As filed with the Securities and Exchange Commission on June 5, 2001
Registration No. 333-_________
- -------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATLANTIC TELE-NETWORK, INC.
(Exact name of registrant as specified in its charter)
Delaware 47-0728886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
19 Estate Thomas
Havensite
P.O. Box 12030
St. Thomas, U.S. Virgin Islands 00801
(Address of principal executive offices) (Zip Code)
ATLANTIC TELE-NETWORK, INC. 1998 STOCK OPTION PLAN
ATLANTIC TELE-NETWORK, INC. DIRECTORS' REMUNERATION PLAN
(Full title of the plans)
Lewis A. Stern
Chief Financial Officer
Atlantic Tele-Network, Inc.
19 Estate Thomas
Havensite
P.O. Box 12030
St. Thomas, U.S. Virgin Islands 00801
(340) 777-8000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Martin L. Budd, Esq.
Day, Berry & Howard LLP
One Canterbury Green
Stamford, Connecticut 06901-2047
CALCULATION OF REGISTRATION FEE
- ----------- ----------- --------------- --------------- --------------
Title of Amount Proposed Proposed Amount of
securities to be maximum maximum registration
to be registered offering aggregate fee
registered (1) price per offering
share (2) price(2)
- ------------ ----------- --------------- --------------- --------------
- ------------ ----------- --------------- --------------- --------------
Common Stock, 350,000 $9.625,$12.50, $4,305,342.97 $1,076.34
par value shares $9.825,$11.01,
$.01 er $9.13,$10.88,
share $11.188,$11.01,
$13.1
- ------------ ----------- --------------- --------------- --------------
(1) In addition, pursuant to Rule 416(c), this Registration Statement
also covers such indeterminate number of additional shares of Common Stock as
is necessary to eliminate any dilutive effect of any future stock split, stock
dividend or similar transaction.
(2) For the purpose of calculating the registration fee only, in
accordance with Rule 457(c) and Rule 457(h), the proposed maximum offering
price per share is based upon (a) (i) the exercise price per share ($9.625) of
outstanding options for 10,000 shares, (ii) the exercise price per share
($12.50) of outstanding options for 100,000 shares, (iii) the exercise price
per share ($9.825) of outstanding options for 25,000 shares, (iv) the exercise
price per share ($11.01) of outstanding options for 25,000 shares (v) the
price per share ($9.13) of stock awards for 2,466 shares, (vi) the price per
share ($10.88) of stock awards for 4,139 shares, (vii) the price per share
($11.188) of stock awards for 6,705 shares, (viii) the price per share
($11.01) of stock awards for 9,083 shares and (b) for the remaining 167,607
shares, upon the average of the high and low prices for the Company's Common
Stock on June 4, 2001, as reported on the American Stock Exchange.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to (i) 250,000 shares of common stock
of Atlantic Tele-Network, Inc. (the 'Company' or the 'Registrant') which may
be issued upon the exercise of options heretofore granted and to be granted
from time to time pursuant to the Company's 1998 Stock Option Plan, and (ii)
100,000 shares of common stock which may be issued pursuant to the Company's
Director's Remuneration Plan.
Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act or 1934, as amended (the "Exchange Act");
(b) All other Reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (a) above; and
(c) The description of the Company's common stock which is contained in its
Registration Statement on Form 8-A, No. 000-19551, filed under the Exchange
Act, and its Registration Statement on Form S-1, No. 033-43012, filed under
the Securities Act of 1933, as amended (the "Securities Act"), and any
amendment or reports filed under the Exchange Act for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of common stock
offered hereby have been sold or which deregisters all securities remaining
unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superceded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supercedes such statement. Any such statement so
modified or superceded shall not be deemed, except as so modified or
superceded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a Delaware corporation may indemnify any person who is,
or is threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation's best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was unlawful. A Delaware corporation may also
indemnify any person who is, or is threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of such corporation,
or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests, except that no indemnification is permitted without judicial
approval if the officer, director, employee or agent is adjudged to be liable
to the corporation. In addition, Section 145(c) of the DGCL provides that when
an officer or director is successful on the merits or otherwise in the defense
of any action to above, the corporation must indemnify him against the
expenses which such officer or director has actually and reasonably incurred.
II-1
The Company's By-laws contain provisions requiring indemnification of its
officers and directors to the maximum extent permitted by the DGCL and
allowing such indemnification of its employees and agents, and any person
serving at its request as a director, officer, employee or agent of another
entity. The Company's By-laws also provide that the termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contende or its equivalent does not, in itself, create a presumption
that the person did not act in good faith and in the best interest of the
Company, or with respect to any criminal action or proceeding, that such
person had reasonable cause to believe his or her conduct was unlawful.
Section 145(e) of the DGCL provides that expenses (including attorneys'
fees) incurred by a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the corporation. The
Company's By-laws provide that expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Company in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he or she is
entitled to be indemnified by the Company.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duties as a director, except for liability (i) for any
transaction from which the director derives an improper personal benefit, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) for improper payment of dividends, stock
purchases or redemptions of shares, or (iv) for any breach of a director's
duty of loyalty to the corporation or its stockholders. The Company's Restated
Certificate of Incorporation includes such a provision. The Company's Restated
Certificate of Incorporation also contains a provision which provides that if
the DGCL is amended to permit further elimination or limitation of the
personal liability of directors, then the liability of a director of the
Company shall be eliminated or limited to the fullest extent permitted by the
DGCL as so amended.
