<PAGE>
As filed with the Securities and Exchange Commission on January 31, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
GLOBECOMM SYSTEMS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-3225567
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
45 OSER AVENUE, HAUPPAUGE, NEW YORK 11788
(Address of principal executive offices) (Zip Code)
GLOBECOMM SYSTEMS INC.
1997 STOCK INCENTIVE PLAN AND
CERTAIN WARRANTS GRANTED PURSUANT TO WRITTEN COMPENSATION AGREEMENTS
(Full title of the Plans)
DAVID E. HERSHBERG
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GLOBECOMM SYSTEMS INC.
45 OSER AVENUE, HAUPPAUGE, NEW YORK 11788
(Name and address of agent for service)
(516) 231-9800
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
- --------------------------------------------------------------------------------
1997 Stock Incentive
Plan Common Stock,
$0.001 par value 95,623 shares $26.75(2) $2,557,915.25(2) $675.29
- --------------------------------------------------------------------------------
Warrants Pursuant to
Written Compensation
Agreements Common Stock,
$0.001 par value 57,325 shares $8.07(3) $462,612.75(3) $122.13
- --------------------------------------------------------------------------------
Aggregate
Registration Fee: $797.42
- --------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Globecomm Systems Inc. 1997 Stock
Incentive Plan and/or the Warrants Pursuant to Written Compensation
Agreements, by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of consideration
which results in an increase in the number of the outstanding shares of
Common Stock of Globecomm Systems Inc.
<PAGE>
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of the Common Stock of Globecomm Systems
Inc. on January 28, 2000 as reported on the Nasdaq National Market.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price, as adjusted for stock splits, of the outstanding warrants.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Globecomm Systems Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission ("SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999, filed with the SEC on September 28, 1999; and
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ended September 30, 1999 filed with the SEC on November 15, 1999;
and
(c) The Registrant's Registration Statement No. 000-22839 on Form
8-A12G filed with the SEC on July 15, 1997, pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "1934 Act"),
which describes the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock; and
(d) The Registrant's Registration Statement No. 000-22839 on Form
8-A12G filed with the SEC on December 4, 1998, pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "1934 Act"),
which describes the terms, rights and provisions applicable to the
Registrant's Preferred Stock Purchase Rights.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation provides that, except to
the extent prohibited by the Delaware General Corporation Law (the "Delaware
Law"), its directors shall not be personally liable to the Registrant or its
stockholders for monetary damages for any breach of fiduciary duty as directors
of the Registrant. Under Delaware law, the directors have a fiduciary duty to
the Registrant which is not eliminated by this provision of the Certificate of
Incorporation and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non monetary relief will remain available. In
addition, each director will continue to be subject to liability under Delaware
law for breach of the director's duty of loyalty to the company, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or
II-1
<PAGE>
approval of stock repurchases or redemptions that are prohibited by Delaware
law. This provision also does not affect the directors' responsibilities under
any other laws, such as the Federal securities laws or State or Federal
environmental laws. The Registrant has obtained liability insurance for its
officers and directors. Section 145 of the Delaware Law empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of their capacity or status as directors and officers,
provided that this provision shall not eliminate or limit the liability of a
director: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
arising under Section 174 of the Delaware Law, or (iv) for any transaction from
which the director derived an improper personal benefit. The Delaware Law
provides further that the indemnification permitted thereunder shall not be
deemed exclusive of any other rights to which the directors and officers may be
entitled under the corporation's bylaws, any agreement, vote of stockholders or
otherwise. The Registrant's Certificate of Incorporation eliminates the personal
liability of directors to the fullest extent permitted by Section 102(b)(7) of
the Delaware Law and provides that to the fullest extent permitted by law, the
Corporation shall fully indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate of Incorporation. The Registrant is
not aware of any threatened litigation or proceeding that may result in a claim
for such indemnification.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to the Registrant's Registration Statements No.
000-22839 on Form 8-A12G which are incorporated herein by
reference pursuant to Item 3(c) and S(d) to this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1997 Stock Incentive Plan.
99.2* Notice of Grant.
99.3* Stock Option Agreement.
99.4* Addendum to Stock Option Agreement (limited Stock
Appreciation Right).
99.5* Stock Issuance Agreement.
99.6* Notice of Grant of Automatic Stock Option.
99.7* Automatic Stock Option Agreement.
99.8 Common Stock Purchase Warrant-Stephen Judlowe.
99.9 Common Stock Purchase Warrant-John Balan.
99.10 Common Stock Purchase Warrant-Robert Schaefer.
99.11 Common Stock Purchase Warrant-Daphne Kamely.
99.12 Written Compensation Agreement-Stephen Judlowe.
99.13 Written Compensation Agreement-John Balan.
99.14 Written Compensation Agreement-Robert Schaefer.
99.15 Written Compensation Agreement-Daphne Kamely.
II-2
<PAGE>
* Exhibits 99.2 through 99.7 are incorporated by reference to Exhibits 99.2
through 99.7, respectively, to Registrant's Registration Statement No. 333-33137
on Form S-8, filed with the Commission on August 7, 1997.
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the Registrant's 1997
Stock Incentive Plan or the warrants granted pursuant to written compensation
agreements.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the 1933 Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8, and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in City of Hauppauge, State of New York, on this 31 day of
January, 2000.
GLOBECOMM SYSTEMS INC.
By: /s/ Kenneth A. Miller
-------------------------------------
Kenneth A. Miller
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Globecomm Systems Inc.,
a Delaware corporation, do hereby constitute and appoint David E. Hershberg,
Chief Executive Officer, Kenneth A. Miller, President and Andrew C. Melfi, Chief
Financial Officer, and each of them individually, with full powers of
substitution and resubstitution, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, determine may be necessary
or advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules or regulations or requirements
of the Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that said attorneys and agents, shall
do or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ David E. Hershberg Chairman, Chief Executive January 31, 2000
- -------------------------- Officer and Director (Principal
David E. Hershberg Executive Officer)
/s/ Kenneth A. Miller President and Director January 31, 2000
- --------------------------
Kenneth A. Miller
/s/ Andrew C. Melfi Vice President and Chief January 31, 2000
- -------------------------- Financial Officer (Principal
Andrew C. Melfi Financial and Accounting
Officer)
II-4
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ Stephen C. Yablonski Vice President and Director January 31, 2000
- --------------------------
Stephen C. Yablonski
/s/ Donald G. Woodring Vice President and Director January 31, 2000
- --------------------------
Donald G. Woodring
/s/ Herman Fialkov Director January 31, 2000
- --------------------------
Herman Fialkov
/s/ C. J. Waylan Director January 31, 2000
- --------------------------
C. J. Waylan
/s/ A. Robert Towbin Director January 31, 2000
- --------------------------
A. Robert Towbin
Director
- --------------------------
Benjamin Duhov
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
GLOBECOMM SYSTEMS INC.
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to the Registrant's Registration Statements No.
000-22839 on Form 8-A12G which are incorporated herein by
reference pursuant to Item 3(c) and S(d) to this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1997 Stock Incentive Plan.
99.2* Notice of Grant.
99.3* Stock Option Agreement.
99.4* Addendum to Stock Option Agreement (limited Stock
Appreciation Right).
99.5* Stock Issuance Agreement.
99.6* Notice of Grant of Automatic Stock Option.
99.7* Automatic Stock Option Agreement.
99.8 Common Stock Purchase Warrant-Stephen Judlowe.
99.9 Common Stock Purchase Warrant-John Balan.
99.10 Common Stock Purchase Warrant-Robert Schaefer.
99.11 Common Stock Purchase Warrant-Daphne Kamely.
99.12 Written Compensation Agreement-Stephen Judlowe.
99.13 Written Compensation Agreement-John Balan.
99.14 Written Compensation Agreement-Robert Schaefer.
99.15 Written Compensation Agreement-Daphne Kamely.
* Exhibits 99.2 through 99.7 are incorporated by reference to Exhibits 99.2
through 99.7, respectively, to Registrant's Registration Statement No. 333-33137
on Form S-8, filed with the Commission on August 7, 1997.
<PAGE>
EXHIBIT 5
Opinion and consent of Brobeck, Phleger & Harrison LLP
January 31, 2000
Globecomm Systems Inc.
45 Oser Avenue
Hauppauge, New York 11788
Re: Globecomm Systems Inc.. (the "Company") Registration Statement for
Offering of an Aggregate of 152,948 Shares of Common Stock
------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Globecomm Systems Inc., a Delaware
corporation (the "Company") in connection with the registration statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, of 152,948 shares of the Company's common stock (the "Shares") for
issuance under the Company's 1997 Stock Incentive Plan (the "Plan") and under
the warrants granted to certain individuals pursuant to written compensation
agreements (the "Agreements").
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the increase to the share
reserve of the Plan and the grant of warrants pursuant to the Agreements. Based
on such review, we are of the opinion that, if, as and when the Shares are
issued and sold (and the consideration therefor received) pursuant to the duly
authorized direct stock issuances in accordance with the Plan, the Agreements
and in accordance with the Registration Statement, such Shares will be duly
authorized, legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Plan or the Shares issuable under such Plan.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Globecomm Systems Inc. 1997 Stock Incentive Plan and
certain warrants granted pursuant to written compensation agreements of our
report dated August 24, 1999 (except for the last paragraph of Note 16.
Subsequent Events, as to which the date is September 14, 1999) with respect to
the consolidated financial statements and schedule of Globecomm Systems Inc.
included in its Annual Report (Form 10-K) for the year ended June 30, 1999,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Melville, New York
January 31, 2000
<PAGE>
EXHIBIT 99.1
GLOBECOMM SYSTEMS INC.
1997 STOCK INCENTIVE PLAN
GENERAL PROVISIONS
PURPOSE OF THE PLAN
This 1997 Stock Incentive Plan is intended to promote the interests of
Globecomm Systems Inc., a Delaware corporation, by providing eligible persons
with the opportunity to acquire a proprietary interest, or otherwise increase
their proprietary interest, in the Corporation as an incentive for them to
remain in the service of the Corporation.
Capitalized terms shall have the meanings assigned to such terms in the
attached Appendix.
STRUCTURE OF THE PLAN
The Plan shall be divided into five separate equity programs:
the Discretionary Option Grant Program under which eligible persons may, at the
discretion of the Plan Administrator, be granted options to purchase shares of
Common Stock,
the Salary Investment Option Grant Program under which eligible employees may
elect to have a portion of their base salary invested each year in special
option grants,
the Stock Issuance Program under which eligible persons may, at the discretion
of the Plan Administrator, be issued shares of Common Stock directly, either
through the immediate purchase of such shares or as a bonus for services
rendered the Corporation (or any Parent or Subsidiary),
the Automatic Option Grant Program under which eligible non-employee Board
members shall automatically receive option grants at periodic intervals to
purchase shares of Common Stock, and
the Director Fee Option Grant Program under which non-employee Board members may
elect to have all or any portion of their annual retainer fee otherwise payable
in cash applied to a special option grant. The provisions of Articles One and
Seven shall apply to all equity programs under the Plan and shall govern the
interests of all persons under the Plan.
ADMINISTRATION OF THE PLAN
Prior to the Section 12 Registration Date, the Discretionary Option Grant and
Stock Issuance Programs shall be administered by the Board. Beginning with the
Section 12 Registration Date, the Primary Committee shall have sole and
exclusive authority to administer the Discretionary Option Grant and Stock
Issuance Programs with respect to Section 16 Insiders and shall have sole and
exclusive authority to administer the Salary Investment Option Grant Program
with respect to all eligible individuals.
