EXHIBIT 4.6
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made as of the __ day of May, 2001 (this
"Agreement"), between Globecomm Systems Inc., a Delaware corporation (the
"Purchaser"), and Xxxxxx Network Systems, a division of Xxxxxx Electronics
Corporation, a Delaware corporation (the "Seller").
In consideration of the mutual covenants set forth herein, the parties
agree as follows:
1. PURCHASE AND SALE OF SHARES.
1.1 Subject to the terms and conditions of this Agreement, the Purchaser
shall purchase from the Seller and the Seller shall sell to the
Purchaser, at the Closing (as hereinafter defined), that number of
shares of common stock, $.001 par value, (the "Shares") of NetSat
Express, Inc. ("NetSat") set forth opposite its name in Schedule I
hereto.
1.2 The closing of the purchase and sale of the Shares (the "Closing")
will take place at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M. New York time on
such date as shall be mutually agreed to by the parties hereto.
1.3 At the Closing, the Seller will deliver to the Purchaser good and
valid title to the Shares free and clear of any liens, charges,
encumbrances, security interests, options or rights or claims of
others with respect thereto, by (i) delivering to the Purchaser
certificates for the Shares, duly endorsed in blank or accompanied
by the appropriate instruments of assignment duly executed in blank,
and (ii) having all requisite stock transfer stamps attached.
1.4 As payment in full of the purchase price for the Shares, and against
delivery of the certificates evidencing the Shares as aforesaid, the
Purchaser shall:
(i) issue and deliver to the Seller at the Closing, a certificate
representing the number of shares (the "Purchaser Shares") of common
stock, $.001 par value per share, of the Purchaser ("Purchaser
Common Stock") set forth opposite the name of the Seller in Schedule
I hereto under the heading "Purchaser Shares Issued at Closing";
(ii) issue to the Seller at the Closing a warrant, substantially in
the form attached hereto as Exhibit A (the "Warrant"), to purchase
the number of shares (the "Warrant Shares") of Purchaser Common
Stock set forth opposite the name of the Seller in Schedule I hereto
under the heading "Warrants Issued at Closing"; and
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(iii) pay to the Seller at the Closing by wire transfer the
principal amount set forth opposite the name of the Seller in
Schedule I hereto (the "Cash") under the heading "Cash Paid at
Closing."
2. INVESTMENT REPRESENTATIONS OF THE PURCHASER. The Purchaser hereby
represents and warrants to the Seller as follows:
2.1 The Purchaser is duly incorporated, validly existing and in good
standing under the laws of Delaware, and has full legal right, power
and authority to enter into, execute, deliver and perform this
Agreement and the Warrant, and to consummate the transactions
contemplated hereby and thereby. The Purchaser has taken all
corporate action necessary for the execution and delivery of this
Agreement and the Warrant, and the consummation of the transactions
contemplated hereby and thereby. Each of this Agreement and the
Warrant has been duly executed and delivered and constitutes the
legal, valid and binding obligation of the Purchaser and is
enforceable with respect to the Purchaser in accordance with its
terms, except (a) as enforcement may be limited by bankruptcy,
insolvency, priority or other laws or court decisions relating to or
affecting generally the enforcement of creditors' rights or
affecting generally the availability of equitable remedies and (b)
to the extent the indemnification provisions contained herein may be
limited by applicable federal or state securities laws.
2.2 The Purchaser Common Stock that is being issued to the Seller
hereunder and the Warrant Shares, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration
expressed herein, will be duly and validly issued, fully paid and
nonassessable.
2.3 The execution and delivery by the Purchaser of this Agreement and
the Warrant, and the consummation of the transactions contemplated
hereby and thereby, do not and shall not with or without the giving
of notice or the passage of time, violate, conflict with, or result
in a breach of, or a default or loss of rights under, any material
covenant, agreement, mortgage, indenture, lease or instrument to
which the Purchaser is a party or by which the Purchaser or any of
its assets is bound or any judgment, order, decree, law, rule or
regulation to which the Purchaser or any of its assets is subject.
2.4 If, within one hundred twenty (120) days from the date hereof, the
Purchaser purchases or commits to purchase shares of common stock,
convertible preferred stock, warrants to purchase shares of common
stock or convertible indebtedness of NetSat from a third party on
terms materially more favorable to such third party than the terms
provided herein to the Seller, the Purchaser shall provide notice of
such transaction to the Seller within fifteen (15) days of the close
of such transaction. Within a reasonable period of time of the
provision of such notice, the Purchaser shall take such action as
shall be necessary to put the Seller in the same economic position
the Seller would have been in had the Seller sold the Shares under
the same terms as the aforementioned third party, giving effect
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to any difference in the aggregate number of shares of NetSat sold
by the Seller and such third party.