The Company's By-laws provide that the Corporation has the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of
another enterprise, for any liability asserted against or incurred by him or
her in any such capacity or arising out of his or her status as such, whether
or not the Company shall have the power to indemnify such person against such
liability. The indemnification and related provisions of the Company's By-laws
continue as to any person who has ceased to be a director, officer, employee
or agent of the Company and inure to the benefit of the heirs, executors and
administrators of such persons.
The Company maintains an insurance policy under which its directors and
officers are insured, within the limits and subject to the limitations of such
insurance policy, against certain liabilities which may be imposed in
connection with such persons' service as such directors or officers.
The Company's 1998 Stock Option Plan (the "Option Plan") is administered
by a committee which at any given time shall consist of at least two directors
of the Company and may consist of the entire Board of Directors of the
Company. The Option Plan provides the no member of the committee shall be
liable for any action, failure to act, determination or interpretation made in
good faith with respect to the Option Plan or any transaction thereunder. The
Company also agrees to indemnify each member of the committee for all costs
and expenses and, to the extent permitted by applicable law, any liability
incurred in connection with defending against, responding to, negotiating for
the settlement of or otherwise dealing with any claim, cause of action or
dispute of any kind arising in connection with any actions in administering
the Option Plan or in authorizing or denying authorization to any transaction
thereunder.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-2
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Company.
4.2 By-laws of the Company (incorporated by reference to Exhibit 3(b) to
the Company's Registration Statement on Form S-1 (File No. 033-43012) dated
September 27, 1991).
4.3 Amendment to the By-laws of the Company (incorporated by reference to
Exhibit 3(ii) to the Company's Current Report on Form 8-K (File No. 1-19551)
dated February 16, 1996).
4.4 Atlantic Tele-Network, Inc. 1998 Stock Plan (incorporated by
reference to Exhibit L to the Company's Annual Report on Form 10-K (File No.
1-1593) for the year ended December 31, 1999).
4.5 Amendments adopted March 10, 2000 to Atlantic Tele-Network, Inc. 1998
Stock Plan (incorporated by reference to Exhibit M to the Company's Annual
Report on Form 10-K (File No. 1-1593) for the year ended December 31, 1999).
4.6 Atlantic Tele-Network, Inc. Directors' Remuneration Plan
(incorporated by reference to Exhibit O to the Company's Annual Report on Form
10-K (File No. 1-1593) for the year ended December 31, 1999).
4.7 Atlantic Tele-Network, Inc. Directors' Remuneration Plan, amended as
of November 2, 1999.
4.8 Atlantic Tele-Network, Inc. Form of Incentive Stock Option Agreement.
5. Opinion of Day, Berry & Howard LLP.
23.1 Consent of Arthur Anderson LLP.
23.2 Consent of Day, Berry & Howard LLP(included in the opinion filed as
Exhibit 5).
24 Power of Attorney (included in signature page to this Registration
Statement).
Item 9. Undertakings.
(a)The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a twenty percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information set forth in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
II-3
(2) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted against the Registrant by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
thirtieth day of May, 2001.
ATLANTIC TELE-NETWORK, INC.
By: /s/ Cornelius B. Prior, Jr.
--- ---------------------------
/s/ Cornelius B. Prior, Jr.
Chief Executive Officer, Chairman of
the Board and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this thirtieth day of May, 2001. Each person whose
signature appears below hereby constitutes Cornelius B. Prior, Jr. and
Christopher J. Kolm, and each of them singly, such person's true and lawful
attorneys, with full power to them and each of them to sign for such person in
such person's name and capacity indicated below any and all amendments to this
Registration Statement, hereby ratifying and confirming such person's
signature as it may be signed by said attorneys to any and all such
amendments.
/s/ Cornelius B. Prior, Jr. Chief Executive Officer, Chairman of
- --------------------------- the Board and Secretary
/s/ Cornelius B. Prior, Jr. (Principal Executive Officer)
/s/ Lewis A. Stern Vice President - Finance
- --------------------------- and Chief Financial Officer
/s/ Lewis A. Stern (Principal Financial Officer)
/s/ Steven M. Ross Treasurer and Chief Accounting Officer
- ------------------ (Principal Accounting Officer)
/s/ Steven M. Ross
/s/ James B. Ellis Director
- ------------------
/s/ James B. Ellis
/s/ Ernst Burri Director
- ---------------
/s/ Ernst Burri
/s/ Henry Wheatley Director
- ------------------
/s/ Henry Wheatley
EXHIBIT INDEX
Exhibit Number Description of Exhibit
4.1 Restated Certificate of Incorporation of the Company.
4.2 By-laws of the Company (incorporated by reference to Exhibit 3(b)
to the Company's Registration Statement on Form S-1 (File No. 033-43012)
dated September 27, 1991).
4.3 Amendment to the By-laws of the Company (incorporated by reference to
Exhibit 3(ii) to the Company's Current Report on Form 8-K
(File No. 1-19551) dated February 16, 1996).