Administration of the Discretionary Option Grant and Stock Issuance Programs
with respect to all other persons eligible to participate in those programs may,
at the Board's discretion, be vested in the Primary Committee or a Secondary
Committee, or the Board may retain the power to administer those programs with
respect to all such persons. The members of the Secondary Committee may be Board
members who are Employees eligible to receive discretionary option grants or
direct stock issuances under the Plan or any other stock option, stock
appreciation, stock bonus or other stock plan of the Corporation (or any Parent
or Subsidiary).
<PAGE>
Members of the Primary Committee or any Secondary Committee shall serve for such
period of time as the Board may determine and may be removed by the Board at any
time. The Board may also at any time terminate the functions of any Secondary
Committee and reassume all powers and authority previously delegated to such
committee.
Each Plan Administrator shall, within the scope of its administrative functions
under the Plan, have full power and authority (subject to the provisions of the
Plan) to establish such rules and regulations as it may deem appropriate for
proper administration of the Discretionary Option Grant, Salary Investment
Option Grant and Stock Issuance Programs and to make such determinations under,
and issue such interpretations of, the provisions of such programs and any
outstanding options or stock issuances thereunder as it may deem necessary or
advisable. Decisions of the Plan Administrator within the scope of its
administrative functions under the Plan shall be final and binding on all
parties who have an interest in the Discretionary Option Grant, Salary
Investment Option Grant and Stock Issuance Programs under its jurisdiction or
any option or stock issuance thereunder.
Service on the Primary Committee or the Secondary Committee shall constitute
service as a Board member, and members of each such committee shall accordingly
be entitled to full indemnification and reimbursement as Board members for their
service on such committee. No member of the Primary Committee or the Secondary
Committee shall be liable for any act or omission made in good faith with
respect to the Plan or any option grants or stock issuances under the Plan.
Administration of the Automatic Option Grant and Director Fee Option Grant
Programs shall be self-executing in accordance with the terms of those programs,
and no Plan Administrator shall exercise any discretionary functions with
respect to any option grants or stock issuances made under those programs.
ELIGIBILITY
The persons eligible to participate in the Discretionary Option Grant and Stock
Issuance Programs are as follows:
Employees,
non-employee members of the Board or the board of directors of any Parent or
Subsidiary, and
consultants and other independent advisors who provide services to the
Corporation (or any Parent or Subsidiary).
Only Employees who are Section 16 Insiders or other highly compensated
individuals shall be eligible to participate in the Salary Investment Option
Grant Program.
Each Plan Administrator shall, within the scope of its administrative
jurisdiction under the Plan, have full authority to determine, (i) with respect
to the option grants under the Discretionary Option Grant Program, which
eligible persons are to receive option grants, the time or times when such
option grants are to be made, the number of shares to be covered by each such
grant, the status of the granted option as either an Incentive Option or a
Non-Statutory Option, the time or times when each option is to become
exercisable, the vesting schedule (if any) applicable to the option shares and
the maximum term for which the option is to remain outstanding and (ii) with
respect to stock issuances under the Stock Issuance Program, which eligible
persons are to receive stock issuances, the time or times when such issuances
are to be made, the number of shares to be issued to each Participant, the
vesting schedule (if any) applicable to the issued shares and the consideration
for such shares.
The Plan Administrator shall have the absolute discretion either to grant
options in accordance with the Discretionary Option Grant Program or to effect
stock issuances in accordance with the Stock Issuance Program.
The individuals who shall be eligible to participate in the Automatic Option
Grant Program shall be limited to those individuals who first become
non-employee Board members on or after the Underwriting Date, whether through
appointment by the Board or election by the Corporation's stockholders. A
non-employee Board member who has previously been in the employ of the
Corporation (or any Parent or Subsidiary)or who serves as a member of the Board
pursuant to contractual rights granted to certain groups of stockholders in
connection with their purchase of stock in the Corporation shall not be eligible
to receive an option grant under the Automatic Option Grant Program.
2
<PAGE>
All non-employee Board members shall be eligible to participate in the Director
Fee Option Grant Program.
STOCK SUBJECT TO THE PLAN
The stock issuable under the Plan shall be shares of authorized but unissued or
reacquired Common Stock, including shares repurchased by the Corporation on the
open market. The maximum number of shares of Common Stock initially reserved for
issuance over the term of the Plan shall not exceed 2,556,958* shares. Such
authorized share reserve is comprised of (i) the number of shares which remain
available for issuance, as of the Plan Effective Date, under the Predecessor
Plan as last approved by the Corporation's stockholders, including the shares
subject to the outstanding options to be incorporated into the Plan and the
additional shares which would otherwise be available for future grant, plus (ii)
an additional increase of 285,000* shares authorized by the Board and
subsequently approved by the stockholders plus (iii) an additional increase of
90,818 shares effected on January 2, 1998 pursuant to Section V.B. below, plus
(iv) an additional increase of 90,517 effected on January 4, 1999 pursuant to
Section V.B. below (v) plus an additional increase of 95,623 shares effected on
January 3, 2000 pursuant to Section V. B. below.
The number of shares of Common Stock available for issuance under the Plan shall
automatically increase on the first trading day of each calendar year during the
term of the Plan, beginning with the 1998 calendar year, by an amount equal to
one percent (1%) of the shares of Common Stock outstanding on the last trading
day of the immediately preceding calendar year. No Incentive Options may be
granted on the basis of the additional shares of Common Stock resulting from
such annual increases.
No one person participating in the Plan may receive options, separately
exercisable stock appreciation rights and direct stock issuances for more than
1,425,000* shares of Common Stock in the aggregate per calendar year, beginning
with the 1998 calendar year.
Shares of Common Stock subject to outstanding options (including options
incorporated into this Plan from the Predecessor Plan) shall be available for
subsequent issuance under the Plan to the extent those options expire or
terminate for any reason prior to exercise in full. Unvested shares issued under
the Plan and subsequently cancelled or repurchased by the Corporation, at the
original issue price paid per share, pursuant to the Corporation's repurchase
rights under the Plan shall be added back to the number of shares of Common
Stock reserved for issuance under the Plan and shall accordingly be available
for reissuance through one or more subsequent option grants or direct stock
issuances under the Plan. However, should the exercise price of an option under
the Plan be paid with shares of Common Stock or should shares of Common Stock
otherwise issuable under the Plan be withheld by the Corporation in satisfaction
of the withholding taxes incurred in connection with the exercise of an option
or the vesting of a stock issuance under the Plan, then the number of shares of
Common Stock available for issuance under the Plan shall be reduced by the gross
number of shares for which the option is exercised or which vest under the stock
issuance, and not by the net number of shares of Common Stock issued to the
holder of such option or stock issuance.
If any change is made to the Common Stock by reason of any stock split, stock
dividend, recapitalization, combination of shares, exchange of shares or other
change affecting the outstanding Common Stock as a class without the
Corporation's receipt of consideration, appropriate adjustments shall be made to
(i) the maximum number and/or class of securities issuable under the Plan, (ii)
the number and/or class of securities for which any one person may be granted
stock options, separately exercisable stock appreciation rights and direct stock
issuances under this Plan per calendar year, (iii) the number and/or class of
securities for which grants are subsequently to be made under the Automatic
Option Grant Program to new non-employee Board members, (iv) the number and/or
class of securities and the exercise price per share in effect under each
outstanding option under the Plan and (v) the number and/or class of securities
and price per share in effect under each outstanding option incorporated into
this Plan from the Predecessor Plans. Such adjustments to the outstanding
options are to be effected in a manner which shall preclude the enlargement or
dilution of rights and benefits under such options. The adjustments determined
by the Plan Administrator shall be final, binding and conclusive.
- -------------------
All figures have been adjusted to reflect the 2.85-for-1 stock split
effected prior to the closing of the initial public offering of the Common
Stock.*
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DISCRETIONARY OPTION GRANT PROGRAM
OPTION TERMS
Each option shall be evidenced by one or more documents in the form
approved by the Plan Administrator; provided, however, that each such document
shall comply with the terms specified below. Each document evidencing an
Incentive Option shall, in addition, be subject to the provisions of the Plan
applicable to such options.
EXERCISE PRICE.
The exercise price per share shall be fixed by the Plan Administrator but shall
not be less than eighty-five percent (85%) of the Fair Market Value per share of
Common Stock on the option grant date.
The exercise price shall become immediately due upon exercise of the option and
shall, subject to the provisions of Section I of Article Six and the documents
evidencing the option, be payable in one or more of the forms specified below:
cash or check made payable to the Corporation,
shares of Common Stock held for the requisite period necessary to avoid a charge
to the Corporation's earnings for financial reporting purposes and valued at
Fair Market Value on the Exercise Date, or
to the extent the option is exercised for vested shares, through a special sale
and remittance procedure pursuant to which the Optionee shall concurrently
provide irrevocable written instructions to (a) a Corporation-designated
brokerage firm to effect the immediate sale of the purchased shares and remit to
the Corporation, out of the sale proceeds available on the settlement date,
sufficient funds to cover the aggregate exercise price payable for the purchased
shares plus all applicable Federal, state and local income and employment taxes
required to be withheld by the Corporation by reason of such exercise and (b)
the Corporation to deliver the certificates for the purchased shares directly to
such brokerage firm in order to complete the sale.
Except to the extent such sale and remittance procedure is utilized,
payment of the exercise price for the purchased shares must be made on the
Exercise Date.
EXERCISE AND TERM OF OPTIONS. Each option shall be exercisable at such time or
times, during such period and for such number of shares as shall be determined
by the Plan Administrator and set forth in the documents evidencing the option.
However, no option shall have a term in excess of ten (10) years measured from
the option grant date.
EFFECT OF TERMINATION OF SERVICE.
The following provisions shall govern the exercise of any options held by the
Optionee at the time of cessation of Service or death:
Any option outstanding at the time of the Optionee's cessation of Service for
any reason shall remain exercisable for such period of time thereafter as shall
be determined by the Plan Administrator and set forth in the documents
evidencing the option, but no such option shall be exercisable after the
expiration of the option term.
Any option exercisable in whole or in part by the Optionee at the time of death
may be subsequently exercised by the personal representative of the Optionee's
estate or by the person or persons to whom the option is transferred pursuant to
the Optionee's will or in accordance with the laws of descent and distribution.
Should the Optionee's Service be terminated for Misconduct, then all outstanding
options held by the Optionee shall terminate immediately and cease to be
outstanding.
During the applicable post-Service exercise period, the option may not be
exercised in the aggregate for more than the number of vested shares for which
the option is exercisable on the date of the Optionee's cessation of Service.
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Upon the expiration of the applicable exercise period or (if earlier) upon the
expiration of the option term, the option shall terminate and cease to be
outstanding for any vested shares for which the option has not been exercised.
However, the option shall, immediately upon the Optionee's cessation of Service,
terminate and cease to be outstanding to the extent the option is not otherwise
at that time exercisable for vested shares.
The Plan Administrator shall have complete discretion, exercisable either at the
time an option is granted or at any time while the option remains outstanding,
to:
extend the period of time for which the option is to remain exercisable
following the Optionee's cessation of Service from the limited exercise period
otherwise in effect for that option to such greater period of time as the Plan
Administrator shall deem appropriate, but in no event beyond the expiration of
the option term, and/or
permit the option to be exercised, during the applicable post-Service exercise
period, not only with respect to the number of vested shares of Common Stock for
which such option is exercisable at the time of the Optionee's cessation of
Service but also with respect to one or more additional installments in which
the Optionee would have vested had the Optionee continued in Service.
STOCKHOLDER RIGHTS. The holder of an option shall have no stockholder rights
with respect to the shares subject to the option until such person shall have
exercised the option, paid the exercise price and become a holder of record of
the purchased shares.
