Exhibit 10.27
INCENTIVE STOCK OPTION AGREEMENT
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THIS AGREEMENT, entered into on September 5, 2000 and effective as of
September 20, 2000 (the "Grant Date"), is made by and between SBA Communications
Corporation, a Florida corporation hereinafter referred to as "Company," and
Xxxxxx X. Xxxx, an employee of the Company or a Subsidiary of the Company,
hereinafter referred to as "Employee":
WHEREAS, the Company wishes to afford the Employee the opportunity to
purchase shares of its $0.01 par value Class A Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (the terms of which are
hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee, appointed to administer the Plan, has determined
that it would be to the advantage and best interest of the Company and its
shareholders to grant the Incentive Stock Option provided for herein to the
Employee as an inducement to enter into or remain in the service of the Company
or its Subsidiaries and as an incentive for increased efforts during such
service, and has advised the Company thereof and instructed the undersigned
officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS
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Whenever the following terms are used in this Agreement, they shall have
the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter, and the
singular the plural, where the context so indicates. All capitalized terms used
herein without definition shall have the meanings ascribed to such terms in the
Plan.
Section 1.1. - Board
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"Board" shall mean the Board of Directors of the Company.
Section 1.2. - Class A Common Stock
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"Class A Common Stock" shall mean the Class A common stock of the Company,
par value $0.01 per share.
Section 1.3. - Code
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"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.4. - Committee
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"Committee" shall mean the Compensation Committee of the Board, or another
committee of the Board, appointed as provided in Section 10.1 of the Plan.
Section 1.5. - Company
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"Company" shall mean SBA Communications Corporation, a Florida corporation.
Section 1.6. - Director
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"Director" shall mean a member of the Board.
Section 1.7. - Employment Agreement
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"Employment Agreement" shall mean that certain Employment Agreement between
Employee and the Company dated as of the date hereof.
Section 1.8 Exchange Act
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
Section 1.9 - Fair Market Value
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"Fair Market Value" of a share of Class A Common Stock as of a given date
shall be (a) the closing price of a share of Class A Common Stock on the
principal exchange on which shares of Class A Common Stock are then trading, if
any (or as reported on any composite index which includes such principal
exchange), on the trading day previous to such date, or if shares were not
traded on the trading day previous to such date, then on the next preceding date
on which a trade occurred, or (b) if Class A Common Stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, the mean
between the closing representative bid and asked prices for the Class A Common
Stock on the trading day previous to such date as reported by NASDAQ or such
successor quotation system; or (c) if Class A Common Stock is not publicly
traded on an exchange and not quoted on NASDAQ or a successor quotation system,
the Fair Market Value of a share of Class A Common Stock as established by the
Committee acting in good faith.
Section 1.10 - Option
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"Option" shall mean the incentive stock option to purchase Class A Common
Stock of the Company (which stock at the time of issuance is registered under
the Securities Act on Form S-8 or a successor form) granted under this
Agreement.
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Section 1.11 - Plan
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"Plan" shall mean The 1999 Equity Participation Plan of SBA Communications
Corporation.
Section 1.12 - Rule 16b-3
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"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as
such Rule may be amended from time to time.
Section 1.13 - Secretary
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"Secretary" shall mean the Secretary of the Company.
Section 1.14 - Securities Act
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"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.15 - Subsidiary
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"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one (1) of the other corporations in such chain.
Section 1.16 - Termination of Employment
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"Termination of Employment" shall mean the time when the employee-employer
relationship between the Employee and the Company or any Subsidiary is
terminated for any reason, with or without cause, including, but not by way of
limitation, a termination by resignation, discharge, death, disability or
retirement; but excluding (i) terminations where there is a simultaneous
reemployment or continuing employment of the Employee by the Company or any
Subsidiary, (ii) at the discretion of the Committee, terminations which result
in a temporary severance of the employee-employer relationship, and (iii) at the
discretion of the Committee, terminations which are followed by the simultaneous
establishment of a consulting relationship by the Company or a Subsidiary with
the former employee. The Committee, in its reasonable discretion, shall
determine the effect of all matters and questions relating to Termination of
Employment not otherwise controlled by the provisions of the Employment
Agreement, including, but not by way of limitation, all questions of whether a
particular leave of absence constitutes a Termination of Employment; provided,
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however, that, unless otherwise determined by the Committee in its reasonable
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discretion, a leave of absence, change in status from an employee to an
independent contractor or other change in the employee-employer relationship
shall constitute a Termination of Employment if, and to the extent that, such
leave of absence, change in status or other change interrupts employment for the
purposes of Section 422(a)(2) of the Code and the then applicable regulations
and revenue rulings under said Section. Notwithstanding any other provision of
this Agreement or of the Plan, the Company or any Subsidiary has the right to
terminate the Employee's employment only to the extent expressly provided in the
Employment Agreement while such Employment Agreement is in effect.