4.4 Atlantic Tele-Network, Inc. 1998 Stock Plan (incorporated by reference
to Exhibit L to the Company's Annual Report on Form 10-K (File No. 1-1593)
for the year ended December 31, 1999).
4.5 Amendments adopted March 10, 2000 to Atlantic Tele-Network, Inc. 1998
Stock Plan (incorporated by reference to Exhibit M to the Company's
Annual Report on Form 10-K (File No. 1-1593) for the year ended
December 31, 1999).
4.6 Atlantic Tele-Network, Inc. Directors' Remuneration Plan
(incorporated by reference to Exhibit O to the Company's Annual Report
on Form 10-K (File No. 1-1593) for the year ended December 31, 1999).
4.7 Atlantic Tele-Network, Inc. Directors' Remuneration Plan,
amended as of November 2, 1999.
4.8 Atlantic Tele-Network, Inc. Form of Incentive Stock Option Agreement
5 Opinion of Day, Berry & Howard LLP.
23.1 Consent of Arthur Anderson LLP.
23.2 Consent of Day, Berry & Howard LLP (included in the
opinion filed in Exhibit 5).
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
ATLANTIC TELE-NETWORK, INC.
ARTICLE ONE
Name
The name of the Corporation is Atlantic Tele-Network, Inc.
ARTICLE TWO
Registered Office
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company.
ARTICLE THREE
Purpose
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
the State of Delaware.
ARTICLE FOUR
Capital Stock
1. Authorized Capital Stock. The total number of shares of all classes of
capital stock which the Corporation shall have the authority to issue is
30,000,000 shares divided into two classes of which 10,000,000 shares, par
value $.01 per share, shall be designated Preferred Stock and 20,000,000
shares, par value $.01 per share, shall be designated Common Stock
2. Terms of the Preferred Stock.
2.1 Issuance. The Board of Directors is expressly authorized, subject to
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more series, to establish the number of shares to be
included in each such series, and to fix the designations, powers,
preferences, and rights of the shares of each such series, and any
qualifications, limitations, or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and
whether they shall be payable in preference to, or in another relation to, the
dividends payable to any other class or classes or series of stock;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion or exchange privileges,
and, if so, the terms and conditions of such conversion or exchange, including
provision for adjustment of the conversion or exchange rate in such events as
the Board of Directors shall determine;
(e) Whether or not the shares of that series shall be redeemable, and, if
so, the terms and conditions of such redemption, including the manner of
selecting shares for redemption if less than all shares are to be redeemed,
the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
1
(f) Whether that series shall be entitled to the benefit of a sinking
fund to be applied to the purchase or redemption of shares of that series,
and, if so, the terms and amounts of such sinking fund;
(g) The right of the shares of that series to the benefit of conditions
and restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional stock (including additional
shares of such series or of any other series) and upon the payment of
dividends or the making of other distributions on, and the purchase,
redemption or other acquisition by the Corporation or any subsidiary of any
outstanding stock of the Corporation;
(h) The right of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and
whether such rights shall be in preference to, or in another relation to, the
comparable rights of any other class or classes or series of stock; and
(i) Any other power, preference or relative, participating, optional or
other special rights, qualifications, limitations or restrictions of that
series.
Terms of the Common Stock
3.1 Dividends. Subject to the preferential rights, if any, of the
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either
in cash, in property, or in shares of the Corporation's capital stock.
3.2 Voting Rights. Subject to the preferential rights, if any, of the
Preferred Stock and except as otherwise provided by applicable law, at every
annual or special meeting of stockholders of the Corporation, every holder of
Common Stock shall be entitled to one vote, in person or by proxy, for each
share of Common Stock standing in his name on the books of the Corporation.
3.3 Liquidation, Dissolution, or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution, or winding up of the
affairs of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation and of the preferential
amounts, if any, to which the holders of Preferred Stock shall be entitled,
the holders of all outstanding shares of Common Stock shall be entitled to
share ratably in the remaining net assets of the Corporation.
ARTICLE FIVE
Directors
1. Management. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors of the
Corporation.
2. By-Laws. The board of directors is expressly authorized to adopt,
amend, or repeal the by-laws of the Corporation.
3. No Ballot. Elections of directors need not be by written ballot unless
the by-laws of the Corporation shall otherwise provide.
2
4. Limitation of Liability. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; provided, however, that the
foregoing shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the General Corporation Law of the State of Delaware is hereafter amended to
permit further elimination or limitation of the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended. Any repeal or
modification of this Article FIVE shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
ARTICLE SIX
Existence
The Corporation is to have perpetual existence.
ARTICLE SEVEN
Compromise or Arrangement
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of Section 279 of Title 8 of the Delaware
Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which said application has been made, be
binding on all the creditors or class of creditors, and/or on all of the
stockholders or class of stockholders, of this Corporation, as the case may
be, and also on this Corporation.
ARTICLE EIGHT
Amendment
The Corporation reserves the right to amend, alter, change, or repeal any
provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
3
Exhibit 4.7
ATLANTIC TELE-NETWORK, INC.