REPURCHASE RIGHTS. The Plan Administrator shall have the discretion to grant
options which are exercisable for unvested shares of Common Stock. Should the
Optionee cease Service while holding such unvested shares, the Corporation shall
have the right to repurchase, at the exercise price paid per share, any or all
of those unvested shares. The terms upon which such repurchase right shall be
exercisable (including the period and procedure for exercise and the appropriate
vesting schedule for the purchased shares) shall be established by the Plan
Administrator and set forth in the document evidencing such repurchase right.
LIMITED TRANSFERABILITY OF OPTIONS. During the lifetime of the Optionee,
Incentive Options shall be exercisable only by the Optionee and shall not be
assignable or transferable other than by will or by the laws of descent and
distribution following the Optionee's death. However, a Non-Statutory Option
may, in connection with the Optionee's estate plan, be assigned in whole or in
part during the Optionee's lifetime to one or more members of the Optionee's
immediate family or to a trust established exclusively for one or more such
family members. The assigned portion may only be exercised by the person or
persons who acquire a proprietary interest in the option pursuant to the
assignment. The terms applicable to the assigned portion shall be the same as
those in effect for the option immediately prior to such assignment and shall be
set forth in such documents issued to the assignee as the Plan Administrator may
deem appropriate.
INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options.
Except as modified by the provisions of this Section II, all the provisions of
Articles One, Two and Seven shall be applicable to Incentive Options. Options
which are specifically designated as Non-Statutory Options when issued under the
Plan shall not be subject to the terms of this Section II.
ELIGIBILITY. Incentive Options may only be granted to Employees.
EXERCISE PRICE. The exercise price per share shall not be less than one hundred
percent (100%) of the Fair Market Value per share of Common Stock on the option
grant date.
DOLLAR LIMITATION. The aggregate Fair Market Value of the shares of Common Stock
(determined as of the respective date or dates of grant) for which one or more
options granted to any Employee under the Plan (or any other option plan of the
Corporation or any Parent or Subsidiary) may for the first time become
exercisable as Incentive Options during any one calendar year shall not exceed
the sum of One Hundred Thousand Dollars ($100,000). To the extent the Employee
holds two (2) or more such options which become exercisable for the first time
in the same calendar year, the foregoing limitation on the exercisability of
such options as Incentive Options shall be applied on the basis of the order in
which such options are granted. The provisions of this Section C shall
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apply to options previously issued under the Corporation's Incentive Stock
Option Plan, and shall be in substitution for the limitation set forth in
Section 2.05 of such Plan.
10% STOCKHOLDER. If any Employee to whom an Incentive Option is granted is a 10%
Stockholder, then the exercise price per share shall not be less than one
hundred ten percent (110%) of the Fair Market Value per share of Common Stock on
the option grant date, and the option term shall not exceed five (5) years
measured from the option grant date.
CORPORATE TRANSACTION/CHANGE IN CONTROL
In the event of any Corporate Transaction, each outstanding option shall
automatically accelerate so that each such option shall, immediately prior to
the effective date of the Corporate Transaction, become fully exercisable with
respect to the total number of shares of Common Stock at the time subject to
such option and may be exercised for any or all of those shares as fully-vested
shares of Common Stock.
All outstanding repurchase rights shall also terminate automatically, and the
shares of Common Stock subject to those terminated rights shall immediately vest
in full, in the event of any Corporate Transaction.
Immediately following the consummation of the Corporate Transaction, all
outstanding options shall terminate and cease to be outstanding.
In the event of a Change in Control each outstanding option shall automatically
accelerate so that each such option shall, immediately prior to the effective
date of the Change in Control, become fully exercisable with respect to the
total number of shares of Common Stock at the time subject to such option and
may be exercised for any or all of those shares as fully-vested shares of Common
Stock. Each option so accelerated shall remain exercisable for fully-vested
shares until the earlier of (i) the expiration of the option term or (ii) the
expiration of the one (1)-year period measured from the effective date of the
Optionee's cessation of Service. In addition, all of the Corporation's
outstanding repurchase rights with respect to shares held by the Optionee at the
time of such Change in Control shall immediately terminate, and the shares
subject to those terminated repurchase rights shall accordingly vest in full.
The portion of any Incentive Option accelerated in connection with a Corporate
Transaction or Change in Control shall remain exercisable as an Incentive Option
only to the extent the applicable One Hundred Thousand Dollar limitation is not
exceeded. To the extent such dollar limitation is exceeded, the accelerated
portion of such option shall be exercisable as a Non-Statutory Option under the
Federal tax laws.
The outstanding options shall in no way affect the right of the Corporation to
adjust, reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holders, the
cancellation of any or all outstanding options under the Discretionary Option
Grant Program (including outstanding options incorporated from the Predecessor
Plan) and to grant in substitution new options covering the same or different
number of shares of Common Stock but with an exercise price per share based on
the Fair Market Value per share of Common Stock on the new grant date.
STOCK APPRECIATION RIGHTS
The Plan Administrator shall have full power and authority to grant to selected
Optionees tandem stock appreciation rights and/or limited stock appreciation
rights.
The following terms shall govern the grant and exercise of tandem stock
appreciation rights:
One or more Optionees may be granted the right, exercisable upon such terms as
the Plan Administrator may establish, to elect between the exercise of the
underlying option for shares of Common Stock and the surrender of that option in
exchange for a distribution from the Corporation in an amount equal to the
excess of (a) the Fair
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Market Value (on the option surrender date) of the number of shares in which the
Optionee is at the time vested under the surrendered option (or surrendered
portion thereof) over (b) the aggregate exercise price payable for such shares.
No such option surrender shall be effective unless it is approved by the Plan
Administrator, either at the time of the actual option surrender or at any
earlier time. If the surrender is so approved, then the distribution to which
the Optionee shall be entitled may be made in shares of Common Stock valued at
Fair Market Value on the option surrender date, in cash, or partly in shares and
partly in cash, as the Plan Administrator shall in its sole discretion deem
appropriate.
If the surrender of an option is not approved by the Plan Administrator, then
the Optionee shall retain whatever rights the Optionee had under the surrendered
option (or surrendered portion thereof) on the option surrender date and may
exercise such rights at any time prior to the later of (a) five (5) business
days after the receipt of the rejection notice or (b) the last day on which the
option is otherwise exercisable in accordance with the terms of the documents
evidencing such option, but in no event may such rights be exercised more than
ten (10) years after the option grant date.
The following terms shall govern the grant and exercise of limited stock
appreciation rights:
One or more Section 16 Insiders may be granted limited stock appreciation rights
with respect to their outstanding options.
Upon the occurrence of a Hostile Take-Over, each individual holding one or more
options with such a limited stock appreciation right shall have the
unconditional right (exercisable for a thirty (30)-day period following such
Hostile Take-Over) to surrender each such option to the Corporation, to the
extent the option is at the time exercisable for vested shares of Common Stock.
In return for the surrendered option, the Optionee shall receive a cash
distribution from the Corporation in an amount equal to the excess of (A) the
Take-Over Price of the shares of Common Stock which are at the time vested under
each surrendered option (or surrendered portion thereof) over (B) the aggregate
exercise price payable for such shares. Such cash distribution shall be paid
within five (5) days following the option surrender date.
Neither the approval of the Plan Administrator nor the consent of the Board
shall be required in connection with such option surrender and cash
distribution.
The balance of the option (if any) shall remain outstanding and exercisable in
accordance with the documents evidencing such option.
SALARY INVESTMENT OPTION GRANT PROGRAM
OPTION GRANTS
The Primary Committee shall have the sole and exclusive authority to
determine the calendar year or years (if any) for which the Salary Investment
Option Grant Program is to be in effect and to select the Section 16 Insiders
and other highly compensated Employees eligible to participate in the Salary
Investment Option Grant Program for those calendar year or years. Each selected
individual who elects to participate in the Salary Investment Option Grant
Program must, prior to the start of each calendar year of participation, file
with the Plan Administrator (or its designate) an irrevocable authorization
directing the Corporation to reduce his or her base salary for that calendar
year by an amount not less than Ten Thousand Dollars ($10,000.00) nor more than
Fifty Thousand Dollars ($50,000.00). The Primary Committee shall have complete
discretion to determine whether to approve the filed authorization in whole or
in part. To the extent the Primary Committee approves the authorization, the
individual who filed that authorization shall be granted an option under the
Salary Investment Grant Program on or before the last trading day in January for
the calendar year for which the salary reduction is to be in effect. All grants
under the Salary Investment Option Grant Program shall be at the sole discretion
of the Primary Committee.
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OPTION TERMS
Each option shall be a Non-Statutory Option evidenced by one or more
documents in the form approved by the Plan Administrator; provided, however,
that each such document shall comply with the terms specified below.
EXERCISE PRICE.
The exercise price per share shall be thirty-three and one-third percent
(33-1/3%) of the Fair Market Value per share of Common Stock on the option grant
date.
The exercise price shall become immediately due upon exercise of the option and
shall be payable in one or more of the alternative forms authorized under the
Discretionary Option Grant Program. Except to the extent the sale and remittance
procedure specified thereunder is utilized, payment of the exercise price for
the purchased shares must be made on the Exercise Date.
NUMBER OF OPTION SHARES. The number of shares of Common Stock subject to the
option shall be determined pursuant to the following formula (rounded down to
the nearest whole number):
X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the dollar amount of the approved reduction in the
Optionee's base salary for the calendar year, and
B is the Fair Market Value per share of Common Stock on
the option grant date.
EXERCISE AND TERM OF OPTIONS. The option shall become exercisable in a series of
twelve (12) successive equal monthly installments upon the Optionee's completion
of each calendar month of Service in the calendar year for which the salary
reduction is in effect. Each option shall have a maximum term of ten (10) years
measured from the option grant date.
EFFECT OF TERMINATION OF SERVICE. Should the Optionee cease Service for any
reason while holding one or more options under this Article Three, then each
such option shall remain exercisable, for any or all of the shares for which the
option is exercisable at the time of such cessation of Service, until the
earlier of (i) the expiration of the ten (10)-year option term or (ii) the
expiration of the three (3)-year period measured from the date of such cessation
of Service. Should the Optionee die while holding one or more options under this
Article Three, then each such option may be exercised, for any or all of the
shares for which the option is exercisable at the time of the Optionee's
cessation of Service (less any shares subsequently purchased by Optionee prior
to death), by the personal representative of the Optionee's estate or by the
person or persons to whom the option is transferred pursuant to the Optionee's
will or in accordance with the laws of descent and distribution. Such right of
exercise shall lapse, and the option shall terminate, upon the earlier of (i)
the expiration of the ten (10)-year option term or (ii) the three (3)-year
period measured from the date of the Optionee's cessation of Service. However,
the option shall, immediately upon the Optionee's cessation of Service for any
reason, terminate and cease to remain outstanding with respect to any and all
shares of Common Stock for which the option is not otherwise at that time
exercisable.
CORPORATE TRANSACTION/CHANGE IN CONTROL
In the event of any Corporate Transaction while the Optionee remains in Service,
each outstanding option held by such Optionee under this Salary Investment
Option Grant Program shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Corporate Transaction,
become fully exercisable with respect to the total number of shares of Common
Stock at the time subject to such option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock. Each such outstanding
option shall be assumed by the successor corporation (or parent thereof) in the
Corporate Transaction and shall remain exercisable for the fully-vested shares
until the earlier of (i) the expiration of
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the ten (10)-year option term or (ii) the expiration of the three (3)-year
period measured from the date of the Optionee's cessation of Service.
