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Exhibit (d)(3)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of July 17, 2001 (the "Agreement"),
between GLOBALNET ACQUISITIONS INC., a Delaware corporation ("Purchaser"), and
GLOBALNET XXXXXXXXX.XXX, INC., a Delaware corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery of this Agreement,
Purchaser and the Company are entering into Amendment No.1 to an Agreement and
Plan of Merger, dated as of the date hereof and originally dated June 15, 2001
(as so amended the "Merger Agreement"), which provides, among other things, that
Purchaser, on the terms and subject to the conditions thereof, will acquire the
Company by means of a tender offer to be followed by a merger in which Purchaser
will be merged with and into the Company ("the Merger");
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Purchaser has required that the Company grant to Purchaser an option
to purchase a specified number of authorized and unissued shares of common
stock, par value $.001 per share (the "Common Stock"), of the Company, upon the
terms and subject to the conditions hereof; and
WHEREAS, in order to induce Purchaser to enter into the Merger Agreement
and in consideration therefor, among other things, the Company has agreed to
grant to Purchaser the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein and intending to be legally bound the parties
hereto agree as follows:
1. The Option; Exercise; Adjustments.
(a) Subject to the terms and conditions set forth herein, the Company
hereby grants to Purchaser an irrevocable option (the "Option") to
purchase such number of authorized and unissued shares of Common
Stock (the "Shares") which, together with the shares of Common Stock
beneficially owned by Purchaser and its controlled affiliates at the
time of exercise, would result in Purchaser beneficially owning,
immediately after such exercise, 90.1% of the outstanding shares of
Common Stock (calculated on a fully diluted basis without giving
effect to the issuance of any shares of Common Stock pursuant to any
exercise of the rights under the Plan (as defined in the Merger
Agreement)), at a purchase price of $.36 per Share (the "Purchase
Price"); provided that in no event shall Purchaser be permitted to
purchase, pursuant to this Option, Shares representing, after such
issuance, more than 10% of the shares of Common Stock outstanding
immediately after such purchase. The Option may be exercised by
Purchaser, in whole or in part, at any time or from time to time
after the consummation of the Offer (as defined in the Merger
Agreement) and prior to the termination of this Agreement. In the
event Purchaser wishes to exercise the Option, Purchaser shall
deliver a written notice to the Company (the "Stock Exercise Notice")
specifying that the closing of such purchase shall take place on the
Closing Date (as hereinafter defined).
(b) In the event of any change in the number of issued and outstanding
shares of Common Stock by reason of any stock dividend, stock split,
split-up, recapitalization, merger or other change in the corporate
or capital structure of the Company, the number of Shares subject to
this Option and the Purchase Price shall be appropriately adjusted to
restore Purchaser to its rights hereunder, including its right to
purchase a number of Shares that would result in Purchaser
beneficially owning 90.1% of the Total Voting Power at an aggregate
purchase price equal to the Purchase Price multiplied by the number
of Shares.
2. Conditions to Delivery of Shares. The Company's obligation to deliver
Shares upon exercise of the Option is subject only to the conditions that:
(a) No preliminary or permanent injunction or other order issued by any
court of competent jurisdiction prohibiting the delivery of the
Shares shall be in effect; and
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(b) The Purchaser (or its permitted assignees) shall have purchased
shares of Common Stock pursuant to the Offer.
3. The Closing.
(a) The closing for the purchase of the Shares shall take place at 9.00
a.m., local time, at the offices of Dechert, 2 Xxxxxxxx' Xxx, Xxxxxx
XX0X 0XX on the fifth business day after the latest of the
consummation of the Offer, the delivery of the Stock Exercise Notice
or the fulfillment of the conditions set forth in Section 2 hereof
(the "Closing Date"). On the Closing Date, the Company will deliver
to Purchaser a certificate or certificates representing the Shares in
the denominations designated by Purchaser in its Stock Exercise
Notice (which notice shall also specify the amount of shares of
Common Stock beneficially owned by Purchaser and its controlled
affiliates), and Purchaser will purchase such Shares from the Company
at a price per Share equal to the Purchase Price. Any payment made by
Purchaser to the Company pursuant to this Agreement shall be made by
(x) delivery to the Company of a certified, cashier's or bank check
payable to the order of the Company, or by wire transfer of federal
funds to an account designated by the Company, in an amount equal to
the number of Shares multiplied by $.001, and (y) delivery to the
Company of a promissory note for the balance of the Purchase Price,
bearing interest at a floating rate per annum equal to the prime rate
charge by Citibank N.A. from time to time, which promissory note
(plus accrued interest) shall be due and payable upon demand not less
than twenty days following issuance thereof.
