1
EXHIBIT 99.9
STOCK OPTION AGREEMENT
AGREEMENT, dated as of January 31, 1999, between GlobeComm, Inc. (the
"Company"), a Delaware corporation doing business at 00 Xxxxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx and Xxxxx Xxxxxxxx (the "Consultant") residing at _______________
_________________________. The Company and the Consultant are collectively
referred to as the "Parties."
WHEREAS, the Consultant has performed consulting services for the
Company; and
WHEREAS, the Company desires to partly compensate the Consultant by
granting to the Consultant options to purchase the Company's common stock, and
the Consultant desires to be partly compensated for his services by accepting
the grant of options to purchase the Company's common stock;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth herein, the Parties hereto agree as follows:
SECTION I. OPTION TO PURCHASE SHARES
1.1. Option. The Company hereby grants, as of the date of this Agreement,
and as subsequently amended on the attached Schedule A, to the Consultant an
irrevocable option (the "Option") to purchase shares of Class A Common Stock
(the "Shares") at the purchase per share indicated on Schedule A (the "Purchase
Price"). This option is not intended to satisfy the requirements of Section 422
of the Internal Revenue Code of 1986, as amended nor to qualify as an incentive
stock option.
1.2. Exercise of Option. In the event the Consultant wishes to exercise
the Option, the Consultant shall send a written notice to the Company (the
"Stock Exercise Notice") specifying a date for the closing of such purchase.
1.3. Vesting. The Option is fully vested and may be exercised, in
accordance with the terms of this Agreement, upon its grant.
1.4. Transferability. No Option shall be transferable except by will or
the laws of descent and distribution. An Option shall be exercisable during the
Consultant's lifetime only by the Consultant.
1.5. Duration of Options. Options may be exercised for terms of
up to but not exceeding ten (10) years from the date of grant.
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EXHIBIT 99.9
SECTION II. THE CLOSING
2.1. Closing Date. Any closing hereunder shall take place on the date
specified by the Consultant in its Stock Exercise Notice pursuant to Section 1
at 10:00 A.M., at the offices of the Company, or at such other time and place as
the Parties hereto may agree (the "Closing Date"). On the Closing Date, the
Company will deliver to the Consultant a certificate or certificates, duly
endorsed, representing the Shares and the Consultant will purchase such Shares
from the Company at the price per Share equal to the Exercise Price.
2.2. Payment. Payment of the Purchase Price shall be made by
certified or official bank check.
2.3. Legends. The certificates representing the Shares may bear an
appropriate legend relating to the fact that such Shares have not been
registered under the Securities Act of 1933, as amended (the "Act").
SECTION III. REPRESENTATIONS AND WARRANTIES OF THE CONSULTANT
3.1. Investment Representation. The Consultant represents and warrants to
the Company that the Consultant is acquiring the Option and, if and when it
exercises the Option, will be acquiring the Shares issuable upon the exercise
thereof for its own account and not with a view to distribution or resale in any
manner which would be in violation of the Act.
3.2. Restricted Securities. The Consultant represents and warrants to the
Company that the Consultant is an Accredited Investor as defined in Rule 501
promulgated under the Act. The Consultant understands that, if and when it
exercises the Option, the Consultant will be acquiring restricted securities
under applicable federal securities laws, and may dispose of such Shares only
pursuant to an effective registration statement under the Act or an exemption
from registration if available. The Consultant represents and warrants to the
Company that the Consultant is acquiring the Option and, if and when it
exercises the Option, will be acquiring the Shares issuable upon the exercise
thereof for its own account and not with a view to distribution or resale in any
manner which would be in violation of the Act.
SECTION IV. RIGHT OF FIRST REFUSAL
If, at any time after the Closing Date, the Consultant proposes to sell
all or any part of the Shares in a transaction not required to be registered
under the Act, it shall give the Company the opportunity, in the following
manner, to purchase such Shares:
4.1. Notice. The Consultant shall give notice to the Company in writing of
its intent to sell Shares (a "Disposition Notice"), specifying the number of
Shares to be sold, the price and the material terms of any agreement relating
thereto. The Disposition Notice may be given at any time, including prior to the
giving of any Stock Exercise Notice.