In the event of a Change in Control while the Optionee remains in Service, each
outstanding option held by such Optionee under this Salary Investment Option
Grant Program shall automatically accelerate so that each such option shall
immediately become fully exercisable with respect to the total number of shares
of Common Stock at the time subject to such option and may be exercised for any
or all of those shares as fully-vested shares of Common Stock. The option shall
remain so exercisable until the earlier or (i) the expiration of the ten
(10)-year option term or (ii) the expiration of the three (3)-year period
measured from the date of the Optionee's cessation of Service.
Upon the occurrence of a Hostile Take-Over, the Optionee shall have a thirty
(30)-day period in which to surrender to the Corporation each of his or her
outstanding option grants. The Optionee shall in return be entitled to a cash
distribution from the Corporation in an amount equal to the excess of (i) the
Take-Over Price of the shares of Common Stock at the time subject to each
surrendered option (whether or not the Optionee is otherwise at the time vested
in those shares) over (ii) the aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days following the
surrender of the option to the Corporation. No approval or consent of the Board
or any Plan Administrator shall be required in connection with such option
surrender and cash distribution.
The grant of options under the Salary Investment Option Grant Program shall in
no way affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
REMAINING TERMS
The remaining terms of each option granted under the Salary Investment
Option Grant Program shall be the same as the terms in effect for option grants
made under the Discretionary Option Grant Program.
STOCK ISSUANCE PROGRAM
STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program
through direct and immediate issuances without any intervening option grants.
Each such stock issuance shall be evidenced by a Stock Issuance Agreement which
complies with the terms specified below.
PURCHASE PRICE.
The purchase price per share shall be fixed by the Plan Administrator, but shall
not be less than one hundred percent (100%) of the Fair Market Value per share
of Common Stock on the issuance date.
Subject to the provisions of Section I of Article Seven, shares of Common Stock
may be issued under the Stock Issuance Program for any of the following items of
consideration which the Plan Administrator may deem appropriate in each
individual instance:
cash or check made payable to the Corporation, or
past services rendered to the Corporation (or any Parent or Subsidiary).
VESTING PROVISIONS.
Shares of Common Stock issued under the Stock Issuance Program may, in the
discretion of the Plan Administrator, be fully and immediately vested upon
issuance or may vest in one or more installments over the Participant's period
of Service or upon attainment of specified performance objectives.
Any new, substituted or additional securities or other property (including money
paid other than as a regular cash dividend) which the Participant may have the
right to receive with respect to the Participant's unvested shares of
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Common Stock by reason of any stock dividend, stock split, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration shall be issued subject to (i) the same vesting requirements
applicable to the Participant's unvested shares of Common Stock and (ii) such
escrow arrangements as the Plan Administrator shall deem appropriate.
The Participant shall have full stockholder rights with respect to any shares of
Common Stock issued to the Participant under the Stock Issuance Program, whether
or not the Participant's interest in those shares is vested. Accordingly, the
Participant shall have the right to vote such shares and to receive any regular
cash dividends paid on such shares.
Should the Participant cease to remain in Service while holding one or more
unvested shares of Common Stock issued under the Stock Issuance Program or
should the performance objectives not be attained with respect to one or more
such unvested shares of Common Stock, then those shares shall be immediately
surrendered to the Corporation for cancellation, and the Participant shall have
no further stockholder rights with respect to those shares. To the extent the
surrendered shares were previously issued to the Participant for consideration
paid in cash or cash equivalent (including the Participant's purchase-money
indebtedness), the Corporation shall repay to the Participant the cash
consideration paid for the surrendered shares and shall cancel the unpaid
principal balance of any outstanding purchase-money note of the Participant
attributable to the surrendered shares.
The Plan Administrator may in its discretion waive the surrender and
cancellation of one or more unvested shares of Common Stock which would
otherwise occur upon the cessation of the Participant's Service or the
non-attainment of the performance objectives applicable to those shares. Such
waiver shall result in the immediate vesting of the Participant's interest in
the shares as to which the waiver applies. Such waiver may be effected at any
time, whether before or after the Participant's cessation of Service or the
attainment or non-attainment of the applicable performance objectives.
CORPORATE TRANSACTION/CHANGE IN CONTROL
All of the Corporation's outstanding repurchase rights under the Stock Issuance
Program shall terminate automatically, and all the shares of Common Stock
subject to those terminated rights shall immediately vest in full, in the event
of any Corporate Transaction.
All of the Corporation's outstanding repurchase under the Stock Issuance Program
shall automatically terminate, and the shares of Common Stock subject to those
terminated rights shall immediately vest, upon a Change in Control.
SHARE ESCROW/LEGENDS
Unvested shares may, in the Plan Administrator's discretion, be held in
escrow by the Corporation until the Participant's interest in such shares vests
or may be issued directly to the Participant with restrictive legends on the
certificates evidencing those unvested shares.
AUTOMATIC OPTION GRANT PROGRAM
OPTION TERMS
OPTION GRANTS. Each individual who is first elected or appointed as a
non-employee Board member at any time on or after the Underwriting Date shall
automatically be granted, on the date of such initial election or appointment, a
Non-Statutory Option to purchase 15,000 shares of Common Stock, provided that
individual has not previously been in the employ of the Corporation or any
Parent or Subsidiary.
EXERCISE PRICE.
The exercise price per share shall be equal to one hundred percent (100%) of the
Fair Market Value per share of Common Stock on the option grant date.
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The exercise price shall be payable in one or more of the alternative forms
authorized under the Discretionary Option Grant Program. Except to the extent
the sale and remittance procedure specified thereunder is utilized, payment of
the exercise price for the purchased shares must be made on the Exercise Date.
OPTION TERM. Each option shall have a term of ten (10) years measured from the
option grant date.
EXERCISE AND VESTING OF OPTIONS. Each option shall be exercisable for those
option shares which have vested. During the period of service as a member of the
Board, each 15,000-share grant shall vest to the extent of one third of the
number of shares granted thereby (5,000 shares), on the first anniversary of the
date of grant, and cumulatively to the extent of an additional one-third, on
each of the next two succeeding anniversaries, so that on the third anniversary
of the date of grant (provided service as a Board member has continued
throughout the period), the options granted to any eligible Director shall be
fully vested.
TERMINATION OF BOARD SERVICE. The following provisions shall govern the exercise
of any options held by the Optionee at the time the Optionee ceases to serve as
a Board member:
The Optionee (or, in the event of Optionee's death, the personal representative
of the Optionee's estate or the person or persons to whom the option is
transferred pursuant to the Optionee's will or in accordance with the laws of
descent and distribution) shall have a twelve (12)-month period following the
date of such cessation of Board service in which to exercise each such option.
During the twelve (12)-month exercise period, the option may not be exercised in
the aggregate for more than the number of vested shares of Common Stock for
which the option is exercisable at the time of the Optionee's cessation of Board
service.
Should the Optionee cease to serve as a Board member by reason of death or
Permanent Disability, then all shares at the time subject to the option shall
immediately vest so that such option may, during the twelve (12)-month exercise
period following such cessation of Board service, be exercised for all or any
portion of those shares as fully-vested shares of Common Stock.
In no event shall the option remain exercisable after the expiration of the
option term. Upon the expiration of the twelve (12)-month exercise period or (if
earlier) upon the expiration of the option term, the option shall terminate and
cease to be outstanding for any vested shares for which the option has not been
exercised. However, the option shall, immediately upon the Optionee's cessation
of Board service for any reason other than death or Permanent Disability,
terminate and cease to be outstanding to the extent the option is not otherwise
at that time exercisable for vested shares.
CORPORATE TRANSACTION/CHANGE IN CONTROL/HOSTILE TAKE-OVER
In the event of any Corporate Transaction, the shares of Common Stock at the
time subject to each outstanding option but not otherwise vested shall
automatically vest in full so that each such option shall, immediately prior to
the effective date of the Corporate Transaction, become fully exercisable for
all of the shares of Common Stock at the time subject to such option and may be
exercised for all or any portion of those shares as fully-vested shares of
Common Stock. Immediately following the consummation of the Corporate
Transaction, each automatic option grant shall terminate and cease to be
outstanding.
In connection with any Change in Control, the shares of Common Stock at the time
subject to each outstanding option but not otherwise vested shall automatically
vest in full so that each such option shall, immediately prior to the effective
date of the Change in Control, become fully exercisable for all of the shares of
Common Stock at the time subject to such option and may be exercised for all or
any portion of those shares as fully-vested shares of Common Stock. Each such
option shall remain exercisable for such fully-vested option shares until the
expiration or sooner termination of the option term or the surrender of the
option in connection with a Hostile Take-Over.
Upon the occurrence of a Hostile Take-Over, the Optionee shall have a thirty
(30)-day period in which to surrender to the Corporation each of his or her
outstanding automatic option grants. The Optionee shall in return be entitled to
a cash distribution from the Corporation in an amount equal to the excess of (i)
the Take-Over Price of the shares of Common Stock at the time subject to each
surrendered option (whether or not the Optionee is otherwise at the time
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vested in those shares) over (ii) the aggregate exercise price payable for such
shares. Such cash distribution shall be paid within five (5) days following the
surrender of the option to the Corporation. No approval or consent of the Board
or any Plan Administrator shall be required in connection with such option
surrender and cash distribution.
Each option which is assumed in connection with a Corporate Transaction shall be
appropriately adjusted, immediately after such Corporate Transaction, to apply
to the number and class of securities which would have been issuable to the
Optionee in consummation of such Corporate Transaction had the option been
exercised immediately prior to such Corporate Transaction. Appropriate
adjustments shall also be made to the exercise price payable per share under
each outstanding option, provided the aggregate exercise price payable for such
securities shall remain the same.
The grant of options under the Automatic Option Grant Program shall in no way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
REMAINING TERMS
The remaining terms of each option granted under the Automatic Option
Grant Program shall be the same as the terms in effect for option grants made
under the Discretionary Option Grant Program.
DIRECTOR FEE OPTION GRANT PROGRAM
OPTION GRANTS
Each non-employee Board member may elect to apply all or any portion of
the annual retainer fee otherwise payable in cash for his or her service on the
Board to the acquisition of a special option grant under this Director Fee
Option Grant Program. Such election must be filed with the Corporation's Chief
Financial Officer prior to the first day of the calendar year for which the
annual retainer fee which is the subject of that election is otherwise payable.
Each non-employee Board member who files such a timely election shall
automatically be granted an option under this Director Fee Option Grant Program
on the first trading day in January in the calendar year for which the annual
retainer fee which is the subject of that election would otherwise be payable.
OPTION TERMS
Each option shall be a Non-Statutory Option governed by the terms and
conditions specified below.
EXERCISE PRICE.
The exercise price per share shall be thirty-three and one-third percent
(33-1/3%) of the Fair Market Value per share of Common Stock on the option grant
date.
The exercise price shall become immediately due upon exercise of the option and
shall be payable in one or more of the alternative forms authorized under the
Discretionary Option Grant Program. Except to the extent the sale and remittance
procedure specified thereunder is utilized, payment of the exercise price for
the purchased shares must be made on the Exercise Date.
NUMBER OF OPTION SHARES. The number of shares of Common Stock subject to the
option shall be determined pursuant to the following formula (rounded down to
the nearest whole number):
X = A / (B x 66-2/3%), where
X is the number of option shares,
A is the portion of the annual retainer fee subject to the
non-employee Board member's election, and
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B is the Fair Market Value per share of Common Stock on
the option grant date.
EXERCISE AND TERM OF OPTIONS. The option shall become exercisable for fifty
percent (50%) of the option shares upon the Optionee's completion of six (6)
months of Board service in the calendar year for which his or her election under
this Director Fee Option Grant Program is in effect, and the balance of the
option shares shall become exercisable in a series of six (6) successive equal
monthly installments upon the Optionee's completion of each additional month of
Board service during that calendar year. Each option shall have a maximum term
of ten (10) years measured from the option grant date.