2.5 As of their respective filing dates, the Company's annual report on
Form 10-K for its fiscal year ended June 30, 2000, its quarterly
reports on Form 10-Q for its fiscal quarters ended September 30,
2000 and December 31, 2000 and its proxy statement to stockholders
as filed with the Securities and Exchange Commission (the "SEC") on
October 13, 2000 did not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements made therein, in light of the circumstances under which
they were made, not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby represents
and warrants to the Purchaser as follows:
3.1 The Seller has full legal right, power and authority to enter into,
execute, deliver and perform this Agreement. The Seller has taken
all corporate action necessary for the execution and delivery of
this Agreement. This Agreement has been duly executed and delivered
and constitutes the legal, valid and binding obligation of the
Seller and is enforceable with respect to the Seller in accordance
with its terms, except (a) as enforcement may be limited by
bankruptcy, insolvency, priority or other laws or court decisions
relating to or affecting generally the enforcement of creditors'
rights or affecting generally the availability of equitable remedies
and (b) to the extent the indemnification provisions contained
herein may be limited by applicable federal or state securities
laws.
3.2 The Seller is the lawful holder of record and beneficial owner of
that number of Shares set forth opposite the Seller's name in
Schedule I hereto, free and clear of any and all pledges, ----------
security interests, liens or other encumbrances. The delivery by the
Seller of certificates or instruments and agreements evidencing the
Shares, duly endorsed for transfer or accompanied by stock transfer
powers duly endorsed in blank, to the Purchaser pursuant to Section
1 above, against payment as provided in Section 1 above, will
transfer valid title to the Shares to the Purchaser, free and clear
of any and all pledges, security interests, liens or other
encumbrances.
3.3 The Seller has had the opportunity to ask questions of, and receive
answers from, officers of the Purchaser with respect to the business
and financial condition of the Purchaser and the terms and
conditions of the sale of the Purchaser Shares and the Warrant and
to obtain additional information necessary to verify such
information.
3.4 The Seller is acquiring the Purchaser Shares and the Warrant for the
Seller's own account for investment purposes only, not as a nominee
or agent, and not with a view to the resale or distribution of any
part thereof. The Seller is an "accredited investor" within the
meaning of Rule 501 of Regulation D of the Securities Act of 1933,
as amended (the "Securities Act"). The Seller further represents
that it does
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not have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to such person
or to any third person, with respect to any of the Purchaser Shares
or the Warrant. In addition to restrictions on transfer of the
Warrant and the Warrant Shares set forth in the Warrant, the Seller
understands that until the Purchaser Shares may be sold pursuant to
Rule 144 under the Securities Act without any restriction, each
certificate or instrument representing the Purchaser Shares shall be
imprinted with a legend in substantially the following form (and a
stop transfer order may be placed against transfer of the
certificates representing the Purchaser Shares):
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD OR OFFERED FOR SALE
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
ACT OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
4. REGISTRATION RIGHTS OF THE PURCHASER SHARES.
4.1 Registration Procedures. Purchaser will:
(a) use commercially reasonable efforts to file with the SEC the
Registration Statement on Form S-3 (the "Registration
Statement") relating to the sale of the Purchaser Shares and
the Warrant Shares by the Seller and other holders of NetSat
capital stock in connection with the sale of their shares of
NetSat capital stock to the Purchaser, including any shares
of Common Stock of the Purchaser underlying any warrants
issued in connection therewith (the "Additional Shares")
from time to time on the Nasdaq National Market or the
facilities of any national securities exchange on which the
Purchaser Common Stock is then traded or in
privately-negotiated transactions, as soon as practicable
from the date hereof, but in any event within the later to
occur of (i) the date sixty (60) days from the date hereof
or (b) the date the Purchaser shall have received the
information contained on the certificate from the Seller as
set forth in Section 4.1(g) below;
(b) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to cause
the Registration Statement to become and remain effective
for two years after the effective date of the Registration
Statement, provided that if, during the period the
Registration Statement is required to be kept effective, the
Purchaser delivers a certificate, stating
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that, in the good faith, reasonable judgment of the Board of
Directors of the Purchaser, it would be seriously
detrimental to the Purchaser and its stockholders for the
Registration Statement to be kept effective during a
specified period of time not to exceed thirty (30) days (the
"Blackout Period"), then the Purchaser shall not be
obligated to keep the Registration Statement effective, and
the Seller shall not sell any of its Purchaser Shares or
Warrant Shares covered by the Registration Statement, during