DIRECTORS' REMUNERATION PLAN
AMENDED AS OF NOVEMBER 2, 1999
ARTICLE 1
PURPOSE
The purpose of this Plan is to increase the equity ownership in the
Company of non-employee members of the Board in order to align further their
interests with those of the Company's stockholders and thereby incentivize
such members to utilize their maximum efforts in performing services on behalf
of the Company.
ARTICLE 2
DEFINITIONS
For purposes of the Plan, the following terms shall have the following
meanings:
"Annual Retainer" shall mean the annual retainer payable to a member of
the Board for a Plan Year.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean the occurrence of any of the following:
(a) The acquisition by any individual, entity or group (within the
meaning of Sections 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership (within the meaning of rule 13d-3 promulgated under the
Exchange Act) of 50% or more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that for purposes
of this subsection (a), the following acquisitions shall not constitute a
Change in Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any corporation pursuant
to a transaction which complies with clauses (i), (ii) and (iii) of subsection
(c) below; or
(b) Individuals who, as of the effective date of this Plan, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding voting shares of common stock and the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
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through one or more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business Combination, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities, as
the case may be, (ii) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership
existed prior to the Business Combination and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing
for such Business Combinations; or
(d) Approval by the stockholders of the Company of a complete liquidation
or dissolution of the Company.
"Common Stock" shall mean the common stock, par value $0.01 per share, of
the Company.
"Company" shall mean Atlantic Tele-Network, Inc., a Delaware corporation,
and any successor thereto.
"Deferral Amount" with respect to a Deferral Election shall mean the
amount of the Annual Retainer which an Eligible Director elects to defer
pursuant to such election.
"Deferral Election" shall mean an Eligible Director's election pursuant
to Article 4 hereof.
"Deferral Percentage" shall have the meaning set forth in paragraph 4.1
of Article 4 hereof.
"Disability" shall mean a condition as a result of which an individual
would qualify for permanent disability benefits under the Company's long-term
disability plan if the individual were a participant in such plan, as
determined by the Plan Administrator.
"Election Form" shall mean a form prescribed by the Plan Administrator
that an Eligible Director must complete and submit to the Plan Administrator
in order to make a Deferral Election.
"Eligible Director" shall mean a member of the Board who is not an
employee of the Company.
"Fair Market Value" on any date shall mean the mean between the high and
low sales price of the Common Stock based on composite transactions reported
for such date or, if the Common Stock did not have any reported sales on such
date, then on the last preceding date on which such stock had reported sales.
"Lapse Date" shall have the meaning set forth in paragraph 3.3 of Article
3 hereof.
"Participant" shall mean any Eligible Director who makes a Deferral
Election pursuant to paragraph 4.1 of Article 4 hereof.
"Plan" shall mean this Atlantic Tele-Network, Inc. Directors'
Remuneration Plan, as such Plan may be amended from time to time.
"Plan Administrator" shall mean the individual or committee appointed or
designated by the Board to administer the Plan in accordance with Article 7
hereof.
"Plan Year" shall mean the period of time commencing on the day following
the date of an annual meeting of the Company's stockholders and ending on the
date of the next succeeding such annual meeting.
"Restricted Stock" shall have the meaning set forth in paragraph 3.1 of
Article 3 hereof.
"Stock Unit Account" shall mean a memorandum account established on the
books of the Company on behalf of a Participant to which is credited a number
of Stock Units pursuant to Article 4 hereof.
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"Stock Units" shall mean the units credited to a Participant's Stock Unit
Account.
"Substantial Hardship" shall mean an unanticipated emergency or necessity
that is caused by events outside of the control of the Participant (or in the
event of the Participant's death, his beneficiary) that would result in severe
financial hardship to the Participant (or in the event of the Participant's
death, his beneficiary), as determined in the sole discretion of the Plan
Administrator.
"Transfer Restriction" shall have the meaning set forth in paragraph 3.2
of Article 3 hereof.
ARTICLE 3
RESTRICTED STOCK AWARD
3.1 Restricted Stock Award. Upon the appointment or election to the Board
of an Eligible Director who has not previously served on the Board, the
Company shall grant to such Eligible Director 1,000 shares of restricted
Common Stock (the "Restricted Stock"). An Eligible Director's rights with
respect to the shares of the Restricted Stock shall remain forfeitable at all
times prior to the Lapse Date with respect thereto.
3.2 Rights of Eligible Director. An Eligible Director shall be entitled
to exercise all rights of a stockholder with respect to the Restricted Stock
(whether or not the restrictions thereon shall have lapsed), other than with
respect to those shares of Restricted Stock which have been forfeited pursuant
to paragraph 3.5 of this Article 3, including the right to vote the shares of
Restricted Stock and the right to receive dividends thereon. Notwithstanding
the foregoing an Eligible Director shall not be entitled to transfer, sell,
pledge, hypothecate or otherwise assign the shares of Restricted Stock prior
to the Lapse Date with respect thereto (the "Transfer Restriction").
3.3 Lapse of Restrictions. The Transfer Restriction with respect to a
share of Restricted Stock shall lapse on the earlier of the following dates
(the "Lapse Date"), provided the Eligible Director is on such date a member of
the Board:
(a) the second anniversary of the date of grant of such Restricted Stock;
(b) the date of the termination of the Eligible Director's service as a
member of the Board as a result of his or her death or Disability; or
(c) the date on which a Change in Control shall occur.