TERMINATION OF BOARD SERVICE. Should the Optionee cease Board service for any
reason (other than death or Permanent Disability) while holding one or more
options under this Director Fee Option Grant Program, then each such option
shall remain exercisable, for any or all of the shares for which the option is
exercisable at the time of such cessation of Board service, until the earlier of
(i) the expiration of the ten (10)-year option term or (ii) the expiration of
the three (3)-year period measured from the date of such cessation of Board
service. However, each option held by the Optionee under this Director Fee
Option Grant Program at the time of his or her cessation of Board service shall
immediately terminate and cease to remain outstanding with respect to any and
all shares of Common Stock for which the option is not otherwise at that time
exercisable.
DEATH OR PERMANENT DISABILITY. Should the Optionee's service as a Board member
cease by reason of death or Permanent Disability, then each option held by such
Optionee under this Director Fee Option Grant Program shall immediately become
exercisable for all the shares of Common Stock at the time subject to that
option, and the option may be exercised for any or all of those shares as
fully-vested shares until the earlier of (i) the expiration of the ten (10)-year
option term or (ii) the expiration of the three (3)-year period measured from
the date of such cessation of Board service.
Should the Optionee die after cessation of Board service but while
holding one or more options under this Director Fee Option Grant Program, then
each such option may be exercised, for any or all of the shares for which the
option is exercisable at the time of the Optionee's cessation of Board service
(less any shares subsequently purchased by Optionee prior to death), by the
personal representative of the Optionee's estate or by the person or persons to
whom the option is transferred pursuant to the Optionee's will or in accordance
with the laws of descent and distribution. Such right of exercise shall lapse,
and the option shall terminate, upon the earlier of (i) the expiration of the
ten (10)-year option term or (ii) the three (3)-year period measured from the
date of the Optionee's cessation of Board service.
CORPORATE TRANSACTION/CHANGE IN CONTROL
In the event of any Corporate Transaction while the Optionee remains a Board
member, each outstanding option held by such Optionee under this Director Fee
Option Grant Program shall automatically accelerate so that each such option
shall, immediately prior to the effective date of the Corporate Transaction,
become fully exercisable with respect to the total number of shares of Common
Stock at the time subject to such option and may be exercised for any or all of
those shares as fully-vested shares of Common Stock. Each such outstanding
option shall be assumed by the successor corporation (or parent thereof) in the
Corporate Transaction and shall remain exercisable for the fully-vested shares
until the earlier of (i) the expiration of the ten (10)-year option term or (ii)
the expiration of the three (3)-year period measured from the date of the
Optionee's cessation of Board service.
In the event of a Change in Control while the Optionee remains in Service, each
outstanding option held by such Optionee under this Director Fee Option Grant
Program shall automatically accelerate so that each such option shall
immediately become fully exercisable with respect to the total number of shares
of Common Stock at the time subject to such option and may be exercised for any
or all of those shares as fully-vested shares of Common Stock. The option shall
remain so exercisable until the earlier or (i) the expiration of the ten
(10)-year option term or (ii) the expiration of the three (3)-year period
measured from the date of the Optionee's cessation of Service.
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Upon the occurrence of a Hostile Take-Over, the Optionee shall have a thirty
(30)-day period in which to surrender to the Corporation each of his or her
outstanding option grants. The Optionee shall in return be entitled to a cash
distribution from the Corporation in an amount equal to the excess of (i) the
Take-Over Price of the shares of Common Stock at the time subject to each
surrendered option (whether or not the Optionee is otherwise at the time vested
in those shares) over (ii) the aggregate exercise price payable for such shares.
Such cash distribution shall be paid within five (5) days following the
surrender of the option to the Corporation. No approval or consent of the Board
or any Plan Administrator shall be required in connection with such option
surrender and cash distribution.
The grant of options under the Director Fee Option Grant Program shall in no way
affect the right of the Corporation to adjust, reclassify, reorganize or
otherwise change its capital or business structure or to merge, consolidate,
dissolve, liquidate or sell or transfer all or any part of its business or
assets.
REMAINING TERMS
The remaining terms of each option granted under this Director Fee
Option Grant Program shall be the same as the terms in effect for option grants
made under the Discretionary Option Grant Program.
MISCELLANEOUS
FINANCING
The Plan Administrator may permit any Optionee or Participant to pay
the option exercise price under the Discretionary Option Grant Program or the
purchase price of shares issued under the Stock Issuance Program by delivering a
full-recourse, interest bearing promissory note payable in one or more
installments. The terms of any such promissory note (including the interest rate
and the terms of repayment) shall be established by the Plan Administrator in
its sole discretion. In no event may the maximum credit available to the
Optionee or Participant exceed the sum of (i) the aggregate option exercise
price or purchase price payable for the purchased shares plus (ii) any Federal,
state and local income and employment tax liability incurred by the Optionee or
the Participant in connection with the option exercise or share purchase.
TAX WITHHOLDING
The Corporation's obligation to deliver shares of Common Stock upon the exercise
of options or the issuance or vesting of such shares under the Plan shall be
subject to the satisfaction of all applicable Federal, state and local income
and employment tax withholding requirements.
The Plan Administrator may, in its discretion, provide any or all holders of
Non-Statutory Options or unvested shares of Common Stock under the Plan (other
than the options granted or the shares issued under the Automatic Option Grant
or Director Fee Option Grant Program) with the right to use shares of Common
Stock in satisfaction of all or part of the Taxes incurred by such holders in
connection with the exercise of their options or the vesting of their shares.
Such right may be provided to any such holder in either or both of the following
formats:
Stock Withholding: The election to have the Corporation withhold, from
the shares of Common Stock otherwise issuable upon the exercise of such
Non-Statutory Option or the vesting of such shares, a portion of those shares
with an aggregate Fair Market Value equal to the percentage of the Taxes (not to
exceed one hundred percent (100%)) designated by the holder.
Stock Delivery: The election to deliver to the Corporation, at the time
the Non-Statutory Option is exercised or the shares vest, one or more shares of
Common Stock previously acquired by such holder (other than in connection with
the option exercise or share vesting triggering the Taxes) with an aggregate
Fair Market Value equal to the percentage of the Taxes (not to exceed one
hundred percent (100%)) designated by the holder.
EFFECTIVE DATE AND TERM OF THE PLAN
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The Plan shall become effective immediately upon the Plan Effective Date.
However, the Salary Investment Option Grant Program shall not be implemented
until such time as the Primary Committee may deem appropriate. Options may be
granted under the Discretionary Option Grant or Automatic Option Grant Program
at any time on or after the Plan Effective Date. However, no options granted
under the Plan may be exercised, and no shares shall be issued under the Plan,
until the Plan is approved by the Corporation's stockholders. If such
stockholder approval is not obtained within twelve (12) months after the Plan
Effective Date, then all options previously granted under this Plan shall
terminate and cease to be outstanding, and no further options shall be granted
and no shares shall be issued under the Plan.
The Plan shall serve as the successor to the Predecessor Plans, and no further
option grants or direct stock issuances shall be made under the Predecessor
Plans after the Section 12 Registration Date. All options outstanding under the
Predecessor Plans on the Section 12 Registration Date shall be incorporated into
the Plan at that time and shall be treated as outstanding options under the
Plan. However, each outstanding option so incorporated shall continue to be
governed solely by the terms of the documents evidencing such option, and no
provision of the Plan shall be deemed to affect or otherwise modify the rights
or obligations of the holders of such incorporated options with respect to their
acquisition of shares of Common Stock.
One or more provisions of the Plan, including (without limitation) the
option/vesting acceleration provisions of Article Two relating to Corporate
Transactions and Changes in Control, may, in the Plan Administrator's
discretion, be extended to one or more options incorporated from the Predecessor
Plans which do not otherwise contain such provisions.
The Plan shall terminate upon the earliest of (i) February 25, 2007, (ii) the
date on which all shares available for issuance under the Plan shall have been
issued as fully-vested shares or (iii) the termination of all outstanding
options in connection with a Corporate Transaction. Upon such plan termination,
all outstanding option grants and unvested stock issuances shall thereafter
continue to have force and effect in accordance with the provisions of the
documents evidencing such grants or issuances.
AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to amend or
modify the Plan in any or all respects. However, no such amendment or
modification shall adversely affect the rights and obligations with respect to
stock options or unvested stock issuances at the time outstanding under the Plan
unless the Optionee or the Participant consents to such amendment or
modification. In addition, certain amendments may require stockholder approval
pursuant to applicable laws or regulations in order to preserve the
deductibility or other tax treatment of options and shares granted hereunder, or
the exemption of recipients of such shares or options from Section 16(b) of the
1934 Act.
Options to purchase shares of Common Stock may be granted under the
Discretionary Option Grant and Salary Investment Option Grant Programs and
shares of Common Stock may be issued under the Stock Issuance Program that are
in each instance in excess of the number of shares then available for issuance
under the Plan, provided any excess shares actually issued under those programs
shall be held in escrow until there is obtained stockholder approval of an
amendment sufficiently increasing the number of shares of Common Stock available
for issuance under the Plan. If such stockholder approval is not obtained within
twelve (12) months after the date the first such excess issuances are made, then
(i) any unexercised options granted on the basis of such excess shares shall
terminate and cease to be outstanding and (ii) the Corporation shall promptly
refund to the Optionees and the Participants the exercise or purchase price paid
for any excess shares issued under the Plan and held in escrow, together with
interest (at the applicable Short Term Federal Rate) for the period the shares
were held in escrow, and such shares shall thereupon be automatically cancelled
and cease to be outstanding.
USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares
of Common Stock under the Plan shall be used for general corporate purposes.
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REGULATORY APPROVALS
The implementation of the Plan, the granting of any stock option under the Plan
and the issuance of any shares of Common Stock (i) upon the exercise of any
granted option or (ii) under the Stock Issuance Program shall be subject to the
Corporation's procurement of all approvals and permits required by regulatory
authorities having jurisdiction over the Plan, the stock options granted under
it and the shares of Common Stock issued pursuant to it.
No shares of Common Stock or other assets shall be issued or delivered under the
Plan unless and until there shall have been compliance with all applicable
requirements of Federal and state securities laws, including the filing and
effectiveness of the Form S-8 registration statement for the shares of Common
Stock issuable under the Plan, and all applicable listing requirements of any
stock exchange (or the Nasdaq National Market, if applicable) on which Common
Stock is then listed for trading.
NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the Participant
any right to continue in Service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Corporation
(or any Parent or Subsidiary employing or retaining such person) or of the
Optionee or the Participant, which rights are hereby expressly reserved by each,
to terminate such person's Service at any time for any reason, with or without
cause.
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APPENDIX
The following definitions shall be in effect under the Plan:
A. AUTOMATIC OPTION GRANT PROGRAM shall mean the automatic option grant
program in effect under the Plan.
B. BOARD shall mean the Corporation's Board of Directors.
C. CHANGE IN CONTROL shall mean a change of control of the Corporation
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the 1934 Act whether or not the
Corporation is then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be deemed to have
occurred if:
(i) any person or group (as such terms are used in connection with
Sections 13(d) and 14(d) of the 1934 Act) becomes the "beneficial
owner" (as defined in Rule 13d-3 and 13d-5 under the 1934 Act),
directly or indirectly, of securities of the Corporation representing
35% or more of the combined voting power of the Corporation's then
outstanding securities;
(ii) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of
which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board
thereafter; or
(iii) during any period of twenty-four consecutive months, individuals
who at the beginning of such period constituted the Board (including
for this purpose any new director whose election or nomination for
election by the Corporation's stockholders was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board.
Notwithstanding the foregoing provisions of this Section C, a "Change
in Control" will not be deemed to have occurred solely because of the
acquisition of securities of the Corporation (or any reporting requirement under
the 1934 Act relating thereto) by an employee benefit plan maintained by the
Corporation for its employees.
D. CODE shall mean the Internal Revenue Code of 1986, as amended.
E. COMMON STOCK shall mean the Corporation's common stock.
F. CORPORATE TRANSACTION shall mean either a stockholder-approved sale,
transfer or other disposition of all or substantially all of the Corporation's
assets in complete liquidation or dissolution of the Corporation.
G. CORPORATION shall mean Globecomm Systems Inc., a Delaware
corporation, and its successors.
H. DIRECTOR FEE OPTION GRANT PROGRAM shall mean the special stock
option grant in effect for non-employee Board members under Article Six of the
Plan.
I. DISCRETIONARY OPTION GRANT PROGRAM shall mean the discretionary
option grant program in effect under the Plan.
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J. ELIGIBLE DIRECTOR shall mean a non-employee Board member eligible to
participate in the Automatic Option Grant Program in accordance with the
eligibility provisions of Article One.
K. EMPLOYEE shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
L. EXERCISE DATE shall mean the date on which the Corporation shall
have received written notice of the option exercise.
M. FAIR MARKET VALUE per share of Common Stock on any relevant date
shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be deemed equal to
the closing selling price per share of Common Stock on the date in
question, as such price is reported on the Nasdaq National Market or
any successor system. If there is no closing selling price for the
Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists.
(ii) If the Common Stock is at the time listed on any Stock Exchange,
then the Fair Market Value shall be deemed equal to the closing selling
price per share of Common Stock on the date in question on the Stock
Exchange determined by the Plan Administrator to be the primary market
for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no closing
selling price for the Common Stock on the date in question, then the
Fair Market Value shall be the closing selling price on the last
preceding date for which such quotation exists.
(iii) For purposes of any option grants made on the Underwriting Date,
the Fair Market Value shall be deemed to be equal to the price per
share at which the Common Stock is to be sold in the initial public
offering pursuant to the Underwriting Agreement.
(iv) For purposes of any option grants made prior to the Underwriting
Date, or after the Underwriting Date if the Common Stock is not at the
time traded on the Nasdaq National Market or any Stock Exchange, the
Fair Market Value shall be determined by the Plan Administrator, after
taking into account such factors as it deems appropriate.
N. HOSTILE TAKE-OVER shall mean the acquisition, directly or
indirectly, by any person or related group of persons (other than the
Corporation or a person that directly or indirectly controls, is controlled by,
or is under common control with, the Corporation) of beneficial ownership
(within the meaning of Rule 13d-3 of the 1934 Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities pursuant to a tender or exchange offer made directly to
the Corporation's stockholders which the Board does not recommend such
stockholders to accept.
O. INCENTIVE OPTION shall mean an option which satisfies the
requirements of Code Section 422.
P. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by the Optionee or Participant, any unauthorized use
or disclosure by such person of confidential information or trade secrets of the
Corporation (or any Parent or Subsidiary), or any other intentional misconduct
by such person adversely affecting the business or affairs of the Corporation
(or any Parent or Subsidiary) in a material manner.
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The foregoing definition shall not be deemed to be inclusive of all the acts or
omissions which the Corporation (or any Parent or Subsidiary) may consider as
grounds for the dismissal or discharge of any Optionee, Participant or other
person in the Service of the Corporation (or any Parent or Subsidiary).
Q. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended.
R. NON-STATUTORY OPTION shall mean an option not intended to satisfy
the requirements of Code Section 422.
S. OPTIONEE shall mean any person to whom an option is granted under
the Discretionary Option Grant, Salary Investment Option Grant, Automatic Option
Grant or Director Fee Option Grant Program.
T. PARENT shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
U. PARTICIPANT shall mean any person who is issued shares of Common
Stock under the Stock Issuance Program.
V. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the
inability of the Optionee or the Participant to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment expected to result in death or to be of continuous duration of twelve
(12) months or more. However, solely for purposes of the Automatic Option Grant
and Director Fee Option Grant Programs, Permanent Disability or Permanently
Disabled shall mean the inability of the non-employee Board member to perform
his or her usual duties as a Board member by reason of any medically
determinable physical or mental impairment expected to result in death or to be
of continuous duration of twelve (12) months or more.
W. PLAN shall mean the Corporation's 1997 Stock Incentive Plan, as set
forth in this document.
X. PLAN ADMINISTRATOR shall mean the particular entity, whether the
Primary Committee, the Board or the Secondary Committee, which is authorized to
administer the Discretionary Option Grant, Salary Investment Option Grant and
Stock Issuance Programs with respect to one or more classes of eligible persons,
to the extent such entity is carrying out its administrative functions under
those programs with respect to the persons under its jurisdiction.
Y. PLAN EFFECTIVE DATE shall mean February 26, 1997, the date on which
the Plan was adopted by the Board.
Z. PREDECESSOR PLANS shall mean the Corporation's pre-existing
Incentive Stock Option Plan and Director Stock Option Plan in effect immediately
prior to the Plan Effective Date hereunder.
AA. PRIMARY COMMITTEE shall mean the committee of two (2) or more
non-employee Board members appointed by the Board to administer the
Discretionary Option Grant and Stock Issuance Programs with respect to Section
16 Insiders and to administer the Salary Investment Option Grant Program with
respect to all eligible individuals.
BB. SALARY INVESTMENT OPTION GRANT PROGRAM shall mean the salary
investment grant program in effect under the Plan.
CC. SECONDARY COMMITTEE shall mean a committee of one (1) or more Board
members appointed by the Board to administer the Discretionary Option Grant and
Stock Issuance Programs with respect to eligible persons other than Section 16
Insiders.
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DD. SECTION 12 REGISTRATION DATE shall mean the date on which the
Common Stock is first registered under Section 12(g) of Section 16 of the 1934
Act.
EE. SECTION 16 INSIDER shall mean an officer or director of the
Corporation subject to the short-swing profit liabilities of Section 16 of the
1934 Act.
FF. SERVICE shall mean the performance of services for the Corporation
(or any Parent or Subsidiary) by a person in the capacity of an Employee, a
non-employee member of the board of directors or a consultant or independent
advisor, except to the extent otherwise specifically provided in the documents
evidencing the option grant or stock issuance.
GG. STOCK EXCHANGE shall mean either the American Stock Exchange or the
New York Stock Exchange.
HH. STOCK ISSUANCE AGREEMENT shall mean the agreement entered into by
the Corporation and the Participant at the time of issuance of shares of Common
Stock under the Stock Issuance Program.
II. STOCK ISSUANCE PROGRAM shall mean the stock issuance program in
effect under the Plan.
JJ. SUBSIDIARY shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations beginning with the Corporation, provided
each corporation (other than the last corporation) in the unbroken chain owns,
at the time of the determination, stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
KK. TAKE-OVER PRICE shall mean the greater of (i) the Fair Market Value
per share of Common Stock on the date the option is surrendered to the
Corporation in connection with a Hostile Take-Over or (ii) the highest reported
price per share of Common Stock paid by the tender offeror in effecting such
Hostile Take-Over. However, if the surrendered option is an Incentive Option,
the Take-Over Price shall not exceed the clause (i) price per share.
LL. TAXES shall mean the Federal, state and local income and employment
tax liabilities incurred by the holder of Non-Statutory Options or unvested
shares of Common Stock in connection with the exercise of those options or the
vesting of those shares.
MM. 10% STOCKHOLDER shall mean the owner of stock (as determined under
Code Section 424(d)) possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Corporation (or any Parent
or Subsidiary).
NN. UNDERWRITING AGREEMENT shall mean the agreement between the
Corporation and the underwriter or underwriters managing the initial public
offering of the Common Stock.
OO. UNDERWRITING DATE shall mean the date on which the Underwriting
Agreement is executed and priced in connection with an initial public offering
of the Common Stock.
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EXHIBIT 99.8
COMMON STOCK PURCHASE WARRANT-STEPHEN JUDLOWE
WORLDCOMM SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
Worldcomm Systems, Inc. a Delaware corporation (the "Company"), hereby
grants to Stephen Judlowe the right to purchase, at any time from November 21,
1996 until 5:00 P.M., New York City time, on November 21, 2006, up to 5,000
fully paid and non-assessable shares of its Common Stock, par value $.01 per
share ("Common Stock").
This Warrant is exercisable at a price of $28.00 per share of Common Stock
issuable hereunder (the "Exercise Price") payable in cash or by certified or
official bank check in New York Clearing House funds, subject to adjustment as
provided in Article 4 hereof. Upon surrender of this Warrant with the annexed
Subscription Form duly executed, together with payment of the Purchase Price (as
hereinafter defined) for the shares of Common Stock purchased, at the Company's
principal executive offices in New York (presently located 375 Oser Avenue,
Hauppauge, NY 11788) the registered holder of the Warrant ("holder") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased.
1. EXERCISE OF WARRANT. The purchase rights represented by this warrant are
exercisable at the option of the holder, in whole or in part (but not as to
fractional shares of the common stock) during any period in which this
warrant may be exercised as set forth above. In the case of the purchase of
less than all the shares of common stock purchasable under this warrant, the
company shall cancel this warrant upon the surrender hereof and shall
execute and deliver a new warrant of like tenor for the balance of the
shares of common stock purchasable hereunder.
2. ISSUANCE OF STOCK CERTIFICATES. The issuance of certificates for shares of
common stock upon the exercise of this warrant shall be made without charge
to the holder including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of articles 2 and 4 hereof) be issued in the name of, or in such
names as may be directed by, the holder; provided, however, that the company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of such certificate in a name
other than that of the holder and the company shall not be required to issue
or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the company the amount of
such tax or shall have established to the satisfaction of the company that
such tax has been paid.
3. RESTRICTION ON TRANSFER OF WARRANT. The holder of this warrant, by his
acceptance hereof, covenants and agrees that this warrant is being acquired
for investment and not with a view to the distribution thereof, and that it
will not be sold, transferred, assigned, hypothecated or otherwise disposed
of except in compliance with the federal securities laws as set forth in an
opinion of counsel.
4. PRICE. The initial purchase price shall be $28.00 per share of common stock.
The adjusted purchase price shall result from time to time from any and all
adjustments of the initial purchase price in accordance with the provisions
of article 4 hereof. The term "purchase price" herein shall mean the initial
purchase price or the adjusted purchase price, as the context may require.
5. ADJUSTMENTS OF PURCHASE PRICE AND NUMBER OF SHARES.
a) SUBDIVISION AND COMBINATION. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the
Purchase Price shall forthwith be proportionately decreased in the case
of subdivision or increased in the case of combination.
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b) ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the Purchase
Price pursuant to the provisions of this Article 4, the number of
shares of Common Stock issuable upon the exercise of each Warrant shall
be adjusted to the nearest full share by multiplying the Purchase Price
in effect immediately prior to such adjustment by the number of shares
of Common Stock issuable upon exercise of the Warrant immediately prior
to such adjustment and dividing the product so obtained by the adjusted
Purchase Price.
c) RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding shares of Common Stock
(other than a change in par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), or in
the case of any consolidation of the Company with, or merger of the
Company into, another corporation (other than a consolidation or merger
in which the Company is the surviving corporation and which does not
result in any reclassification or change of the outstanding shares of
Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or
in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the holder of this Warrant
shall thereafter have the right to purchase the kind and number of
shares of stock and other securities and property which would have been
received upon such reclassification, change, consolidation, merger,
sale or conveyance if such holder had exercised this Warrant
immediately prior to such transaction, at a price equal to the product
of (x) the number of shares issuable upon exercise of this Warrant and
(y) the Purchase Price in effect immediately prior to the record date
for such reclassification, change, consolidation, merger, sale or
conveyance.
6. EXCHANGE AND REPLACEMENT OF WARRANT. This warrant is exchangeable without
expense, upon the surrender hereof by the registered holder at the principal
executive office of the company, for a new warrant of like tenor and date
representing in the aggregate the right to purchase the same number of
shares as are purchasable hereunder in such denominations as shall be
designated by the registered holder hereof at the time of such surrender.
Upon receipt by the company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this warrant, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
warrant, if mutilated, the company will make and deliver a new warrant of
like tenor, in lieu of this warrant.
7. ELIMINATION OF FRACTIONAL INTERESTS. The company shall not be required to
issue stock certificates representing fractions of shares of common stock,
nor shall it be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated.
8. RESERVATION AND LISTING OF SHARES. The company shall at all times reserve
and keep available out of its authorized shares of common stock, solely for
the purpose of issuance upon the exercise of this warrant, such number of
shares of common stock as shall be issuable upon the exercise hereof. The
company covenants and agrees that, upon exercise of this warrant and payment
of the purchase price therefor, all shares of common stock issuable upon
such exercise shall be duly and validly issued, fully paid and
non-assessable, provided that the purchase price per share shall equal or
exceed the par value of the common stock. As long as the warrant shall be
outstanding, the company shall use its best efforts to cause all shares of
common stock issuable upon the exercise of the warrant to be listed (subject
to official notice of issuance) on all securities exchanges on which the
common stock may then be listed.
9. NOTICES TO WARRANT HOLDERS. Nothing contained in this warrant shall be
construed as conferring upon the holder hereof the right to vote or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having
any rights whatsoever as a shareholder of the company. If, however, at any
time prior to the expiration of the warrant and prior to its exercise, any
of the following events shall occur:
a) The Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
<PAGE>
b) The Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
c) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
10. NOTICES.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made when delivered, or mailed
by registered or certified mail, return receipt requested:
(a) If to the registered holder of this Warrant, to the address of such
holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first page of this
Warrant.
11. SUCCESSORS.
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
12. HEADINGS.
The Article and Section headings in this Warrant are inserted for purposes
of convenience only and shall have no substantive effect.
13. LAW GOVERNING.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York.
WITNESS the seal of the Company and the signature of its duly authorized
President.
WORLDCOMM SYSTEMS, INC.
By: /s/ Kenneth A. Miller
-------------------------
Kenneth Miller, President
Attest:
/s/ Thomas DiCicco
- -------------------------
Thomas DiCicco, Secretary
/s/ Stephen Judlowe
-------------------------
Stephen Judlowe
<PAGE>
SUBSCRIPTION FORM
(To be Executed by the Registered Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to purchase
_______ shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes payment of the Purchase Price of such
shares in full.
----------------------------------
Signature
Address
----------------------------------
----------------------------------
Dated:
-------------------------
<PAGE>
Date: March 22, 1997
Subject: REPLACEMENT WARRANT
At the Board of Directors Meeting held on February 26, 1997 the board requested
the replacement of Warrants granted on 11/21/96 to Steve Judlowe for 5,000
shares at $28.00 per share to be replaced by the current valued price per share
of $23.00.
"OLD" WARRANT "NEW" WARRANT
- ------------------------------------- ---------------------------------------
Price Per Number of Price Per Number of
Date of Grant Share Shares Date of Grant Share Shares
- ------------- --------- --------- ------------- --------- ---------
11/26/96 28.00 5,000 2/26/97 $23.00 5,000
The vesting schedule of the "New" Warrants shall be the same as that provided
for in the ISO Agreement and shall commence on 11/21/96, the date of grant
for the "Old" Warrant.
Your acceptance of the "New" Warrant shall constitute your agreement to the
termination of the "Old" Warrant being replaced and such "Old" Warrant shall
be cancelled without the need of any further action on the part of the company.
GLOBECOMM SYSTEMS INC.
By: /s/ Kenneth A. Miller
----------------------------------------
Kenneth A. Miller, President
Corporate Seal
Attest:
Accepted: /s/ Stephen Judlowe
-----------------------------------
Steve Judlowe /s/ Thomas DiCicco
-----------------------------
Date March 26, 1997 Thomas DiCicco, Secretary
---------------------------------------
<PAGE>
EXHIBIT 99.9
COMMON STOCK PURCHASE WARRANT-JOHN BALAN
WORLDCOMM SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
Worldcomm Systems, Inc. a Delaware corporation (the "Company"), hereby
grants to John Balan to purchase, at any time from November 21, 1996 until 5:00
P.M., New York City time, on November 21, 2006, up to 7,500 fully paid and
non-assessable shares of its Common Stock, par value $.01 per share ("Common
Stock").
This Warrant is exercisable at a price of $28.00 per share of Common Stock
issuable hereunder (the "Exercise Price") payable in cash or by certified or
official bank check in New York Clearing House funds, subject to adjustment as
provided in Article 4 hereof. Upon surrender of this Warrant with the annexed
Subscription Form duly executed, together with payment of the Purchase Price (as
hereinafter defined) for the shares of Common Stock purchased, at the Company's
principal executive offices in New York (presently located 375 Oser Avenue,
Hauppauge, NY 11788) the registered holder of the Warrant ("holder") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased.
1. EXERCISE OF WARRANT. The purchase rights represented by this warrant are
exercisable at the option of the holder, in whole or in part (but not as to
fractional shares of the common stock) during any period in which this
warrant may be exercised as set forth above. In the case of the purchase of
less than all the shares of common stock purchasable under this warrant, the
company shall cancel this warrant upon the surrender hereof and shall
execute and deliver a new warrant of like tenor for the balance of the
shares of common stock purchasable hereunder.
2. ISSUANCE OF STOCK CERTIFICATES. The issuance of certificates for shares of
common stock upon the exercise of this warrant shall be made without charge
to the holder including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of articles 2 and 4 hereof) be issued in the name of, or in such
names as may be directed by, the holder; provided, however, that the company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of such certificate in a name
other than that of the holder and the company shall not be required to issue
or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the company the amount of
such tax or shall have established to the satisfaction of the company that
such tax has been paid.
3. RESTRICTION ON TRANSFER OF WARRANT. The holder of this warrant, by his
acceptance hereof, covenants and agrees that this warrant is being acquired
for investment and not with a view to the distribution thereof, and that it
will not be sold, transferred, assigned, hypothecated or otherwise disposed
of except in compliance with the federal securities laws as set forth in an
opinion of counsel.
4. PRICE. The initial purchase price shall be $28.00 per share of common stock.
The adjusted purchase price shall result from time to time from any and all
adjustments of the initial purchase price in accordance with the provisions
of article 4 hereof. The term "purchase price" herein shall mean the initial
purchase price or the adjusted purchase price, as the context may require.
5. ADJUSTMENTS OF PURCHASE PRICE AND NUMBER OF SHARES.
a) SUBDIVISION AND COMBINATION. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the
Purchase Price shall forthwith be proportionately decreased in the case
of subdivision or increased in the case of combination.
<PAGE>
b) ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the Purchase
Price pursuant to the provisions of this Article 4, the number of
shares of Common Stock issuable upon the exercise of each Warrant shall
be adjusted to the nearest full share by multiplying the Purchase Price
in effect immediately prior to such adjustment by the number of shares
of Common Stock issuable upon exercise of the Warrant immediately prior
to such adjustment and dividing the product so obtained by the adjusted
Purchase Price.
c) RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding shares of Common Stock
(other than a change in par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), or in
the case of any consolidation of the Company with, or merger of the
Company into, another corporation (other than a consolidation or merger
in which the Company is the surviving corporation and which does not
result in any reclassification or change of the outstanding shares of
Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or
in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the holder of this Warrant
shall thereafter have the right to purchase the kind and number of
shares of stock and other securities and property which would have been
received upon such reclassification, change, consolidation, merger,
sale or conveyance if such holder had exercised this Warrant
immediately prior to such transaction, at a price equal to the product
of (x) the number of shares issuable upon exercise of this Warrant and
(y) the Purchase Price in effect immediately prior to the record date
for such reclassification, change, consolidation, merger, sale or
conveyance.
6. EXCHANGE AND REPLACEMENT OF WARRANT. This warrant is exchangeable without
expense, upon the surrender hereof by the registered holder at the principal
executive office of the company, for a new warrant of like tenor and date
representing in the aggregate the right to purchase the same number of
shares as are purchasable hereunder in such denominations as shall be
designated by the registered holder hereof at the time of such surrender.
Upon receipt by the company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this warrant, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
warrant, if mutilated, the company will make and deliver a new warrant of
like tenor, in lieu of this warrant.
7. ELIMINATION OF FRACTIONAL INTERESTS. The company shall not be required to
issue stock certificates representing fractions of shares of common stock,
nor shall it be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated.
8. RESERVATION AND LISTING OF SHARES. The company shall at all times reserve
and keep available out of its authorized shares of common stock, solely for
the purpose of issuance upon the exercise of this warrant, such number of
shares of common stock as shall be issuable upon the exercise hereof. The
company covenants and agrees that, upon exercise of this warrant and payment
of the purchase price therefor, all shares of common stock issuable upon
such exercise shall be duly and validly issued, fully paid and
non-assessable, provided that the purchase price per share shall equal or
exceed the par value of the common stock. As long as the warrant shall be
outstanding, the company shall use its best efforts to cause all shares of
common stock issuable upon the exercise of the warrant to be listed (subject
to official notice of issuance) on all securities exchanges on which the
common stock may then be listed.
9. NOTICES TO WARRANT HOLDERS. Nothing contained in this warrant shall be
construed as conferring upon the holder hereof the right to vote or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having
any rights whatsoever as a shareholder of the company. If, however, at any
time prior to the expiration of the warrant and prior to its exercise, any
of the following events shall occur:
a) The Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
<PAGE>
b) The Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
c) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
10. NOTICES.
All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly made when delivered, or mailed
by registered or certified mail, return receipt requested:
(a) If to the registered holder of this Warrant, to the address of such
holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first page of
this Warrant.
11. SUCCESSORS.
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
12. HEADINGS.
The Article and Section headings in this Warrant are inserted for purposes
of convenience only and shall have no substantive effect.
13. LAW GOVERNING.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York.
WITNESS the seal of the Company and the signature of its duly authorized
President.
WORLDCOMM SYSTEMS, INC.
By: /s/ Kenneth A. Miller
-------------------------
Kenneth Miller, President
Attest:
/s/ Thomas DiCicco
- -------------------------
Thomas DiCicco, Secretary
/s/ John Balan
-------------------------
John Balan
<PAGE>
SUBSCRIPTION FORM
(To be Executed by the Registered Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to
purchase _______ shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes payment of the Purchase Price of such
shares in full.
-----------------------------------
Signature
Address
-----------------------------------
-----------------------------------
Dated:
-----------------------------------
<PAGE>
Date: March 22, 1997
Subject: REPLACEMENT WARRANT
At the Board of Directors Meeting held on February 26, 1997 the board requested
the replacement of Warrants granted on 11/21/96 to John Balan for 7,500
shares at $28.00 per share to be replaced by the current valued price per share
of $23.00.
"OLD" WARRANT "NEW" WARRANT
- ------------------------------------- ---------------------------------------
Price Per Number of Price Per Number of
Date of Grant Share Shares Date of Grant Share Shares
- ------------- --------- --------- ------------- --------- ---------
11/26/96 28.00 7,500 2/26/97 $23.00 7,500
The vesting schedule of the "New" Warrants shall be the same as that provided
for in the Warrant Agreement and shall commence on 11/21/96, the date of grant
for the "Old" Warrant.