such Blackout Period (provided, however, the Seller shall be
permitted to sell its Purchaser Shares and Warrant Shares
during such Blackout Period pursuant to an exemption from
the registration requirements of the Securities Act and any
applicable state securities laws). After the termination of
such Blackout Period, the Purchaser shall file an amendment
to the Registration Statement or a new registration
statement with respect to the unsold portion of the
Purchaser Shares, Warrant Shares and Additional Shares
included in the original Registration Statement and shall
keep such amendment or new registration statement effective
for a period of two years less the ---- number of days the
original Registration Statement was kept effective;
(c) furnish to the Seller with respect to the Purchaser Shares
and Warrant Shares registered under the Registration
Statement such reasonable number of copies of prospectuses
and such other documents as the Seller may reasonably
request, in order to facilitate the public sale or other
disposition of all or any of the Purchaser Shares and
Warrant Shares by the Seller; provided, however, that the
obligation of the Purchaser to deliver copies of
prospectuses to the Seller shall be subject to the receipt
by the Purchaser of reasonable assurances from the Seller
that the Seller will comply with the applicable provisions
of the Securities Act and of such other securities or blue
sky laws as may be applicable in connection with any use of
such prospectuses;
(d) file documents required of the Purchaser for normal Blue Sky
clearance in states specified in writing by the Seller;
provided, however, that the Purchaser shall not be required
to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or
has not so consented;
(e) prepare and promptly file with the SEC and promptly notify
the Seller of the filing of such amendment or supplement to
the Registration Statement or prospectus as may be necessary
to correct any statements or omissions if, at the time when
a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have
occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not
misleading;
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(f) advise the Seller promptly after it shall receive notice of
the issuance of any stop order by the SEC suspending the
effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that
purpose, and promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued;
(g) in connection with the Registration Statement, the Seller
will furnish to Purchaser in writing such information with
respect to itself and the proposed distribution as is
contained on the certificate attached hereto as Exhibit C;
and
(h) if the Registration Statement is not declared effective
within one hundred twenty (120) days of the date hereof,
then the one hundred twenty (120) day time period specified
in Section 2.4 herein shall be extended until such date as
the Registration Statement is declared effective.
4.2 Expenses. The Seller shall bear all reasonable expenses pro
rata in connection with the procedures in Section 4.1 and
the registration of the Purchaser Shares, the Warrant Shares
and the Additional Shares pursuant to the Registration
Statement, including the fees and expenses of counsel or
other advisers to the Purchaser; provided, however, that the
fees and expenses to be paid by the Seller and other holders
listed on the initial Registration Statement shall not
exceed $50,000. In the event any other holders of the
Purchaser's capital stock shall have their shares registered
on the Registration Statement pursuant to the exercise of
"piggyback" or other registration rights, they shall be
required to pay their portion of the expenses incurred in
connection with the registration of such shares.
4.3 Transfer of the Purchaser Shares and Warrant Shares after
Registration. The Seller agrees that it will not effect any
disposition of the Purchaser Shares or Warrant Shares or its
right to purchase the Purchaser Shares or Warrant Shares
that would constitute a sale within the meaning of the
Securities Act, except as contemplated in the Registration
Statement referred to in Section 4.1 or pursuant to an
exemption from the registration requirements under the
Securities Act and applicable state securities laws, and
that it will promptly notify the Purchaser of any changes in
the information set forth in the Registration Statement
regarding the Seller or its plan of distribution.
4.4 Indemnification.
(a) To the extent permitted by law, the Purchaser will indemnify
and hold harmless the Seller and each person, if any, who
controls the Seller within the meaning of the Securities Act
or the Securities Act of 1934, as amended (the "1934 Act"),
against any losses, claims, damages, or liabilities (joint
or several) to which they may become subject under the
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Securities Act, or the 1934 Act, insofar as such losses,
claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated
therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by
the Purchaser of the Securities Act, the 1934 Act, or any
rule or regulation promulgated under the Securities Act, or
the 1934 Act; and the Purchaser will pay to each such Seller
or controlling person, any legal or other expenses
reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement
contained in this subsection 4.4(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without
the consent of the Purchaser (which consent shall not be
unreasonably withheld), nor shall the Purchaser be liable in
any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for
use in connection with the registration by the Seller.