3.4 Company Retention of Restricted Shares. The Restricted Stock awarded
to an Eligible Director pursuant to paragraph 3.1 of this Article 3 shall be
held by the Company until such time as the Transfer Restriction with respect
to such shares shall lapse. The Restricted Stock shall be delivered to an
Eligible Director as soon as practicable following the Lapse Date with respect
thereto, provided that the Eligible Director has satisfied all applicable tax
withholding requirements with respect to such Restricted Stock.
3.5 Forfeiture of Restricted Shares. Upon the termination of the Eligible
Director's service as a member of the Board for any reason other than death or
Disability, all shares of Restricted Stock in respect of which the Transfer
Restriction has not previously lapsed in accordance with paragraph 3.3 of this
Article 3 shall be forfeited to the Company at no cost.
ARTICLE 4
ANNUAL RETAINER DEFERRAL ELECTION
4.1 Deferral Election. On or within ninety (90) days prior to the date of
the commencement of each Plan Year, each Eligible Director may make an
irrevocable election to defer the payment of either (a) fifty percent (50%) of
the Annual Retainer for such Plan Year, or (b) one-hundred percent (100%) of
the Annual Retainer for such Plan Year (such percentage, the "Deferral
Percentage"); provided, however, that each Eligible Director may make such
election on or before Marcy 31, 1999 with respect to the unpaid $15,000
balance of the Annual Retainer for the Plan Year 1998-1999. A Deferral
Election for a Plan Year shall be made by submitting an Election Form to the
Plan Administrator.
4.2 Stock Unit Account. Upon receipt by the Plan Administrator of a
Participant's Election Form, the Company shall establish on its books a
memorandum account designated as that Participant's Stock Unit Account with
respect to such Election Form and credit to such Stock Unit Account a number
of Stock Units equal to the Deferral Amount divided by the Fair Market Value
of the Common Stock as of the last business day of the calendar month
immediately preceding the date of receipt of the Election Form; provided,
however, that in the case of any election for the Plan Year 1998-1999 Stock
Units shall be computed on the basis of the Fair Market Value of the Common
Stock on March 12, 1999. Each Stock Unit shall represent the right to receive
one share of Common Stock at the time or times set forth in the Deferral
Election.
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4.3 Payment Schedule. The Deferral Election shall specify a schedule for
delivery of the Common Stock represented by a Participant's Stock Unit Account
with respect to such Election Form. Such schedule may consist of: (a) a date
certain, (b) annual installments (not in excess of ten) commencing on a date
specified in the Election Form, (c) the date of termination of the
Participant's service as a Director; provided, however, that any delivery of
Common Stock scheduled to be made with respect to the date of termination of
the Participant's service as a Director shall be made within thirty (30) days
following such date, or (d) the date of the Participant's death, provided,
however, that any delivery of Common Stock scheduled to be made with respect
to the Participant's date of death shall be made within thirty (30) days
following the date on which the Plan Administrator receives notice of such
Participant's death.
4.4 Dividends on Stock Units. In the event a dividend is paid with
respect to the Common Stock, whether in cash or other property (other than
Common Stock), each Participant shall receive an amount equal to one hundred
and fifteen percent (115%) of such dividend for each Stock Unit credited to
such Participant's Stock Unit Account as of the record date for the payment of
such dividend. Dividends shall not be paid on fractional Stock Units.
4.5 Stock Unit Dividend Equivalents. In the event a dividend consisting
of Common Stock is paid with respect to the Common Stock, each Participant's
Stock Unit Account shall be credited with the number of Stock Units equal to
the number of Stock Units credited to such account on the record date for the
payment of such dividend, multiplied by the number of shares of Common Stock
paid as a dividend per share. Fractional shares shall be rounded to the
nearest whole number of shares.
4.6 Change in Capitalization. In the case of a Change in Capitalization,
the Plan Administrator in good faith shall take such action as it deems
necessary to preserve the economic value of the Stock Unit Account immediately
prior to the Change in Capitalization. For purpose of this paragraph 4.6,
"Change in Capitalization" shall mean any increase or reduction in the number
of shares of Common Stock, or any change in such shares, or exchange of such
shares for a different number or kind of shares or other securities of the
Company or another corporation, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination or exchange
of shares, repurchase of shares, change in corporate structure or otherwise.
4.7 Vesting. At all times a Participant shall be fully vested in his or
her Stock Unit Account.
4.8 Voting Rights. A Participant shall have no voting rights with respect
to his or her Stock Units or Stock Unit Account.
ARTICLE 5
PAYMENT OF DEFERRED COMPENSATION
5.1 Form of Payment. All payments to a Participant with respect to a
Stock Unit Account shall be made in shares of Common Stock (rounded to the
nearest whole number of shares) in accordance with the schedules selected by
such Participant in his or her Election Forms. The number of Stock Units in
such Participant's Stock Unit Account shall be reduced by the number of shares
delivered.
