstanding Option,
so that the same percentage of the Company's issued and outstanding Shares shall
remain subject to purchase at the same aggregate exercise price.
(b) Unless otherwise provided in any Option, the Committee or the
Board may change the terms of Options outstanding under this Plan, with respect
to the option price or the number of Shares subject to the Options, or both,
when, in the Committee's or Board's sole discretion, such adjustments become
appropriate so as to preserve but not increase benefits under the Plan.
(c) In the event of a proposed sale of all or substantially all of the
Company's assets or any reorganization, merger, consolidation or other form of
corporate transaction in which the Company does not survive, where the
securities of the successor corporation, or its parent company, are issued to
the Company's shareholders, then the successor corporation or a parent of the
successor corporation may, with the consent of the Committee or the Board,
assume each outstanding Option or substitute an equivalent option or right. If
the successor corporation, or its parent, does not cause such an assumption or
substitution to occur, or the Committee or the Board does not consent to such an
assumption or substitution, then each Option shall terminate pursuant to Section
8(b) hereof upon the consummation of sale, merger, consolidation or other
corporate transaction.
(d) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with a direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made to, the number of or exercise price for Shares then subject to
outstanding Options granted under the Plan.
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(e) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
10. TRANSFERABILITY OF OPTIONS AND SHARES.
(a) No Stock Option shall be subject to alienation, assignment,
pledge, charge or other transfer other than by the Optionee by will or the laws
of descent and distribution, and any attempt to make any such prohibited
transfer shall be void. Each Option shall be exercisable during the Optionee's
lifetime only by the Optionee by a permitted assignee.
(b) Unless the prior written consent of the Committee or the Board is
obtained and the transaction does not violate any applicable laws, no Shares
acquired by an Officer or Director pursuant to the exercise of an Option may be
sold, assigned, pledged or otherwise transferred prior to the expiration of the
six-month period following the date on which the Option was granted.
11. ISSUANCE OF SHARES.
(a) Notwithstanding any other provision of this Plan, the Company
shall not be obligated to issue any Shares unless it is advised by counsel of
its selection that it may do so without violation of all applicable laws
pertaining to the issuance of securities, and may require any stock so issued to
bear a legend and may take such other steps as in its judgment are reasonably
required to prevent any such violation.
(b) As a condition to any sale or issuance of Shares upon exercise of
any Option, the Committee or the Board may require such agreements or
undertakings as the Committee or the Board may deem necessary or advisable to
facilitate compliance with any applicable law or regulation including, but not
limited to, the following:
(i) a representation and warranty by the Optionee to the Company,
at the time any Option is exercised, that he is acquiring the Shares to be
issued to him for investment and not with a view to, or for sale in connection
with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement to be bound by
any legends endorsed upon the certificate(s) for such Shares that are, in the
opinion of the Committee or the Board, necessary or appropriate to facilitate
compliance with the provisions of any
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securities laws deemed by the Committee or the Board to be applicable to the
issuance and transfer of such Shares.
12. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board or by a committee
appointed by the Board (the "Committee") which shall be composed of two or more
Directors. The membership of the Committee shall be constituted so as to comply
at all times with the applicable legal requirements. The Committee shall serve
at the pleasure of the Board and shall have the powers designated herein and
such other powers as the Board may from time to time confer upon it.
(b) The Board may grant Options pursuant to this Plan to Directors who
are not employees of the Company or any Affiliate and/or other persons to whom
Options may be granted under Section 4(a) hereof.
(c) The Committee or the Board, from time to time, may adopt rules and
regulations for carrying out the purposes of the Plan. The determinations by the
Committee or the Board, and the interpretation and construction of any provision
of the Plan or any Option by the Committee or the Board, shall be final and
conclusive.
(d) Any and all decisions or determinations of the Committee shall be
made either (i) by a majority vote of the members of the Committee at a meeting
or (ii) without a meeting by the unanimous written approval of the members of
the Committee.
13. WITHHOLDING OR DEDUCTION FOR TAXES. If at any time specified herein for
the making of any issuance or delivery of any Option or Common Stock to any
Optionee or beneficiary, any law or regulation of any governmental authority
having jurisdiction in the premises shall require the Company to withhold, or to
make any deduction for, any taxes or take any other action in connection with
the issuance or delivery then to be made, such issuance or delivery shall be
deferred until such withholding or deduction shall have been provided for by the
Optionee or beneficiary, or other appropriate action shall have been taken.
14. INTERPRETATION; GOVERNING LAW.
(a) This Plan shall be governed by the laws of the Republic of
Ecuador.
(b) Headings contained in this Plan are for convenience only and shall
in no manner be construed as part of this Plan.
(c) Any reference to the masculine, feminine, or neuter gender shall
be a reference to such other gender as is appropriate.
15. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Committee or the Board
may from time to time amend, suspend or terminate the Plan or any Option;
provided, however, that,
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any amendment to the Plan shall be subject to the approval of the Company's
shareholders if such shareholder approval is required by any 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 granted. Except to the
extent provided in Sections 8 and 9 hereof, no amendment, suspension or
termination of the Plan or any Option issued hereunder shall substantially
impair the rights or benefits of any Optionee pursuant to any Option previously
granted without the consent of the Optionee.
16. EFFECTIVE DATE AND TERMINATION DATE. The effective date of the Plan is
February 28, 1998, the date on which the Board adopts this Plan, and the Plan
shall terminate on February 28, 2003. The Plan shall be submitted to the
shareholders of the Company for their approval and adoption and Options
hereunder may be granted prior to such approval and adoption but contingent upon
such approval and adoption.
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘F-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| | 2/28/03 | | 8 |
| Filed on: | | 4/1/98 | | | | | | | 8-A12G |
| | 2/28/98 | | 8 |
| List all Filings |
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