(b) To the extent permitted by law, the Seller will indemnify
and hold harmless the Purchaser, each of its directors, each
of its officers who has signed the registration statement,
each person, if any, who controls the Purchaser within the
meaning of the Securities Act or the 1934 Act, any other
security holder selling securities in the Registration
Statement and any controlling person of any other security
holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may
become subject, under the Securities Act, or the 1934 Act,
insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon written
information furnished by and concerning the Seller expressly
for use in connection with such registration; and the Seller
will pay any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this
subsection 4.4(b), in connection with investigating or
defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement
contained in this subsection 4.4(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without
the consent of the Seller, which consent shall not be
unreasonably withheld; provided further that in no event
shall any indemnity under this subsection 4.4(b) exceed the
gross proceeds from the offering received by the Seller.
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(c) Promptly after receipt by an indemnified party under this
Section 4.4 of notice of the commencement of any action
(including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 4.4, deliver to
the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified
parties which may be represented without conflict by one
counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the
indemnified party under this Section 4.4, but the omission
so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.4.
(d) If the indemnification provided for in this Section 4.4 is
held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any loss, liability,
claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement or
omission.
(e) The obligations of the Purchaser and the Seller under this
Section 4.4 shall survive the completion of any offering of
Purchaser Shares in a registration statement under this
Section 4.4, and otherwise.
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4.5 Form S-3 Eligibility. The Purchaser is eligible to use Form S-3 for
registration under the Securities Act, and shall use its reasonable
best efforts to remain so eligible during the period of time in
which the Registration Statement is required to be kept effective
pursuant to Section 4.1(b) hereof. The Purchaser shall use its
reasonable best efforts to file any form, report or other document
with the Nasdaq National Market to ensure that the Purchaser Shares,
the Warrant Shares and the Additional Shares are admitted for
quotation on the Nasdaq National Market.
5. CONDITIONS OF THE PURCHASER'S OBLIGATIONS AT CLOSING. The obligations of
the Purchaser under Section 1 of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
5.1 Representations and Warranties. The representations and warranties
of the Seller contained in Section 3 shall be true and correct on
and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date
of such Closing.
5.2 Release. The Seller shall deliver to the Purchaser a Release,
substantially in the form attached hereto as Exhibit B (the
"Release").
5.3 Consents. Any required consent for the sale of the Shares by the
Seller hereunder under any agreement, contract or license shall have
been obtained.
6. CONDITIONS OF THE SELLER'S OBLIGATIONS AT CLOSING. The obligations of the
Seller under Section 1 of this Agreement are subject to the fulfillment on
or before the Closing of each of the following conditions:
6.1 Representations and Warranties. The representations and warranties
of the Purchaser contained in Section 2 shall be true and correct on
and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date
of such Closing.
6.2 Warrant. The Purchaser shall deliver to the Seller a Warrant to
purchase the Warrant Shares.
6.3 Consents. Any required consent for the purchase of the Shares by the
Purchaser hereunder under any agreement, contract or license shall
have been obtained.
7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York.
7.2 Amendment. Any provision may be amended only by the written consent
of the Seller and the Purchaser, provided that any party hereto may
waive any of its rights hereunder without obtaining the consent of
the other parties hereto.
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7.3 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given upon personal delivery
to the party (including, but not limited to by nationally recognized
courier or overnight delivery service) to be notified or five (5)
days after deposit in the United States mail, by registered or
certified mail, postage prepaid and properly addressed to the party
to be notified as set forth on the signature page hereof, with
copies to their respective counsel, Xxxxxx Network Systems, Legal
Department, with a copy to Xx. Xxxxx Xxxxxxxx, Executive Vice
President and Chief Financial Officer, in the case of the Seller,
and Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, Attention: Xxxx Xxxxxxx Xxxxxx,
Esq., 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the
case of the Purchaser, or at such other address as such party may
designate by written notice to the other parties hereto.
7.4 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
7.5 Successors and Assigns. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto
and their respective heirs, administrators, executors, personal
representatives, successors and assigns, and nothing herein is
intended to confer any right, remedy or benefit upon any other
person. This Agreement may not be assigned by any party hereto
except with the prior written consent of the other party, which
consent shall not be unreasonably withheld.
7.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Stock Purchase Agreement
as of the date first above written.
THE PURCHASER:
GLOBECOMM SYSTEMS INC.