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ARTICLE II.
GRANT OF OPTION
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Section 2.1. - Grant of Option
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In consideration of the Employee's agreement to remain in the employ of the
Company or its Subsidiaries and for other good and valuable consideration, on
the date hereof the Company irrevocably grants to the Employee the option to
purchase any part or all of an aggregate of 45,000 shares of its $0.01 par value
Class A Common Stock upon the terms and conditions set forth in this Agreement,
which shares shall be registered under the Securities Act at the time of
issuance on Form S-8 or a successor form.
Section 2.2. - Purchase Price
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The purchase price of the shares of stock covered by the Option shall be
$39.00 per share without commission or other charge.
Section 2.3. - Adjustments in Option
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Notwithstanding any other provision of this Agreement, the Committee may
make adjustments with respect to the Option in accordance with the provisions of
Section 11.3 of the Plan; provided, however, that each such adjustment shall be
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made in such manner as not to constitute a "modification" within the meaning of
Section 424(h)(3) of the Code, unless the Optionee consents to an adjustment
which would constitute such a "modification."
ARTICLE III.
PERIOD OF EXERCISABILITY
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Section 3.1. - Commencement of Exercisability
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(a) Subject to subsection (b) and Sections 3.4 and 3.5, the Option
shall become exercisable in three (3) cumulative installments as follows:
(i) The first installment shall consist of one-third (1/3rd) of
the shares covered by the Option and shall become exercisable on the
first anniversary of the Grant Date.
(ii) The second installment shall consist of one-third (1/3rd) of
the shares covered by the Option and shall become exercisable on the
second anniversary of the Grant Date.
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(iii) The third installment shall consist of one-third (1/3rd) of
the shares covered by the Option and shall become exercisable on the
third anniversary of the Grant Date.
(b) Except as contemplated by Section 3.4, no portion of the Option
which is unexercisable at Termination of Employment shall thereafter become
exercisable.
Section 3.2. - Duration of Exercisability
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The installments provided for in Section 3.1 are cumulative. Each such
installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
Section 3.3. - Expiration of Option
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The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of five (5) years from the date the Option was
granted; or
(b) The expiration of three (3) months from the date of the Employee's
Termination of Employment other than by reason of death or disability; or
(c) The expiration of one (1) year from the date of the Employee's
Termination of Employment by reason of his disability (within the meaning of
Section 22(e)(3) of the Code); or
(d) The expiration of one (1) year from the date of the Employee's
death.
Section 3.4. - Acceleration of Exercisability
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In the event (an "Acceleration Event") of (i) a Termination of
Employment "Without Cause" as such term is defined in the Employment Agreement
(whether or not such Employment Agreement is then in effect), (ii) a Change in
Control as defined in the Employment Agreement (whether or not such Employment
Agreement is then in effect), (iii) a failure by the Company to renew the
Employment Agreement at the end of a Term, (iv) a breach of the Employment
Agreement by the Company and failure to cure within 15 days or (v) Employee not
receiving a bonus under Section 4(b) of the Employment Agreement in any calendar
year of the Term of the Employment Agreement in an amount (prorated for any
period less than a full calendar year) not less than 50% of his Base Salary (as
such term is defined in the Employment Agreement), this Option shall be
exercisable as to all the shares covered hereby immediately prior to the
effective date of such event, notwithstanding that this Option may not yet have
become fully exercisable under Section 3.1(a); provided, however, that this
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acceleration of exercisability shall not take place if this Option becomes
unexercisable under Section 3.3 prior to said effective date.