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EXHIBIT 99.9
4.2. Right to Purchase. The Company or its designee shall have the right,
exercisable by written notice given to the Consultant within five (5) days after
receipt of a Disposition Notice, to purchase all, but not less than all, of the
Shares specified in the Disposition Notice at the price set forth in the
Disposition Notice.
4.3. Closing. If the Company exercises its right of first refusal
hereunder, the closing of the purchase of the Shares with respect to which such
right has been exercised shall take place within five (5) days after the notice
of such exercise; provided, however, that at any time prior to the closing of
the purchase of Shares hereunder, the Consultant may determine not to sell the
Shares and revoke the Disposition Notice and, by so doing, cancel the Company's
right of first refusal with respect thereto.
4.4. Right to Sell. If the Company does not exercise its right of first
refusal hereunder within the time specified for such exercise, the Consultant
shall be free for thirty (30) days following the expiration of such time for
exercise to sell or enter into an agreement to sell the Shares specified in the
Disposition Notice, at the price specified in the Disposition Notice or any
price in excess thereof and otherwise on substantially the same terms set forth
in the Disposition Notice; provided, that if such sale is not consummated within
such 30-day period, then the provisions of this Section 4 will again apply to
the sale of such Shares.
SECTION V. INFORMATION
Upon written request by the Consultant, the Company shall furnish to the
Consultant such information regarding the Company and its operation as shall be
reasonably necessary to enable the Consultant to make a decision as to whether
or not to exercise the Option; provided, however, that in no event shall the
Company be required to furnish information which constitutes trade secrets or
other proprietary information or the furnishing of which would be unduly
burdensome, financially or otherwise, to the Company.
SECTION VI. ADJUSTMENT FOR CHANGES IN THE STOCK
6.1. Stock Reclassification. In the event the shares of Stock, as
presently constituted, shall be changed into or exchanged for a different number
or kind of shares or other securities of the Company (whether by reason of
merger, consolidation, recapitalization, reclassification, split, reverse split,
combination of shares or otherwise), then there shall be substituted for or
added to each share of Stock theretofore or thereafter subject to an Option the
number and kind of shares of capital stock or other securities into, which each
outstanding share of Stock shall be changed, or for which each such share shall
be exchanged, or to which each such share shall be entitled, as the case may be.
The price and other terms of outstanding Options shall also be appropriately
amended to reflect the foregoing events. In the event there shall be any other
change in the number or kind of outstanding shares of the Stock, or of any
capital stock or other securities into which the Stock shall have been changed
or for which it shall have been exchanged, if the Board of Directors shall, in
its sole discretion, determine that the change
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EXHIBIT 99.9
equitably requires an adjustment in any Option theretofore granted, then
adjustments shall be made in accordance with its determination.
6.2. Fractional Shares. Fractional shares resulting from any adjustment in
Options pursuant to this Section 6 may be settled in cash or otherwise as the
Board of Directors shall determine.
6.3. Notice. Notice of any adjustment shall be given by the Company to the
Consultant in accordance with the requirements for providing notice to a Party
set forth in Section 7.7.
6.4. Sale of the Assets of the Company, etc. Notwithstanding Section 6.1,
the Board of Directors shall have the power, in the event of the disposition of
all or substantially all of the assets of the Company, or the dissolution of the
Company, or the merger or consolidation of the Company, or the making of a
tender offer to purchase all or a substantial portion of outstanding Stock of
the Company, to amend this Agreement (upon such conditions as it shall deem fit)
to (i) permit the exercise of the Options described herein prior to the
effective date of the transaction and to terminate all unexercised Options as of
that date, or (ii) require the forfeiture of all Options, provided the Company
pays to the Consultant the excess of the fair market value of the Stock subject
to the Option (as determined by the Board of Directors if the Company's common
stock is not then freely tradable) over the exercise price of the Option.