By:
----------------------------------------
Name: Xxxxxx X. Xxxxx, CFO and VP
Address: 00 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
THE SELLER:
XXXXXX NETWORK SYSTEMS,
A XXXXXX ELECTRONICS COMPANY
By:
----------------------------------------
Name:
Address:
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SCHEDULE I
SELLER
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NAME NUMBER OF NUMBER OF PURCHASER WARRANTS ISSUED AT CASH PAID AT CLOSING
SHARES OF SHARES OF SHARES ISSUED CLOSING
NETSAT COMMON PREFERRED AT CLOSING
STOCK STOCK
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Network Systems 600,000 N/A 60,000 67,500 $150,000
-------------------------------------------------------------------------------------------------------------------------
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Exhibit A
---------
Form of Warrant
NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE HEREOF,
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
QUALIFIED UNDER THE APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION (THE
"LAW"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE ISSUED UPON
EXERCISE HEREOF WILL BE, ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NO SUCH SALE OR OTHER
DISPOSITION MAY BE MADE WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT AND QUALIFICATION UNDER THE LAW RELATED THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY (AS THAT TERM IS DEFINED BELOW) AND ITS COUNSEL,
THAT SAID REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER THE ACT AND LAW,
RESPECTIVELY.
GLOBECOMM SYSTEMS INC.
May____, 2001 67,500 Shares
of Common Stock
WARRANT FOR COMMON STOCK
This certifies that Xxxxxx Network Systems, a division of Xxxxxx
Electronics Corporation, and whose address is 11717 Exploration Lane,
Germantown, Maryland 20876 (the "Holder") is entitled to subscribe for and
purchase, subject to Section 1.4 below, during the period commencing on the date
hereof, and ending at 5:00 P.M., New York local time, on May ____, 2006, SIXTY
SEVEN THOUSAND FIVE HUNDRED (67,500) shares of fully paid and nonassessable
Common Stock, $.001 par value per share ("Common Stock"), of Globecomm Systems
Inc., a Delaware corporation (the "Company"). The purchase price of each such
share shall be the amount set forth in Section 1.3 herein (the "Warrant Price").
This Warrant shall not be assignable except to affiliates of Holder, and shall
only be exercisable, by the Holder or affiliates thereof.
1. EXERCISE; PAYMENT
1.1 Payment. The purchase rights under this Warrant may be exercised by
Holder, in whole or in part, by the surrender of this Warrant at the principal
office of the Company located at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and
by the payment to the Company, by wire transfer or by certified, cashier's or
other check acceptable to the Company, of an amount equal to the aggregate
Warrant Price of the shares being purchased.
1.2 Net Issue Exercise. In lieu of exercising this Warrant pursuant to
Section 1.1, Holder may elect to receive shares equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to Holder a number of shares of the
Company's Common Stock computed using the following formula:
X = Y (W-Z)
--------
W
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Where:
X = the number of shares of Common Stock to be issued to Holder;
Y = the number of shares of Common Stock purchasable under this Warrant
(at the date of such calculation);
W = the fair market value of one share of the Company's Common Stock
(at the date of such calculation); and
Z = Warrant Price, as set forth in Section 1.4 herein (as adjusted to the
date of such calculation as provided in Section 3 herein).
Fair Market Value. For purposes of this Section 1, "fair market value" of
one share of the Company's Common Stock shall mean the average of the closing
sale prices of such share as quoted on the Nasdaq National Market, the Nasdaq
system, or any other nationally recognized exchange or quotation system on which
the Common Stock is listed as published in The Wall Street Journal for the ten
(10) trading days prior to the date of determination of fair market value. If
the Common Stock is not traded on the Nasdaq National Market, the Nasdaq system
or any other nationally recognized exchange or quotation system, fair market
value of the Common Stock per share shall be the price per share which the
Company's Board of Directors shall determine in good faith.
1.3 Stock Certificates. In the event of any exercise of the rights to
acquire Common Stock granted under this Warrant, certificates for the shares of
Common Stock so purchased shall be delivered to Holder within a reasonable time
(but no more than five (5) days) and, unless this Warrant has been fully
exercised or has expired, a new Warrant representing the shares with respect to
which this Warrant shall not have been exercised shall also be issued to Holder
within such time.
1.4 Warrant Price. The purchase price for the shares of Common Stock to be
issued upon exercise of this Warrant shall be $11.375 per share, subject to
adjustment as provided in Section 3 herein (the "Warrant Price").
2. STOCK FULLY PAID; RESERVATION OF SHARES
The Company covenants and agrees that all securities which may be issued
upon the exercise of the rights represented by this Warrant will, upon issuance,
be fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issuance thereof (excluding taxes based on the income of Holder).
The Company further covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized and reserved for issuance a sufficient number of shares of
its Common Stock or other securities as would be required upon the full exercise
of the rights represented by this Warrant.