5.2 Acceleration of Payments. Notwithstanding any other provision of this
Plan to the contrary, upon a Participant's Substantial Hardship (or in the
event of the Participant's death, his beneficiary's Substantial Hardship), and
with the consent of the Plan Administrator, a Participant (or in the event of
the Participant's death, his beneficiary) may receive shares of Common Stock
in respect of such portion of his Stock Unit Account as the Plan Administrator
determines is necessary to satisfy the Participant's financial emergency (or
in the event of the Participant's death, his beneficiary's financial
emergency).
5.3 Taxes. The deliver of shares of Common Stock pursuant to this Plan is
conditioned on the Participant's payment to the Company of all applicable
withholding taxes.
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ARTICLE 6
BENEFICIARY DESIGNATION
6.1 Beneficiary. Each Participant shall designate on the Election Form
one or more primary beneficiaries and one or more contingent beneficiaries to
receive any payments of Common Stock under this Plan after the death of such
Participant.
6.2 Change of Beneficiary. A Participant shall have the right to change
his or her beneficiaries upon such form as may be prescribed by the Plan
Administrator.
6.3 Acknowledgement. No designation or change in designation of a
beneficiary shall be effective until actually received and acknowledged in
writing by the Plan Administrator. Upon such receipt and acknowledgement, all
prior beneficiary designations of a Participant shall be of no further force
and effect. The Plan Administrator shall be entitled to rely on the most
recent beneficiary designation in effect prior to a Participant's death.
6.4 No Beneficiary Designation. If a Participant fails to designate a
beneficiary as provided in this Article 6, or if all designated beneficiaries
who are natural person shall have predeceased the Participant or die prior to
the distribution of the Participant's Common Stock, such Participant's Common
Stock shall be paid to his or her surviving spouse or, if the Participant has
no surviving spouse, to the Participant's estate.
6.5 Doubt as to Beneficiary. If the Plan Administrator is in doubt as to
a Participant's beneficiary, the Plan Administrator may withhold payments
under the Plan until the Plan Administrator has resolved its doubts to its
satisfaction.
ARTICLE 7
ADMINISTRATION
7.1 Plan Administration. The Plan shall be administered by the Board;
provided, however, that the Board in its discretion may appoint a Plan
Administrator to administer the Plan. If designated by the Board, the Plan
Administrator may be one individual or a committee of two or more persons. Any
reference herein to the Plan Administrator which relates to the administration
of the Plan shall be considered to refer to the Board if no Plan Administrator
has been designated by the Board. The Board may, upon resolution, delegate
some or all of its powers with respect to the administration of the Plan to
the Plan Administrator. The Plan Administrator shall have only such powers as
may be so delegated.
7.2 Amendment or Termination. The Board may amend, suspend or terminate
this Plan at any time. Notwithstanding anything to the contrary contained
herein, no such amendment, suspension or termination of this Plan shall
adversely affect a Participant's rights under this Plan; provided, however,
that the Board shall be authorized to terminate this Plan at any time and
cause all amounts in respect of the Stock Unit Accounts to be distributed at
such time or times as it shall determine.
ARTICLE 8
FUNDING
8.1 Funding. The Company will pay the entire cost of the Plan. It is the
intent of the Company to make payments under this Plan as they become payable
from the general assets of the Company. The Participants in this Plan shall
have the status of general unsecured creditors of the Company with respect to
their Stock Unit Accounts. The crediting of Stock Units to a Participant's
Stock Unit Account constitutes a mere promise by the Company to make payment
sin the future. The Company and the Participants intend that the deferral
arrangements hereunder be unfunded for tax purposes and for purposes of Title
I of the Employee Retirement Income Security Act of 1974 as amended (ERISA).
ARTICLE 9
MISCELLANEOUS
9.1 Assignability. The right to receive benefits under the Plan may not
be anticipated, alienated, sold, transferred, assigned, pledged, encumbered or
subjected to any garnishment, charge or legal process.
9.2 Expenses. The Company shall bear all expenses incurred in
administering this Plan and no part thereof shall be charged against any
Participant's Stock Unit Account or any amounts distributable hereunder.
5
9.3 Taxes. All amounts which are credited to a Stock Unit Account and/or
which are payable pursuant to this Plan (including the issuance or vesting of
Restricted Stock) shall be subject to all applicable withholding and other
employment taxes.
9.4 No Right to Continued Service. Nothing in the Plan shall be deemed to
create any obligation on the part of the Board to nominate any Eligible
Director for reelection by the Company's shareholders or to limit the rights
of the shareholders or the Board to remove any Eligible Director.
9.5 Captions. The captions of the articles, sections and paragraphs of
the Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
9.6 Governing Law. All questions pertaining to the construction,
validity, interpretation and effect of the Plan shall be determined in
accordance with the laws of the United States of America and the State of
Delaware.
9.7 Effective Date. This Plan shall be effective on the date of its
adoption by the Board.
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EXHIBIT 4.8
ATLANTIC TELE-NETWORK, INC.
FORM OF
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of the ______ day of __________, 200__ (the
"Grant Date"), between ATLANTIC TELE-NETWORK, INC., a Delaware corporation
(the "Company"), and ______________ (the "Optionee").