Section 3.5. - Special Tax Consequences
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The Employee acknowledges that, to the extent that the aggregate Fair
Market Value of stock with respect to which "incentive stock options" (within
the meaning of Section 422 of the Code, but without regard to Section 422(d) of
the Code), including the Option, are exercisable for the first time by the
Employee during any calendar year (under the Plan and all other incentive stock
option plans of the Company, any Subsidiary and any parent corporation thereof
(within the meaning of Section 422 of the Code)) exceeds $100,000, such options
shall be treated as nonqualified options to the extent required by Section 422
of the Code. The Employee further acknowledges that the rule set forth in the
preceding sentence shall be applied by taking options into account in the order
in which they were granted. For purposes of these rules, the Fair Market Value
of stock shall be determined as of the time the option with respect to such
stock is granted.
ARTICLE IV.
EXERCISE OF OPTION
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Section 4.1. - Person Eligible to Exercise
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During the lifetime of the Employee, only he may exercise the Option or any
portion thereof. After the death of the Employee, any exercisable portion of the
Option may, prior to the time when the Option becomes unexercisable under
Section 3.3, be exercised by his personal representative or by any person
empowered to do so under the deceased Employee's will or under the then
applicable laws of descent and distribution.
Section 4.2. - Partial Exercise
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Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for not less than
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one hundred (100) shares (or the minimum installment set forth in Section 3.1,
if a smaller number of shares) and shall be for whole shares only.
Section 4.3. - Manner of Exercise
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The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or his office of all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) A written notice complying with the applicable rules established
by the Committee stating that the Option, or a portion thereof, is exercised.
The notice shall be signed by the Employee or other person then entitled to
exercise the Option or such portion; and
(b) (i) Full cash payment to the Secretary of the Company for the
shares with respect to which such Option or portion is exercised; or
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(ii) (A) shares of the Company's Class A Common Stock owned by
the Employee, duly endorsed for transfer to the Company, with a Fair
Market Value on the date of delivery equal to the aggregate exercise
price of the Option or exercised portion thereof, or (B) shares of the
Company's Class A Common Stock issuable to the Employee upon exercise
of the Option, with a Fair Market Value on the date of exercise of the
Option or any portion thereof equal to the aggregate exercise price of
the Option or exercised portion thereof; or
(iii) With the consent of the Committee, a full recourse
promissory note bearing interest (at no less than such rate as shall
then preclude the imputation of interest under the Code or successor
provision) and payable upon such terms as may be prescribed by the
Committee. The Committee may also prescribe the form of such note and
the security to be given for such note. The Option may not be
exercised, however, by delivery of a promissory note or by a loan from
the Company when or where such loan or other extension of credit is
prohibited by law; or
(iv) With the consent of the Committee, property of any kind
which constitutes good and valuable consideration; or
(v) A notice that the Employee has placed a market sell order
with a broker with respect to shares of the Company's Class A Common
Stock then issuable upon exercise of the Option, and that the broker
has been directed to pay a sufficient portion of the net proceeds of
the sale to the Company in satisfaction of the Option exercise price;
or
(vi) With the consent of the Committee, any combination of the
consideration provided in the foregoing subparagraphs (i), (ii),
(iii), (iv) and (v); and
(c) A bona fide written representation and agreement, in a form
reasonably satisfactory to the Committee, signed by the Employee or other person
then entitled to exercise such Option or portion, stating that the shares of
stock are being acquired for his own account, for investment and without any
present intention of distributing or reselling said shares or any of them except
as may be permitted under the Securities Act and then applicable rules and
regulations thereunder, and that the Employee or other person then entitled to
exercise such Option or portion will indemnify the Company against and hold it
free and harmless from any loss, damage, expense or liability resulting to the
Company if any sale or distribution of the shares by such person is contrary to
the representation and agreement referred to above. The Committee may, in its
reasonable discretion, take whatever additional actions it deems appropriate to
insure the observance and performance of such representation and agreement and
to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the
foregoing, the Committee may require an opinion of counsel reasonably acceptable
to it to the effect that any subsequent transfer of shares acquired on an Option
exercise does not violate the Securities Act, and may issue stop-transfer orders
covering such shares. Share certificates evidencing stock issued on exercise of
this Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and
agreement referred to in the first sentence of this subsection (c) shall,
however, not be required if the shares to be issued pursuant to such
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exercise have been registered under the Securities Act, and such registration is
then effective in respect of such shares;
(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option; (i) shares of the Company's Class A Common Stock
owned by the Employee, duly endorsed for transfer, with a Fair Market Value on
the date of delivery equal to the sums required to be withheld, or (ii) shares
of the Company's Class A Common Stock issuable to the Employee upon exercise of
the Option with a Fair Market Value on the date of exercise of the Option or any
portion thereof equal to the sums required to be withheld, may be used to make
all or part of such payment; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Employee, appropriate proof
of the right of such person or persons to exercise the Option.