14
3. ADJUSTMENT
The kind of securities purchasable upon the exercise of this Warrant, the
number of shares under this Warrant and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events, as follows:
3.1 Reclassification, Consolidation or Merger. In case of: (i) any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant; (ii) any consolidation or merger of the Company with or into
another corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification, change or exchange of outstanding securities issuable upon
exercise of this Warrant); or (iii) any sale or transfer to another corporation
of all, or substantially all, of the property of the Company, then, and in each
such event, the Company or such successor or purchasing corporation, as the case
may be, shall execute a new Warrant which will provide that Holder shall have
the right to exercise such new Warrant and purchase upon such exercise, in lieu
of each share of Common Stock theretofore issuable upon exercise of this
Warrant, the kind of securities, money and property receivable upon such
reclassification, change, consolidation, merger, sale or transfer by a holder of
Common Stock issuable upon exercise of this Warrant had this Warrant been
considered exercised immediately prior to such reclassification, change,
consolidation, merger, sale or transfer. Such new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided in this Section 3, and the provisions of this Section 3 and
the provisions of this Section 3.1 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales and transfers.
3.2 Subdivisions or Combination of Shares. If the Company at any time while
this Warrant remains outstanding and unexercised, in whole or in part, (i) shall
divide its Common Stock, the Warrant Price shall be proportionately reduced and
the number of shares under this Warrant shall be proportionately increased; or
(ii) shall combine shares of its Common Stock, the Warrant Price shall be
proportionately increased and the number of shares under this Warrant shall be
proportionately reduced.
3.3 Stock Dividends. If the Company, at any time while this Warrant is
outstanding and unexpired, shall pay a dividend payable in, or make any other
distribution to shareholders of, its Common Stock (except any distribution
described in Sections 3.1 and 3.2 hereof), then and in each case, this Warrant
shall represent the right to acquire, in addition to the number of shares of the
security receivable upon exercise of this Warrant, and without payment of any
additional consideration therefor, the amount of such additional stock of the
Company which such holder would hold on the date of such exercise had it been
the holder of record of the security receivable upon exercise of this Warrant on
the date hereof and had thereafter, during the period from the date hereof to
and including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all adjustments called for during such period by the provisions of this
Section 3.
3.4 Time of Adjustments. All adjustments, unless otherwise specified
herein, shall be effective as of the earlier of:
3.4.1 the date of issuance of the security causing the adjustment;
15
3.4.2 the effective date of a division or combination of shares;
3.4.3 the record date of any action of holders of the Company's
capital stock of any class taken for the purpose of dividing or
combining shares or entitling holders of Common Stock to receive a
distribution or dividends payable in the Company's capital stock.
3.5 Notice of Adjustments. In each case of an adjustment, the Company, at
its expense, shall cause the Chief Financial Officer (or other such similar
officer) of the Company to compute such adjustments and prepare a certificate
setting forth such adjustments and showing in detail the facts upon which such
adjustment is based. The Company shall promptly mail a copy of each such
certificate to Holder pursuant to Section 13 hereof.
4. FRACTIONAL SHARES
No fractional share of Common Stock will be issued in connection with any
exercise hereof, but in lieu of a fractional share upon complete exercise
hereof, Holder may purchase a whole share at the then effective Warrant Price.
5. SHAREHOLDER RIGHTS
Holder shall not, solely by virtue hereof, be entitled to any rights of a
shareholder of the Company. Holder shall have all rights of a shareholder with
respect to securities purchased upon exercise hereof at the time the exercise
price for such securities is delivered pursuant to Section l hereof and this
Warrant is surrendered.
6. NO TRANSFER; EXCHANGE
6.1 Transfer. This Warrant shall not be transferable by the Holder except
to affiliates thereof. Any costs associated with such transfer shall be at the
Holder's expense.
6.2 Securities Laws. The Holder, by acceptance hereof, agrees that, absent
an effective registration statement under the Act and qualification under the
Securities Act of 1933, as amended (the "Securities Act"), and qualification
under applicable state securities laws, covering the disposition of Common Stock
issued or issuable upon exercise hereof, Holder will not sell or transfer any or
all of such Common Stock, except pursuant to an exemption from the registration
requirements under the Securities Act and any applicable state securities laws
or without first providing the Company with an opinion of counsel reasonably
acceptable to the Company and its counsel to the effect that such sale or
transfer will be exempt from the registration requirements of the Securities Act
and applicable state securities laws, and Holder consents to the Company making
a notation on its records in order to implement such restriction on
transferability.
6.3 Exchange. This Warrant is exchangeable at the principal office of the
Company for Warrants to purchase the same aggregate number of shares of Common
Stock purchasable hereunder, each new Warrant to represent the right to purchase
such number of shares as Holder shall designate at the time of such exchange.
