EXHIBIT 10.23
THIS STOCK OPTION AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF CAN BE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT OF 1933 AND APPLICABLE
STATE SECURITIES LAWS. THIS STOCK OPTION AND THE SHARES MAY NOT BE SOLD,
TRANSFERRED, OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNLESS, IN THE OPINION OF COUNSEL TO THE COMPANY, SUCH REGISTRATION IS NOT THEN
REQUIRED.
GALACTICOMM TECHNOLOGIES, INC.
STOCK OPTION AND AGREEMENT
THIS STOCK OPTION ("option[s]") for a total of 720,000 shares of common
stock, par value $.0001 per share (the "Common Stock"), of Galacticomm
Technologies, Inc., a Florida corporation (the "Company"), has been granted to
Xxxxx Xxxx ("Optionee"), one of the Company's key personnel, at the price and
subject to the terms and conditions contained herein.
1. EXERCISE PRICE. The exercise price (the "Exercise Price") of all
options granted hereunder is $0.92 for each share of Common Stock.
2. TERM AND VESTING. Subject to the terms and conditions contained herein,
this option shall be exercisable in any order for an amount of shares not to
exceed 720,000 shares of Common Stock, PROVIDED that the rights of Optionee
hereunder to exercise the options shall vest in accordance with the following
schedule:
(a) At any time on or after November 21, 1997, Optionee may exercise
this option to the extent of one-third of the options granted hereby;
(b) At any time on or after November 21, 1998, Optionee may exercise
this option to the extent of an additional one-third of the options granted
hereby; and
(c) At any time after November 21, 1999, Optionee may exercise this
option to the extent of the balance of the options granted hereby.
3. EXERCISE OF OPTION. This option shall be exercisable as follows:
(a) TIME AND MANNER OF EXERCISE OF OPTION.
(i) No portion of the option may be exercised more than five
years from the respective vesting dates set forth in Sections 2(a), (b) and (c)
hereof.
(ii) If Optionee's employment with the Company is terminated
with "cause" pursuant to the terms of Optionee's Employment Agreement, dated as
of November 21, 1996 (as amended), between Optionee and the Company (the
"Employment Agreement"), the Optionee shall forfeit the right to exercise all
non-vested options granted hereunder and payment for the exercise of all options
which were vested on the date of such termination of employment
shall be made to the Company in accordance with Section 3(b) hereof within the
earlier of ten (10) days of such termination of employment or the date by which
the vested options expire by the terms hereof.
(iii) If the Optionee dies, the options granted hereunder which
have vested as of the Optionee's death may be exercised within one (1) year
after the date of Optionee's death or prior to the date on which the vested
option expires by its terms, whichever is earlier, by the estate of the
Optionee, or by any person or persons whom Optionee shall have designated in
writing in documents filed with the Company or, if no such designation has been
made, by the person or persons to whom Optionee's rights hereunder shall have
passed by will or the laws of descent and distribution.
(iv) Upon the sale of all or substantially all of the assets of
the Company, the transfer of a controlling equity interest (as hereinafter
defined) in the Company, all outstanding options shall automatically vest and
shall be exercisable on the closing date of such transaction. Written notice of
not less than twenty (20) days shall be given by the Company to the Optionee of
the anticipated closing date of any such transaction. If such closing date
changes, the Company shall provide written notice of the new closing date as
soon as practicable to the Optionee. Any options not so exercised by the
Optionee shall be null and void if not exercised on such closing date. As used
herein, the term "controlling equity interest" shall mean the ability of any
person, entity or group to direct the management and policies of the Company.
(v) Each option granted hereunder shall be deemed exercised when
Optionee shall indicate his decision to do so in writing to the Company in
accordance with Section 3(b) hereof, and shall at the same time tender to the
Company payment in full in cash for the shares as to which the option is
exercised. The options granted hereunder may be exercised as to any lesser
number of shares than the full amount for which the options could be exercised.
Such a partial exercise of an option shall not affect the right to exercise the
option as to the remaining shares subject to the option. The right to exercise
this option shall be cumulative so that when the right to exercise an option has
vested, the shares eligible for purchase hereunder may be purchased at any time
thereafter until the expiration of the option pursuant to this Section 3(a).
(b) METHOD OF EXERCISE. This option shall be exercisable by a written
notice which shall:
(i) state the election to exercise the option, the number of
shares in respect of which it is being exercised, the person in whose name the
stock certificate(s) for such shares of Common Stock is to be registered, his or
her address and Social Security Number (or if more than one, the names,
addresses and Social Security numbers of such persons);
(ii) be signed by the person or persons entitled to exercise the
option and, if the option is being exercised by any person(s) other than the
Optionee, be accompanied by proof, satisfactory to counsel for the Company, of
the right of such person(s) to exercise the Option; and
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(iii) be delivered in person or by certified mail to the
Compensation Committee of the Company's Board of Directors (the "Committee").
(c) PAYMENT. Payment of the purchase price (the "Purchase Price") of
any shares with respect to which the option is being exercised shall be: (i) in
cash; (ii) by certified or bank check payable to the order of the Company; (iii)
by the delivery of unexercised options or shares of Common Stock having a fair
market value equal to the Purchase Price, or (iv) by any combination of the
foregoing having a fair market value equal to the Purchase Price. The Company
shall withhold from the shares of Common Stock to be issued upon the exercise of
this Option that number of shares of Common Stock having a fair market value
equal to the tax withholding amount due.
(d) RESTRICTIONS ON EXERCISE. Notwithstanding anything contained
herein to the contrary, this option may not be exercised if the issuance of the
shares of Common Stock upon such exercise would constitute a violation of any
applicable federal or state securities laws or other applicable laws or
regulations. As a condition to the exercise of this option, the Committee may
require the person exercising this option to make such representations and agree
to such covenants as may be required by any applicable law or regulation.
4. BENEFICIARY DESIGNATION. Optionee may designate to the Committee, on a
form provided by the Company for that purpose, a beneficiary or beneficiaries
who shall be entitled to the benefits hereunder. Such designation may be
canceled or changed by Optionee, but no cancellation or change will be
recognized by the Committee unless effected in writing on a form provided by the
Committee for that purpose and filed with the Company.
5. OPTIONEE'S OR SUCCESSOR'S RIGHTS AS STOCKHOLDERS. Neither the Optionee
nor his successor(s) in interest shall have any rights as a stockholder of the
Company with respect to any shares subject to the options granted to the
Optionee hereunder until the Optionee or his successor in interest becomes a
holder of record of such shares and receives a certificate or certificates
representing such shares from the Company or its duly authorized agent, which
certificate or certificates shall be mailed to the Optionee or his successor in
interest (at the last known address of the Optionee or his successor in
interest) not later than ten (10) business days after the exercise of the Option
in accordance with the terms contained herein.
6. REGULATORY APPROVAL AND COMPLIANCE. The Company shall not be required
to issue any certificate or certificates for shares of its Common Stock upon the
exercise of an option granted hereunder, or record as a holder of record of such
shares the name of the individual exercising any options granted hereby, without
obtaining, to the reasonable satisfaction of the Committee, the approval of all
regulatory bodies deemed necessary by the Committee, and without complying, to
the Committee's complete satisfaction, with all rules and regulations, under
federal, state or local law deemed applicable by the Committee.
7. NON-TRANSFERABILITY OF OPTION. Except as set forth herein, this option
may not be transferred in any manner otherwise than by will or the laws of
descent and distribution and may be exercised during the lifetime of the
Optionee only by him. The terms of this option shall be binding upon the
beneficiaries of Optionee.
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8. ADJUSTMENT OF EXERCISE PRICE IN THE EVENT OF STOCK DIVIDENDS, STOCK
SPLITS AND REVERSE STOCK SPLITS. If the Company issues Common Stock or
convertible securities by way of dividend or other general distribution to all
of the record holders of any stock of the Company or effects a stock split or
reverse stock split of the outstanding shares of Common Stock, the Exercise
Price shall be proportionately adjusted in the case of such issuance (on the day
following the date fixed for determining stockholders entitled to receive such
dividend or other such reverse stock split (on the date that such stock split or
reverse stock split shall become effective), by multiplying the Exercise Price
in effect immediately prior to the stock dividend, stock split or reverse stock
split by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately prior to such stock dividend, stock split or
reverse stock split, and the denominator of which is the number of shares of
Common Stock outstanding immediately after such stock dividend, stock split or
reverse stock split.