WHEREAS, the Company has adopted the ATLANTIC TELE-NETWORK, INC. 1998
Stock Option (the "Plan"), in order to provide additional incentive to certain
employees, officers, consultants and directors of the Company and its
Subsidiaries; and
WHEREAS, the Committee responsible for administration of the Plan has
determined to grant an option to the Optionee as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and option (the
"Option") to purchase all or any part of an aggregate of _______ whole Shares
subject to, and in accordance with, the terms and condition set forth in this
Agreement.
1.2 The Option is intended to qualify as an Incentive Stock Option within
the meaning of Section 422 of the Code and shall be so construed; provided,
however, that nothing in this Agreement shall be interpreted as a
representation, guarantee or undertaking on the part of the Company that the
Option is or will be determined to be an Incentive Stock Option within the
meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and consistent with,
and subject to, the provisions of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase Shares upon
the exercise of the Option shall be $_______ per Share. This price is not less
than 100% of the Fair Market Value of the Shares on the Grant Date of this
Option.
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner provided
herein for a period of ten (10) years from the Grant Date (the "Exercise
Term"); provided, however, that the Options may be earlier terminated as
provided in Section 6 hereof. Notwithstanding any provision of this Option to
the contrary, in no event may this Option be exercised after ten (10) years
from the Grant Date of this Option.
4. Exercisability of Option.
Unless otherwise provided in this Agreement or the Plan, the Option shall
entitle the Employee to purchase, in whole at any time or in part from time to
time, ____% of the total number of Shares covered by the Option after the
expiration of one (1) year from the Grant Date and an additional ____% of the
total number of Shares covered by the Option after the expiration of each of
the second and third anniversaries of the Grant Date, and each such right of
purchase shall be cumulative and shall continue, unless sooner exercised or
terminated as herein provided, during the remaining period of the Exercise
Term. Any fractional number of Shares resulting from the application of the
foregoing percentages shall be rounded to the next higher whole number of
Shares.
1
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the Plan
(including without limitation, any alternative method of exercise and
payment), the Option may be exercised by delivery of written notice to the
Company, at its principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of Shares in
respect of which the Option is being exercised and shall be signed by the
person or persons exercising the Option. If requested by the Committee, such
person or persons shall (i) deliver this Agreement to the Secretary of the
Company who shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to exercise the
Option.
5.2 The notice of exercise described in Section 5.1 hereof shall be
accompanied by the full purchase price for the Shares in respect of which the
Option is being exercised, in cash, by check, by transferring Shares to the
Company having a Fair Market Value on the day preceding the date of exercise
equal to the cash amount for which such Shares are substituted, or by
documentation with respect to the cashless exercise procedures described in
Section 5.8 of the Plan.
5.3 Upon receipt of notice of exercise and full payment for the Shares in
respect of which the Option is being exercised, the Company shall, subject to
Section 12 of the Plan, take such action as may be necessary to effect the
transfer to the Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or to have any
of the rights of a holder with respect to any Shares subject to the Option
until (i) the Option shall have been exercised pursuant to the terms of this
Agreement and the Optionee shall have paid the full purchase price for the
number of Shares in respect of which the Option was exercised, (ii) the
Company shall have issued and delivered the Shares to the Optionee, and
(iii) the Optionee's name shall have been entered as a stockholder of record
on the books of the Company, whereupon the Optionee shall have full voting,
dividend and other ownership rights with respect to such Shares.
6. Termination of Employment. The Option, to the extent not exercisable
on the date of termination of employment, shall terminate on the date of
termination of employment, and to the extent exercisable on the date of
termination of employment, shall terminate as follows:
6.1 If the employment of the Optionee is terminated by the Company for
any reason other than Disability, death of Cause or voluntarily by the
Optionee, the Optionee may, for a period of ninety (90) days after such
termination, exercise his or her Option to the extent, and only to the extent,
that such Option or portion thereof shall be vested and exercisable as for the
date of such termination, after which time the Option shall automatically
terminate in full.
6.2 If the employment of the Optionee is terminated voluntarily by the
Optionee, the Optionee may, for a period of ten (10) days after such
termination, exercise his or her Option to the extent, and only to the extent,
that such Option or portion thereof shall be vested and exercisable as of the
date of such termination, after which time the Option shall automatically
terminate in full.
6.3 If the employment of the Optionee is terminated by reason of
Disability, the Optionee may, for a period of one (1) year after such
termination, exercise his or her Option to the extent, and only to the extent,
that such Option or portion thereof was vested and exercisable, as of the date
of such termination, after which time the Option shall automatically terminate
in full.
6.4 If the employment of the Optionee is terminated for Cause, the Option
granted to the Optionee hereunder shall immediately terminate in full and no
rights thereunder may be exercised.
6.5 If the employment of the Optionee is terminated by reason of death,
the Option may be exercised at any time within one (1) year after the
Optionee's death by the person or persons to whom such rights under the Option
shall pass by will, or by the laws of descent or distribution, after which
time the Option shall terminate in full. If the Optionee dies within three (3)
months after termination as described in Section 6.1 hereof, within ten (10)
days after termination as described in Section 6.2 hereof or within one (1)
year after termination as described in Section 6.3 hereof, the Option granted
to the Optionee may be exercised at any time within one (1) year after the
Optionee's death by the person or persons to whom such rights under the Option
shall pass by will, or by the laws of descent or distribution, after which
time the Option shall terminate in full; provided, however, that an Option may
be exercised to the extent, and only to the extent, that the Option or portion
thereof shall be exercisable on the date of death or earlier termination of
the Optionee's employment.