16
7. LOSS OR MUTILATION
Upon receipt by the Company of evidence satisfactory to it of the ownership
of, and the loss, theft, destruction or mutilation of, this Warrant and (in the
case of loss, theft or destruction) of indemnity satisfactory to it, and (in the
case of mutilation) upon surrender and cancellation hereof, the Company will
execute and deliver in lieu hereof a new Warrant.
8. GOVERNING LAWS
The internal laws of the State of New York (irrespective of its choice of
law principles) shall govern the validity of this Warrant, the construction of
its terms, and the interpretation and enforcement of the rights and duties of
the parties hereto.
9. BINDING UPON SUCCESSORS AND ASSIGNS
Subject to, and unless otherwise provided in, this Warrant, each and all of
the covenants, terms, provisions, and agreements contained herein shall be
binding upon, and inure to the benefit of the permitted successors, executors,
heirs, representatives, administrators and assigns of the parties hereto.
10. SEVERABILITY
If any provision of this Warrant, or the application hereof, shall for any
reason and to any extent, be invalid or unenforceable, the remainder of this
Warrant and application of such provisions to other persons or circumstances
shall be interpreted so as best to reasonably effect the intent of the parties
hereto. The parties further agree to replace such void or unenforceable
provisions of this Warrant with valid or enforceable provisions which will
achieve, to the extent possible, the economic, business and other purposes of
the void or unenforceable provisions.
11. AMENDMENT
This Warrant may be amended upon the written consent of the Company and the
Holder.
12. NO WAIVER
The failure of any party to enforce any of the provisions hereof shall not
be construed to be a waiver of the right of such party thereafter to enforce
such provisions.
13. NOTICES
Whenever any party hereto desires or is required to give any notice,
demand, or request with respect to this Warrant, each such communication shall
be in writing and shall be effective only if it is delivered by personal service
or mailed, United States certified mail, postage prepaid, return receipt
requested, addressed as follows:
Company: Address set forth in Section 1 hereof
Attn: Chief Executive Officer
17
with a copy to: Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx Xxxxxx, Esq.
Holder: Address as set forth in the first paragraph hereof
Attn: Xx. Xxxxx Xxxxxxxx, Chief Financial Officer
with a copy to: Xxxxxx Network Systems, Legal Department
Such communications shall be effective when they are received by the addresses
thereof; but if sent by certified mail in the manner set forth above, they shall
be effective five (5) days after being deposited in the United States mail. Any
party may change its address for such communications by giving notice thereof to
the other party in conformity with this Section.
14. CONSTRUCTION OF AGREEMENT
A reference in this Warrant to any Section shall include a reference to
every Section the number of which begins with the number of the Section to which
reference is specifically made. The titles and headings herein are for reference
purposes only and shall not in any manner limit the construction of this Warrant
which shall be considered as a whole.
15. NO ENDORSEMENT
Holder understands that no federal or state securities administrator has
made any finding or determination relating to the fairness of investment in the
Company or purchase of the Common Stock hereunder and that no federal or state
securities administrator has recommended or endorsed the offering of securities
by the Company hereunder.
16. PRONOUNS
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
person, persons, entity or entities may require.
18
17. FURTHER ASSISTANCE
Each party agrees to cooperate fully with the other parties and to execute
such further instruments, documents and agreements and to give such further
written assurances, as may be reasonably requested by any other party to better
evidence and reflect the transactions described herein and contemplated hereby,
and to carry into effect the intents and purposes of this Warrant.
GLOBECOMM SYSTEMS INC.
----------------------------------------------
By: Xxxxxx X. Xxxxx
Chief Financial Officer and Vice President
19
FORM OF WARRANT EXERCISE
(To be signed only on exercise of Warrant)
TO _______________________
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to
(A) exercise this Warrant for, and to purchase thereunder, ______ shares of
Common Stock of Globecomm Systems Inc., a Delaware corporation, and herewith
makes payment of $__________ therefor, and requests that the certificates for
such shares be issued in the name of, and delivered to _____________, whose
address is____________________;
or
(B) under the Net Issue Exercise provision of Section 1.2 of this Warrant,
to surrender the right to purchase _______ shares of Common Stock of Globecomm
Systems Inc. pursuant to this Warrant.