(b) 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.
4. Representation and Warranties of the Company. The Company represents
and warrants to Purchaser that (a) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to enter into and perform
this Agreement; (b) the execution and delivery of this Agreement by the Company
and the consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company and
this Agreement has been duly executed and delivered by the Company; (c) the
Company has taken all necessary corporate action to authorize and reserve the
Shares for issuance upon exercise of the Option and the Shares, when issued and
delivered by the Company to Purchaser upon exercise of the Option and payment of
the Purchase Price as provided herein, will be duly authorized, validly issued,
fully paid and non-assessable and free of preemptive rights, and (d) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby do not require the consent, waiver,
approval, license or authorization of or any filing with any person or public
authority and will not violate, result in a breach of or the acceleration of any
obligation under, or constitute a default under, any provision of any charter or
by-law, indenture, mortgage, lien, lease, agreement, contract, instrument,
order, law, rule, regulation, judgment, ordinance, decree, or restriction by
which the Company or any of its subsidiaries or any of their respective
properties or assets is bound.
5. Representations and Warranties of Purchaser. Purchaser represents and
warrants to the Company that (a) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to enter into and perform
this Agreement; (b) the execution and delivery of this Agreement by Purchaser
and the consummation of it of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Purchaser and
this Agreement has been duly executed and delivered by Purchaser; and (c) this
Agreement constitutes a valid and binding obligation of Purchaser enforceable
against Purchaser in accordance with its terms.
6. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement.
7. Specific Performance. The Company acknowledges that Purchaser will
have no adequate remedy at law if the Company fails to perform any of its
obligations under this Agreement. In such event, the Company agrees that
Purchaser shall have the right, in addition to any other rights it may have, to
specific performance of this Agreement and that it will not take any action to
impede Purchaser's efforts to enforce such right of specific performance.
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8. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if given in the manner, and
addressed to the respective parties at the addresses, contained in the Merger
Agreement.
9. Entire Agreement; Amendments. This Agreement, together with the Merger
Agreement and the other documents referred to therein, contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings, oral
or written, with respect to such transactions. This Agreement may not be
changed, amended or modified orally, but may be changed only by an agreement in
writing signed by the party against whom any waiver, change, amendment,
modification or discharge may be sought.
10. Assignment. No party to this Agreement may assign any of its rights
or obligations under this Agreement without the prior written consent of the
other party hereto and any such attempted assignment shall be void and of no
effect. Notwithstanding the foregoing, Purchaser may assign its rights and
obligations hereunder to the holder of 100% of Purchaser's capital stock or to
any of its direct or indirect wholly owned subsidiaries, but no such transfer
shall relieve Purchaser of its obligations hereunder if such transferee does not
perform such obligations.
11. Headings. The section headings herein are for convenience only and
shall not affect the construction of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof).
14. Termination. The option granted pursuant to this Agreement shall
terminate on the earlier of the Effective Time (as defined in the Merger
Agreement) and the termination of the Merger Agreement in accordance with its
terms.
All representations and warranties contained in this Agreement shall
survive delivery of and payment for the Option Shares.
15. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, Purchaser and the Company have caused this Agreement to
be duly executed and delivered on the day and year first above written.
GLOBALNET ACQUISITIONS, INC.
By: /s/ Xxxx X. Xxxxxx
Title: Director
GLOBALNET XXXXXXXXX.XXX, INC.
By: /s/ W. Xxxxxx Xxxxxxx
Title: President & CEO
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