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7. Nontransferability.
The Option shall not be transferable other than by will or by the laws of
descent and distribution or pursuant to a domestic relations order (as
contemplated by the Plan). The Option shall be exercisable only by the
Optionee or the Optionee's guardian or legal representative during the
lifetime of the Optionee.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or construed
to confer upon the Optionee any right with respect to continuance of
employment by the Company, nor shall this Agreement or the Plan interfere in
any way with the right of the Company to terminate the Optionee's employment
at any time.
9. Adjustments.
In the event of a Change in Capitalization, liquidation or dissolution of
the Company or merger or consolidation of the Company, the Committee may make
appropriate adjustments to the number and class of Shares or other stock or
securities subject to the Option and the purchase price for such Shares or
other stock or securities. The Committee's adjustment shall be made in
accordance with the provisions of Section 7 of the Plan and shall be effective
and final, binding and conclusive for all purposes of the Plan and this
Agreement.
10. Withholding of Taxes.
If the Optionee is entitled to receive Shares upon exercise of the
Option, the Optionee shall pay to the Company in cash prior to the issuance of
such Shares an amount equal to the federal, state and local income taxes and
other amounts as may be required by law to be withhold (the "Withholding
Taxes") with respect to the Option. In satisfaction of the Withholding Taxes,
the Optionee may make a written election (the "Tax Election"), which may be
excepted or rejected in the discretion of the Committee, to have withheld a
portion of the Shares issuable to him or her upon exercise of the Option,
having an aggregate Fair Market Value, on the date preceding the date of such
issuance, equal to the Withholding Taxes.
11. Disqualifying Dispositions.
If the Optionee makes a disposition, within the meaning of Section 424(c)
of the Code and the regulations promulgated thereunder, of any Share or Shares
issued to the Optionee pursuant to his exercise of the Option within the
two-year period commencing on the day after the grant date or within the
one-period commencing on the day after the date of transfer of such Share or
Shares to the Optionee pursuant to such exercise, the Optionee shall, within
ten (10) days after such disposition, notify the Company thereof, by delivery
of a written notice to the Secretary of the Company, and immediately deliver
to the Company the amount of all applicable withholding taxes, if any, under
Federal, state and local law.
12. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan and agrees
to be bound by all the terms and provisions thereof.
13. Modification of Agreement.
This Agreement may be modified, amended, suspended or terminated, and any
terms or conditions may be waived, but only by a written instrument executed
by the parties hereto.
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14. Severability.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force in accordance with their terms.
15. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
16. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit of the
Optionee's legal representatives. All obligations imposed upon the Optionee
and all rights granted to the Company under this Agreement shall be final,
binding and conclusive upon the Optionee's heirs, executors, administrators
and successors.
17. Resolution of Disputes.
Any dispute or disagreement which may arise under, or a result of, or in
any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made
hereunder shall be final, binding and conclusive on the Optionee and Company
for all purposes.
ATLANTIC TELE-NETWORK, INC.
By:________________________________
_____________________________________
[Name of Optionee]
Exhibit 5
May 31, 2001
Atlantic Tele-Network, Inc.
19 Estate Thomas
Havensite
P.O. Box 12030
St. Thomas, U.S. Virgin Islands 00801
Re: Atlantic Tele-Network, Inc. 1998 Stock Option Plan
Atlantic Tele-Network, Inc. Directors' Remuneration Plan
Registration Statement on Form S-8
Ladies and Gentlemen::
We are special counsel for Atlantic Tele-Network, Inc., a Delaware
corporation (the "Company"), and issue the following opinion in connection
with a Registration Statement on Form S-8 (the "Registration Statement"), to
be filed by the Company under the Securities Act of 1933, as amended (the
"Act"), with respect to the offering by the Company of up to 350,000 shares of
its Common Stock, par value $.01 per share (the "Shares"), in connection with
the Company's 1998 Stock Option Plan and the Company's Directors' Remuneration
Plan (collectively, the "Plans").
We have examined the Restated Certificate of Incorporation and the
By-laws of the Company, each as amended, resolutions adopted by the Board of
Directors of the Company, certificates of officers of the Company covering
various matters, and such other documents, corporate records, certificates of
public officials and instruments as we have considered necessary or advisable
for the purpose of this opinion. We have assumed the authenticity of all
documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies. We have not
independently verified such information and assumptions.
We are members of the Bar of the State of Connecticut and we express no
opinion as to the law of any jurisdiction other than the laws of the State of
Connecticut and Delaware General Corporation Law.
Subject to the foregoing and based on such examination and review, we are
of the opinion that:
When the Shares have been issued and delivered against payment therefor
in accordance with the applicable provisions of the Plans, the Shares issued
pursuant to the Plans will be duly authorized, validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of this Act, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ DAY BERRY & HOWARD LLP
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our reports dated
March 2, 2001, included in Atlantic Tele-Network, Inc.'s Annual Report on Form
10-K for the year ended December 31, 2000.
/s/ Arthur Andersen LLP
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Atlanta, Georgia
May 31, 2001