Dated:
-----------------------------------------------
(Signature must conform to name of holder as
specified on the face of the Warrant)
-----------------------------------------------
(Address)
Tax Identification Number:
---------------------
Exhibit B
---------
Form of Release
RELEASE
IT IS HEREBY UNDERSTOOD, ACKNOWLEDGED, ADMITTED AND AGREED that:
1. For and in consideration of the payment from Globecomm Systems Inc.
("Globecomm") to Xxxxxx Network Systems, a division of Xxxxxx Electronics
Corporation (the "Seller") in the amount and form set forth in Schedule I to the
Stock Purchase Agreement, dated the date hereof (the "Agreement"), between
Globecomm and the Seller (as defined in the Agreement), receipt of which is
hereby acknowledged, and intending to be legally bound, the Seller for itself
and for its present and former officers, directors, stockholders,
representatives, agents, employees, attorneys, financial advisors, predecessors,
successors, affiliates, subsidiaries, parents, servants, insurers,
administrators, executors, trustees, licensees and assigns (collectively, the
"RELEASORS"), and for each of them, hereby releases, acquits and forever
discharges Globecomm and NetSat Express, Inc. ("NetSat") and Globecomm's and
NetSat's present and former officers, directors, stockholders, representatives,
agents, employees, attorneys, financial advisors, underwriters, predecessors,
successors, affiliates, subsidiaries, parents, servants, insurers,
administrators, executors, trustees, licensees and assigns (collectively, the
RELEASEES), of and from all manner of actions, suits, proceedings, and causes of
action, in law or in equity, whether foreseen or unforeseen, matured or
unmatured, known or unknown, accrued or not accrued, and of and from all direct
or indirect debts, assessments, dues, claims, losses, damages, judgments,
executions, defaults, covenants, contracts, controversies, agreements, promises,
attorneys' fees, costs, interest payments and expenses, accounts, bills,
variances, trespasses, assignments, notes, leases, rights, liabilities,
obligations and demands of any kind whatsoever concerning NetSat, including, but
not limited to, claims arising out of the management of NetSat or Globecomm's
conduct as a stockholder and/or creditor of NetSat, which RELEASORS ever had,
now have, or hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing that existed or occurred at any time prior to the date of
this Release (it being understood by Globecomm and the Seller that this Release
shall not apply to actions, suits, proceedings and causes of actions of any kind
relating to the Stock Purchase Agreement, dated May ___, 2001, between Globecomm
and the Seller and the Warrant to purchase shares of common stock of Globecomm,
dated May__, 2001).
2. This Release, together with the Agreement contains the entire agreement among
the parties hereto, and the terms of this Release are contractual and not a mere
recital.
3. This Release may not be modified except by a writing jointly signed by the
parties hereto.
4. If any of the provisions or terms of this Release shall be held for any
reason to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any of the other terms hereof, and this Release shall be construed as
if such unenforceable term had never been contained herein.
5. This Release shall be in all respects interpreted, enforced and governed by
and under the laws of the State of New York, without regard to New York
conflicts of laws principles.
6. Litigation of any dispute arising out of or relating in any way to this
Release shall only take place in a state or federal court located in New York
County, New York.
7. All parties to this Release are represented by competent counsel in
connection with the negotiation and execution of this Release and understand
fully the terms and conditions set forth herein.
IN WITNESS WHEREOF, RELEASORS and RELEASEES, intending to be legally bound,
have duly executed this Release on the date set forth below.
Agreed In Full:
RELEASEES:
GLOBECOMM SYSTEMS INC.
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Office and Vice President
RELEASOR:
XXXXXX NETWORK SYSTEMS,
a Xxxxxx Electronics company
---------------------------------------
Name:
Title:
22
Exhibit C
---------
GLOBECOMM SYSTEMS INC.
REGISTRATION STATEMENT QUESTIONNAIRE
------------------------------------
In connection with the preparation of the Registration Statement to be
filed in connection with the Stock Purchase Agreement between Globecomm Systems
Inc., a Delaware corporation ("Globecomm"), and Xxxxxx Network Systems, please
provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your organization's name exactly as it should appear in
the Registration Statement:
2. Please provide the number of shares of Globecomm capital stock (the
"Shares") that you or your organization will own immediately after transactions
contemplated by the Stock Purchase Agreement, including those shares purchased
by your organization pursuant to the Stock Purchase Agreement and those shares
purchased by your organization through other transactions:
Shares Purchased Shares owned pursuant
Pursuant to Stock to transactions other
Purchase Agreement, than those contemplated Shares to be registered
including Warrant by Stock Purchase Total Shares of on the Registration
Shares Agreement Globecomm held Statement
----------------------- --------------------------- ---------------------- --------------------------
3. Has your organization had any position, office or other material
relationship within the past three years with Globecomm or its affiliates?
[ ] Yes [ ] No
If yes, please indicate the nature of any such relationships below:
XXXXXX NETWORK SYSTEMS, Date: May __, 2001
a Xxxxxx Electronics company
By:
-------------------------------
Name:
Title:
