EXHIBIT 4.5
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 Reuters Investments (Bermuda) Ltd. (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, or any affiliate thereof, purchases or commits to
purchase shares of common stock or preferred stock 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
action 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 to any
difference in the aggregate number of shares of NetSat sold by the
Seller and such third party.
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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 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
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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) prepare and 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 the shares of Common Stock of the Purchaser
issued to Globix Corporation, a Delaware corporation
("Globix"), and Xxxxxx Xxxxx, in connection with the sale of
their shares of NetSat common stock and preferred stock, as
the case may be, 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(h) below;
(b) employ in good faith all reasonable efforts to cause the
Registration Statement to be declared effective within 90
days after the date hereof and to remain effective for the
period specified in Section 4.1(i);
(c) 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
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Statement, provided that if, (i) the Purchaser would be
required to disclose in the prospectus information not
otherwise then required by law to be publicly disclosed and
(ii) in the reasonable judgment of the Board of Directors
there is a reasonable likelihood that such disclosure would
materially and adversely affect any existing or prospective
material business situation, transaction or negotiation,
then the Purchaser may, on no more than one occasion per
year, by notice to the Seller, require the Seller to
discontinue disposition of the Purchase Shares and Warrant
Shares covered by such registration statement(s) or
prospectus(es) until it is advised in writing by the
Purchaser that use of the applicable prospectus may be
resumed, and the holders have received copies of any
additional or supplemented filings that are incorporated or
deemed to be incorporated by reference in such
prospectus(es) (which in no event shall result in a
discontinuance of more than thirty (30) days) (the "Blackout
Period"). During the Blackout Period, 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).
(d) 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;
(e) 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;
(f) 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
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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;
(g) 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;
(h) 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
(i) 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, Globix and Xxxxxx Xxxxx 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, Xxxxx and Globix shall not exceed
$50,000 in the aggregate. 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.
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4.4 Indemnification.
(a) To the extent permitted by law, the Purchaser will indemnify
and hold harmless the Seller, each of its directors, each of
its officers, each of its employees, each of its agents,
each of its representatives 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
Securities Act, the 1934 Act or state securities laws,
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, state
securities laws or any rule or regulation promulgated under
the Securities Act, the 1934 Act or state securities laws;
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 or
controlling person.
(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
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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.
(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, or if the
indemnifying party fails to promptly retain counsel. The
failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such
action, if materially 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
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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. Notwithstanding the foregoing, no person or entity
guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
(e) The obligations of the Purchaser and the Seller under this
Section 4.4 shall survive the completion of any offering of
Purchaser Shares or Warrant Shares in a registration
statement under this Section 4.4, and otherwise.
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(c) 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 Director Registration. Xxxxxx Xxxxxxxxx shall have resigned from
the Board of Directors of NetSat.
5.4 Acknowledgment. The Seller shall deliver to the Purchaser an
acknowledgment reasonably acceptable to the Purchaser that, by
virtue of the Seller's sale of the Shares contemplated hereunder,
the Seller has no rights or obligations under (a) the Amended and
Restated Investors' Rights Agreement, dated October 28, 1999, by
and among the Seller, NetSat, the Purchaser and certain other
parties thereto or (b) the Amended and Restated Stockholders
Rights Agreement, dated October 28, 1999, by and among the
Seller, NetSat, the Purchaser and certain other parties thereto.
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5.5 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 other than conflict of
laws principles thereof directing the application of any law
other than that of New York. Courts within the State of New York
will have jurisdiction over all disputes between the parties
hereto arising out of or relating to this agreement and the
agreements, instruments and documents contemplated hereby. The
parties hereby consent to and agree to submit to the jurisdiction
of such courts. Each of the parties hereto waives, and agrees not
to assert in any such dispute, to the fullest extent permitted by
applicable law, any claim that (i) such party is not personally
subject to the jurisdiction of such courts, (ii) such party and
such party's property is immune from any legal process issued by
such courts or (iii) any litigation commenced in such courts is
brought in an inconvenient forum.