SECTION VII. PUBLIC OFFERING OF COMPANY'S COMMON STOCK
7.1. Lock-Up Agreement. Consultant, if requested by the Company and the
lead underwriter of any public offering of the common stock or other securities
of the Company (the "Lead Underwriter"), hereby irrevocably agrees not to sell,
contract to sell, grant any option to purchase, transfer the economic risk of
ownership in, make any short sale of, pledge or otherwise transfer or dispose of
any interest in any common stock or any securities convertible into or
exchangeable or exercisable for or any other rights to purchase or acquire
common stock (except common stock included in such public offering or acquired
on the public market after such offering) during the 180-day period following
the effective date of a registration statement of the Company filed under the
Securities Act, or such shorter period of time as the Lead Underwriter shall
specify. Consultant further agrees to sign such documents as may be requested by
the Lead Underwriter to effect the foregoing and agrees that the Company may
impose stop-transfer instructions with respect to such common stock subject
until the end of such period. The Company and Consultant acknowledge that each
Lead Underwriter of a public offering of the Company's stock, during the period
of such offering and for the 180-day period thereafter, is an intended
beneficiary of this Section 7.
7.2. No Amendment or Waiver. During the period from identification as a
Lead Underwriter in connection with any public offering of the Company's common
stock until the earlier of (i) the expiration of the lock-up period specified in
Section 7.1 in connection with such offering or (ii) the abandonment of such
offering by the Company and the Lead Underwriter, the
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EXHIBIT 99.9
provisions of the Section 7 may not be amended or waived except with the consent
of the Lead Underwriter.
SECTION VIII. MISCELLANEOUS
8.1. No Third Party Beneficiaries. This Agreement shall not confer any
rights of remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
8.2. Default. In the event a Party fails to comply with the terms of this
Agreement, any other Party to this Agreement shall be entitled to (a) injunctive
relief, as a matter of right, in any court of competent jurisdiction; (b) any
other relief or remedy that may be available pursuant to this Agreement or at
law or equity.
8.3. Waivers. The waiver by the undersigned of any of the provisions
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
8.4. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect the construction and interpretation
of this Agreement.
8.5. Severability. The invalidity of all of any part of any section of
this Agreement shall not render invalid the remainder of such section. If any
provision of this Agreement is so broad as to be unenforceable, such provisions
shall be interpreted to be only so broad as is enforceable.
8.6. Binding Effects. This Agreement shall not be assigned by any
Purchaser without the prior written consent of the Company. This Agreement shall
be binding upon and inure to the benefit of the Parties, their heirs, personal
representatives, successors, and permitted assignees.
8.7. Notices. Any notices provided pursuant to this Agreement shall be in
writing and shall be deemed given (i) if by hand, upon receipt thereof; (ii) if
mailed, three (3) days after deposit in the U.S. mails, postage prepaid,
certified mail return receipt requested, or (iii) if sent via overnight courier
upon receipt. All notices shall be addressed to the parties at the respective
addresses indicated herein. Either party may change its address by giving
written notice to the other in accordance with the terms of this paragraph.
8.8. Entire Agreement. This writing contains the entire agreement of the
Parties. The Parties are not bound by any oral statements that are made outside
of this Agreement.
8.9. Governing Law. The interpretation, performance and enforcement of
this Agreement shall be governed of the laws of the State of Delaware.
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EXHIBIT 99.9
WHEREAS, the Parties have signed their names to this Agreement on the date
as above written:
GLOBECOMM, INC.
/s/ Xxxxxx XxXxxxxxx
-------------------------------------
By: Xxxxxx XxXxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CONSULTANT
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
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EXHIBIT 99.9
STOCK OPTION AGREEMENT
SCHEDULE A
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XXXXX XXXXXXXX
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EXERCISE PRICE GRANT DATE OPTIONS GRANTED
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$5.00 1/31/99 40
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$5.00 2/28/99 3,380
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$5.00 3/31/99 1,650
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