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EXHIBIT 10.10
STOCK OPTION AGREEMENT
AGREEMENT, dated as of December 31, 1996, between GlobeComm, Inc. (the
"Company"), a Delaware corporation doing business at 00 Xxxxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx and Xxxxxx Xxxxxx (the "Grantee") residing at 000 Xxxxxxxxxxxxx
Xxxx, Xxxxxx, XX 00000. The Company and the Grantee are collectively referred to
as the "Parties."
WHEREAS, the Grantee is employed by the Company in the capacity as
Chairman and Chief Executive Officer, and in partial consideration for the
Grantee's services, the Company desires to award stock options to the Grantee in
accordance with the terms of this Agreement;
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 future dates listed on Schedule A, to the Grantee an irrevocable
option (the "Option") to purchase the number of shares of Class A Common Stock
(the "Shares") listed on the attached Schedule A at the purchase price listed on
Schedule A (the "Purchase Price"). These options are 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 Grantee wishes to exercise
the Option, in accordance with the restrictions specified below, the Grantee
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 right to exercise an Option is limited as hereinafter
provided:
(a) An Option may be exercised as hereinafter provided only to the
extent that the Option has become vested as provided herein. (b)
The Options shall vest upon the date of grant, as is listed on
Schedule A.
1.4. TERMINATION OF EMPLOYMENT. Upon the termination of the Grantee's
employment, the right to exercise an Option held by the Grantee shall be as
follows:
Grantee's rights hereunder are not contingent upon his or her
continued employment; provided, however, if the Grantee's employment with the
Company is terminated by reason of death, the Board or Committee, in its sole
discretion, may require that the estate of a deceased Grantee agree to be bound
by all of the terms and conditions of the Plan.
1.5. TRANSFERABILITY. No Option shall be transferable except by will or
the laws of
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descent and distribution. An Option shall be exercisable during the Grantee's
lifetime only by the Grantee.
1.6. DURATION OF OPTIONS. Options may be exercised, upon satisfaction
of the conditions specified in Section 1.3, for terms of up to but not exceeding
ten (10) years from the date of grant.
1.7. ADDITIONAL OPTIONS. In the event that the Company grants
additional options to purchase shares of Class A Common Stock to the Grantee,
unless agreed to the contrary between the Parties, the additional options will
be subject to the terms of this Agreement.
SECTION II. THE CLOSING
2.1. Closing Date. Any closing hereunder shall take place on the date
specified by the Grantee 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 Grantee a certificate or certificates, duly
endorsed, representing the Shares and the Grantee will purchase such Shares from
the Company at the price per Share equal to the Exercise Price. In the event
that any federal, state, or local income taxes, employment taxes, Federal
Insurance Contribution Act ("FICA") withholdings or other amounts are required
by applicable law or governmental regulation to be withheld from the grantee in
connection with the exercise, these amounts must be remitted to the Company in
addition to the Exercise Price. Any payment made by the Grantee to the Company
pursuant to this Agreement shall be made by certified or official bank check.
2.2. 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 GRANTEE
3.1. INVESTMENT REPRESENTATION. The Grantee represents and warrants to
the Company that the Grantee 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 Grantee represents and warrants to the
Company that the Grantee is an Accredited Investor as defined in Rule 501
promulgated under the Act. The Grantee understands that, if and when it
exercises the Option, the Grantee 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 Grantee represents and warrants to the Company
that the Grantee is
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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 Grantee 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 Grantee 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.
4.2. RIGHT TO PURCHASE. The Company or its designee shall have the
right, exercisable by written notice given to the Grantee 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 Grantee 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 Grantee 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 Grantee, the Company shall furnish to the
Grantee such information regarding the Company and its operation as shall be
reasonably necessary to enable the Grantee 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.
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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 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 Grantee 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 Grantee 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. Grantee, 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
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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. Grantee 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 Grantee 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 provisions of the Section
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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.
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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.
WHEREAS, the Parties have signed their names to this Agreement on the
date as above written:
GlobeComm, Inc
/s/ Xxxx Xxxxxx
---------------------------------
By: Xxxx Xxxxxx
Title: President
GRANTEE
/s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx
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NON-PLAN STOCK OPTION AGREEMENT
SCHEDULE A
IV
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XXXXXX XXXXXX
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$1.00 12/31/96 36,250
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