Section 4.4. - Conditions to Issuance of Stock Certificates
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The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The receipt by the Company of full payment for such shares,
including payment of all amounts which, under federal, state or local tax law,
the Company (or other employer corporation) is required to withhold upon
exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise
of the Option as the Committee may from time to time establish for reasons of
administrative convenience.
Section 4.5. - Rights as Shareholder
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The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V.
OTHER PROVISIONS
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Section 5.1. - Administration
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The Committee shall have the power to interpret the Plan and this Agreement
and to adopt such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Committee in good faith shall be final and binding upon the Employee, the
Company and all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Option. Any such interpretations and rules
with respect to incentive stock options shall be consistent with the provisions
of Section 422 of the Code. In its absolute discretion, the Board may at any
time and from time to time exercise any and all rights and duties of the
Committee under the Plan and this Agreement except with respect to matters which
under Rule 16b-3 or Section 162(m) of the Code, or any regulations or rules
issued thereunder, are required to be determined in the sole discretion of the
Committee.
Section 5.2. - Option Not Transferable
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Neither the Option nor any interest or right therein or part thereof shall
be sold, pledged, assigned, or transferred in any manner other than by will or
the laws of descent and distribution, unless and until such Option has been
exercised, or the shares underlying such Option have been issued, and all
restrictions applicable to such shares have lapsed. Neither the Option nor any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of the Employee or his successors in interest or shall
be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect, except to
the extent that such disposition is permitted by the preceding sentence.
Section 5.3. - Shares to Be Reserved; Registration
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The Company shall at all times during the term of the Option reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of this Agreement and use its reasonable best efforts to
maintain an effective registration statement under the Securities Act covering
the issuance of shares upon exercise of the Option.
Section 5.4. - Notices
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Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, and any notice to be
given to the Employee shall be addressed to him at the address given beneath his
signature hereto. By a notice given pursuant to this Section 5.4, either party
may hereafter designate a different address for notices to be given to him. Any
notice which is required to be given to the Employee shall, if the Employee is
then deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his status and address by
written notice under this Section 5.4. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service; provided, however,
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that any notice to be given by the Optionee relating to the exercise of the
Option or any portion thereof shall be deemed duly given upon receipt by the
Secretary or his office.
Section 5.5. - Titles
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Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
Section 5.6. - Notification of Disposition
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The Employee shall give prompt notice to the Company of any disposition or
other transfer of any shares of stock acquired under this Agreement if such
disposition or transfer is made (a) within two (2) years from the date of
granting the Option with respect to such shares or (b) within one (1) year after
the transfer of such shares to him. Such notice shall specify the date of such
disposition or other transfer and the amount realized, in cash, other property,
assumption of indebtedness or other consideration, by the Employee in such
disposition or other transfer.
Section 5.7. - Construction
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This Agreement shall be administered, interpreted and enforced under the
internal laws of the State of Florida without regard to conflicts of laws
thereof. To the extent of any conflicts between the provisions of this Agreement
and Employment Agreement, the provisions of the Employment Agreement shall
control.
Section 5.8. - Conformity to Securities Laws
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The Employee acknowledges that the Plan is intended to conform to the
extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including, without limitation, the applicable exemptive
conditions of Rule 16b-3. Notwithstanding anything herein to the contrary, the
Plan shall be administered, and the Option is granted and may be exercised, only
in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.
Section 5.9. - Amendments
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This Agreement and the Plan may be amended without the consent of the
Optionee provided that such amendment would not impair any rights of the
Optionee under this Agreement. No amendment of this Agreement shall, without the
consent of the Optionee (which consent may be withheld in Optionee's sole
discretion), impair any rights of the Optionee under this Agreement.
Section 5.10 - Enforcement Costs
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If any civil action or other legal proceeding arising out of or related to
this Agreement is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that civil
action or legal proceeding, in addition to any other relief to which such party
or parties may be entitled. Attorneys' fees shall include, without limitation,
paralegal fees, investigative fees, administrative costs, sales and use taxes
and all other charges billed by attorney to the prevailing party.
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