9. ADJUSTMENT OF NUMBER OF STOCK ISSUABLE UPON EXERCISE. Upon each
adjustment of the Exercise Price pursuant to Section 8 hereof, the Optionee
shall thereafter (until another such adjustment) be entitled to purchase, at the
Exercise Price in effect on the date purchase rights under this option are
exercised, the number of shares of Common Stock, calculated to the nearest whole
number of Common Stock, determined by (a) multiplying the number of shares of
Common Stock purchasable hereunder immediately prior to the adjustment of the
Exercise Price by the Exercise Price in effect immediately prior to such
adjustment, and (b) dividing the product so obtained by the Exercise Price in
effect on the date of such exercise.
10. INVESTMENT INTENT. The options being received will be purchased solely
for Optionee's own account for investment purposes only and not for the account
of any other person and not for distribution, assignment or resale to others. No
other person has a direct or indirect beneficial interest in the options or the
shares of Common Stock underlying the options (the "Underlying Shares").
Optionee has not subdivided the beneficial ownership of the options or the
Underlying Shares with any other person.
11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933.
(a) The Underlying Shares may not be offered or sold except in
compliance with the Securities Act of 1933 (the "Act"), or any similar federal
or state statute then in effect, and then only if such person to whom such offer
or sale is made agrees with the Company to comply with the provisions of this
Section 10 with respect to the restrictions for the resale or other disposition
of such securities contained herein.
(b) Prior to the disposition of any Underlying Shares under
circumstances that might require registration of the Underlying Shares under the
Act, or any similar federal or state statute then in effect, Optionee shall give
written notice to the Company, expressing his intention as to the disposition to
be made of such Underlying Shares. Promptly upon receiving such notice, the
Company shall present copies thereof to its counsel. If, in the opinion of such
counsel, the proposed disposition does not require registration under the Act,
or any similar federal or state statute then in effect with respect to the
Underlying Shares, the Company shall, as promptly as practicable, notify
Optionee of such opinion, whereupon Optionee shall be entitled
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to dispose of such Underlying Shares, all in accordance with the terms of the
notice delivered by Optionee to the Company.
(c) The Company may cause a legend in substantially the form that
follows to be set forth on the certificate representing the Underlying Shares,
unless counsel for the Company is of the opinion as to any such certificate that
such legend is unnecessary:
The securities represented by this certificate can only be
transferred in compliance with the Securities Act of 1933 and all
applicable state securities laws. This stock option and the shares
may not be sold, transferred, or assigned in the absence of an
effective registration statement unless, in the opinion of counsel to
the Company, such registration is not then required.
12. GOVERNING LAW. This Stock Option and Agreement shall be governed by
and construed in accordance with the laws of the State of Florida.
DATE OF GRANT: JUNE 30, 1997
GALACTICOMM TECHNOLOGIES, INC.
By: /s/ XXXXXXX XXXXXXX
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
ATTEST:
[ILLEGIBLE]
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Date
Galacticomm Technologies, Inc.
0000 X.X. 47 Avenue
Suite 101
Ft. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Compensation Committee
Re: Exercise of Nonqualified Stock Option
Dear Sir:
Please be advised that pursuant to the Stock Option and Agreement
("Agreement"), dated as of _______________, 19___ between Galacticomm
Technologies, Inc. (the "Company") and the undersigned ("Optionee"), Optionee
hereby exercises the stock option ("Option") in the amount of ________________
shares of common stock of the Company and herewith tenders the following
__________________________________________________________, having an aggregate
value of __________________________________________ ($ __________ ), in payment
for such shares of common stock. Capitalized terms not otherwise defined herein
are defined as set forth in the Agreement.
Optionee requests stock certificates for such shares issued in the name of
whose address is and whose social security number is .
Optionee hereby acknowledges, warrants and represents the following:
(1) Optionee's acknowledgements, representations, warranties and
agreements contained in the Agreement are true, complete and accurate as of the
date of this letter.
(2) The Option is presently exercisable and as such, has vested and has
not expired.
(3) Optionee is presently and has been in full compliance with all the
terms, conditions and provisions of the Agreement.
Sincerely,
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Optionee
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