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.
7.3 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given (i) upon personal
delivery to the party to be notified, (ii) when sent by facsimile
to the party to be notified if sent during the normal business
hours of such party, if not, then on the next business day, (iii)
five (5) days after deposit in the United States mail, by
registered or certified mail, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of
receipt. All notices and communications shall be properly
addressed to the party to be notified as set forth on the
signature page hereof or at such other address as such party may
designate by written notice to the other parties hereto.
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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 Registration Rights. Except for the rights set forth in the
registration rights agreements, dated May 30, 1996, December 31,
1996, and February 1997, and the stock purchase agreements dated
March 30, 2001 and April 11, 2001, there are no other rights to
have Purchaser capital stock registered under a registration
statement with the SEC.
7.7 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, Vice President and Chief Financial Officer
Address: 00 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
THE SELLER:
REUTERS INVESTMENTS (BERMUDA) LTD.
By:
-------------------------------------
Name:
Address: 0 Xxx xx Xxxxxxxxxx, 0000
Xxxxxx, Xxxxxxxxxxx
Attn:
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SCHEDULE I
SELLER
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NAME NUMBER OF PURCHASER WARRANTS ISSUED AT CASH PAID AT CLOSING
SHARES OF SHARES ISSUED CLOSING
NETSAT COMMON AT CLOSING
STOCK
----------------------------------------------------------------------------------------------------------
Reuters Investments 2,000,000 200,000 225,000 $500,000
(Bermuda) Ltd.
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Exhibit A
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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 EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND QUALIFICATION UNDER THE LAW RELATED THERETO, OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE ACT AND LAW, RESPECTIVELY, 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 225,000 Shares
of Common Stock
WARRANT FOR COMMON STOCK
This certifies that Reuters Investments (Bermuda) Ltd., whose address is
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx XX CX, Bermuda (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, TWO HUNDRED AND TWENTY FIVE THOUSAND (225,000) 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 be assignable in whole, but not
in part, and shall only be exercisable, by the Holder or its assignee, as the
case may be.
1. EXERCISE
1.1 Net Issue Exercise. Holder shall 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 located at 00 Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (by personal delivery or facsimile to the Chief
Financial Officer) 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
Where:
X = the number of shares of Common Stock to be issued to Holder;
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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 1.3 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.
1.2 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.
1.3 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 covenants and agrees that none of the shares of Common Stock which
may be issued upon exercise of this Warrant will, upon issuance, be in violation
of or subject to any preemptive rights of any person. 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.
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:
15
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 in one or more
related transactions, 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. Holder shall be provided with prior written notice of any such
adjustment.
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;
3.4.2 the effective date of a division or combination of shares;
16
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. TRANSFER; EXCHANGE
6.1 Transfer. This Warrant shall be transferable by the Holder in whole,
but not in part. 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 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.
17
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 reasonably 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
18
with a copy to: Xxxxxxx, Xxxxxxx & 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: Xxxxxx Xxxxxxxxx
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx, Esq.
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 fifteen (15) 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.
19
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
Vice President and Chief Financial Officer
20
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 1.1 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:
--------------------
21
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 Reuters Investments (Bermuda) Ltd. (the "Seller" or "Releasor")
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, underwriters, 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 has, 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).
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.
22
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:
RELEASEE:
GLOBECOMM SYSTEMS INC.
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
RELEASOR:
REUTERS INVESTMENTS (BERMUDA) LTD.
By:
----------------------------------
Name:
Title:
23
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 Reuters Investments (Bermuda)
Ltd., please provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state you or 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 you or your organization pursuant to the Stock Purchase Agreement and those
shares purchased by you or 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. Have you or 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:
-----------------------------------------------------------------
-----------------------------------------------------------------
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REUTERS INVESTMENTS (BERMUDA) LTD.
By:
--------------------------------
Name:
Title:
24