Your acceptance of the "New" Warrant shall constitute your agreement to the
termination of the "Old" Warrant being replaced and such "Old" Warrant shall
be cancelled without the need of any further action on the part of the company.
GLOBECOMM SYSTEMS INC.
By: /s/ Kenneth A. Miller, President
----------------------------------------
Kenneth A. Miller, President
Corporate Seal
Attest:
Accepted: /s/ John Balan
-----------------------------------
John Balan /s/ Thomas DiCicco
-----------------------------
Date April 5, 1997 Thomas DiCicco, Secretary
---------------------------------------
<PAGE>
EXHIBIT 99.10
COMMON STOCK PURCHASE WARRANT-ROBERT SCHAEFER
WORLDCOMM SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
Worldcomm Systems, Inc. a Delaware corporation (the "Company"), hereby
grants to Robert Schaefer the right to purchase, at any time from November 21,
1996 until 5:00 P.M., New York City time, on November 21, 2006, up to 3,000
fully paid and non-assessable shares of its Common Stock, par value $.01 per
share ("Common Stock").
This Warrant is exercisable at a price of $28.00 per share of Common Stock
issuable hereunder (the "Exercise Price") payable in cash or by certified or
official bank check in New York Clearing House funds, subject to adjustment as
provided in Article 4 hereof. Upon surrender of this Warrant with the annexed
Subscription Form duly executed, together with payment of the Purchase Price (as
hereinafter defined) for the shares of Common Stock purchased, at the Company's
principal executive offices in New York (presently located 375 Oser Avenue,
Hauppauge, NY 11788) the registered holder of the Warrant ("holder") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased.
1. EXERCISE OF WARRANT. The purchase rights represented by this warrant are
exercisable at the option of the holder, in whole or in part (but not as to
fractional shares of the common stock) during any period in which this
warrant may be exercised as set forth above. In the case of the purchase of
less than all the shares of common stock purchasable under this warrant, the
company shall cancel this warrant upon the surrender hereof and shall
execute and deliver a new warrant of like tenor for the balance of the
shares of common stock purchasable hereunder.
2. ISSUANCE OF STOCK CERTIFICATES. The issuance of certificates for shares of
common stock upon the exercise of this warrant shall be made without charge
to the holder including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of articles 2 and 4 hereof) be issued in the name of, or in such
names as may be directed by, the holder; provided, however, that the company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of such certificate in a name
other than that of the holder and the company shall not be required to issue
or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the company the amount of
such tax or shall have established to the satisfaction of the company that
such tax has been paid.
3. RESTRICTION ON TRANSFER OF WARRANT. The holder of this warrant, by his
acceptance hereof, covenants and agrees that this warrant is being acquired
for investment and not with a view to the distribution thereof, and that it
will not be sold, transferred, assigned, hypothecated or otherwise disposed
of except in compliance with the federal securities laws as set forth in an
opinion of counsel.
4. PRICE. The initial purchase price shall be $28.00 per share of common stock.
The adjusted purchase price shall result from time to time from any and all
adjustments of the initial purchase price in accordance with the provisions
of article 4 hereof. The term "purchase price" herein shall mean the initial
purchase price or the adjusted purchase price, as the context may require.
5. ADJUSTMENTS OF PURCHASE PRICE AND NUMBER OF SHARES.
a) SUBDIVISION AND COMBINATION. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the
Purchase Price shall forthwith be proportionately decreased in the case
of subdivision or increased in the case of combination.
<PAGE>
b) ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the Purchase
Price pursuant to the provisions of this Article 4, the number of
shares of Common Stock issuable upon the exercise of each Warrant shall
be adjusted to the nearest full share by multiplying the Purchase Price
in effect immediately prior to such adjustment by the number of shares
of Common Stock issuable upon exercise of the Warrant immediately prior
to such adjustment and dividing the product so obtained by the adjusted
Purchase Price.
c) RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding shares of Common Stock
(other than a change in par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), or in
the case of any consolidation of the Company with, or merger of the
Company into, another corporation (other than a consolidation or merger
in which the Company is the surviving corporation and which does not
result in any reclassification or change of the outstanding shares of
Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or
in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the holder of this Warrant
shall thereafter have the right to purchase the kind and number of
shares of stock and other securities and property which would have been
received upon such reclassification, change, consolidation, merger,
sale or conveyance if such holder had exercised this Warrant
immediately prior to such transaction, at a price equal to the product
of (x) the number of shares issuable upon exercise of this Warrant and
(y) the Purchase Price in effect immediately prior to the record date
for such reclassification, change, consolidation, merger, sale or
conveyance.
6. EXCHANGE AND REPLACEMENT OF WARRANT. This warrant is exchangeable without
expense, upon the surrender hereof by the registered holder at the principal
executive office of the company, for a new warrant of like tenor and date
representing in the aggregate the right to purchase the same number of
shares as are purchasable hereunder in such denominations as shall be
designated by the registered holder hereof at the time of such surrender.
Upon receipt by the company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this warrant, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
warrant, if mutilated, the company will make and deliver a new warrant of
like tenor, in lieu of this warrant.
7. ELIMINATION OF FRACTIONAL INTERESTS. The company shall not be required to
issue stock certificates representing fractions of shares of common stock,
nor shall it be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated.
8. RESERVATION AND LISTING OF SHARES. The company shall at all times reserve
and keep available out of its authorized shares of common stock, solely for
the purpose of issuance upon the exercise of this warrant, such number of
shares of common stock as shall be issuable upon the exercise hereof. The
company covenants and agrees that, upon exercise of this warrant and payment
of the purchase price therefor, all shares of common stock issuable upon
such exercise shall be duly and validly issued, fully paid and
non-assessable, provided that the purchase price per share shall equal or
exceed the par value of the common stock. As long as the warrant shall be
outstanding, the company shall use its best efforts to cause all shares of
common stock issuable upon the exercise of the warrant to be listed (subject
to official notice of issuance) on all securities exchanges on which the
common stock may then be listed.
9. NOTICES TO WARRANT HOLDERS. Nothing contained in this warrant shall be
construed as conferring upon the holder hereof the right to vote or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having
any rights whatsoever as a shareholder of the company. If, however, at any
time prior to the expiration of the warrant and prior to its exercise, any
of the following events shall occur:
a) The Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
<PAGE>
b) The Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
c) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
10. NOTICES.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
(a) If to the registered holder of this Warrant, to the address of such
holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first page of
this Warrant.
11. SUCCESSORS.
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
12. HEADINGS.
The Article and Section headings in this Warrant are inserted for purposes
of convenience only and shall have no substantive effect.
13. LAW GOVERNING.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York.
WITNESS the seal of the Company and the signature of its duly authorized
President.
WORLDCOMM SYSTEMS, INC.
By: /s/ Kenneth A. Miller
-------------------------
Kenneth Miller, President
Attest:
/s/ Thomas DiCicco
- -------------------------
Thomas DiCicco, Secretary
/s/ Robert Schaefer
-------------------------
Robert Schaefer
<PAGE>
SUBSCRIPTION FORM
(To be Executed by the Registered Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to
purchase _______ shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes payment of the Purchase Price of such
shares in full.
-----------------------------------
Signature
Address
-----------------------------------
-----------------------------------
Dated:
-----------------------------------
<PAGE>
Date: March 22, 1997
Subject: REPLACEMENT WARRANT
At the Board of Directors Meeting held on February 26, 1997 the board requested
the replacement of Warrants granted on 11/21/96 to Robert Schaefer for 3,000
shares at $28.00 per share to be replaced by the current valued price per share
of $23.00.
"OLD" WARRANT "NEW" WARRANT
- ------------------------------------- ---------------------------------------
Price Per Number of Price Per Number of
Date of Grant Share Shares Date of Grant Share Shares
- ------------- --------- --------- ------------- --------- ---------
11/26/96 28.00 3,000 2/26/97 $23.00 3,000
The vesting schedule of the "New" Warrants shall be the same as that provided
for in the ISO Agreement and shall commence on 11/21/96, the date of grant
for the "Old" Warrant.
Your acceptance of the "New" Warrant shall constitute your agreement to the
termination of the "Old" Warrant being replaced and such "Old" Warrant shall
be cancelled without the need of any further action on the part of the company.
GLOBECOMM SYSTEMS INC.
By: /s/ Kenneth A. Miller
----------------------------------------
Kenneth A. Miller, President
Corporate Seal
Attest:
Accepted: /s/ Robert Schaefer
-----------------------------------
Robert Schaefer /s/ Thomas DiCicco
-----------------------------
Date March 26, 1997 Thomas DiCicco, Secretary
---------------------------------------
<PAGE>
EXHIBIT 99.11
COMMON STOCK PURCHASE WARRANT-DAPHNE KAMELY
WORLDCOMM SYSTEMS, INC.
COMMON STOCK PURCHASE WARRANT
Worldcomm Systems, Inc. a Delaware corporation (the "Company"), hereby
grants to Daphne Kamely the right to purchase, at any time from November 21,
1996 until 5:00 P.M., New York City time, on November 21, 2006, up to 5,000
fully paid and non-assessable shares of its Common Stock, par value $.01 per
share ("Common Stock").
This Warrant is exercisable at a price of $28.00 per share of Common Stock
issuable hereunder (the "Exercise Price") payable in cash or by certified or
official bank check in New York Clearing House funds, subject to adjustment as
provided in Article 4 hereof. Upon surrender of this Warrant with the annexed
Subscription Form duly executed, together with payment of the Purchase Price (as
hereinafter defined) for the shares of Common Stock purchased, at the Company's
principal executive offices in New York (presently located 375 Oser Avenue,
Hauppauge, NY 11788) the registered holder of the Warrant ("holder") shall be
entitled to receive a certificate or certificates for the shares of Common Stock
so purchased.
1. EXERCISE OF WARRANT. The purchase rights represented by this warrant are
exercisable at the option of the holder, in whole or in part (but not as to
fractional shares of the common stock) during any period in which this
warrant may be exercised as set forth above. In the case of the purchase of
less than all the shares of common stock purchasable under this warrant, the
company shall cancel this warrant upon the surrender hereof and shall
execute and deliver a new warrant of like tenor for the balance of the
shares of common stock purchasable hereunder.
2. ISSUANCE OF STOCK CERTIFICATES. The issuance of certificates for shares of
common stock upon the exercise of this warrant shall be made without charge
to the holder including, without limitation, any tax which may be payable in
respect of the issuance thereof, and such certificates shall (subject to the
provisions of articles 2 and 4 hereof) be issued in the name of, or in such
names as may be directed by, the holder; provided, however, that the company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of such certificate in a name
other than that of the holder and the company shall not be required to issue
or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the company the amount of
such tax or shall have established to the satisfaction of the company that
such tax has been paid.
3. RESTRICTION ON TRANSFER OF WARRANT. The holder of this warrant, by his
acceptance hereof, covenants and agrees that this warrant is being acquired
for investment and not with a view to the distribution thereof, and that it
will not be sold, transferred, assigned, hypothecated or otherwise disposed
of except in compliance with the federal securities laws as set forth in an
opinion of counsel.
4. PRICE. The initial purchase price shall be $28.00 per share of common stock.
The adjusted purchase price shall result from time to time from any and all
adjustments of the initial purchase price in accordance with the provisions
of article 4 hereof. The term "purchase price" herein shall mean the initial
purchase price or the adjusted purchase price, as the context may require.
5. ADJUSTMENTS OF PURCHASE PRICE AND NUMBER OF SHARES.
a) SUBDIVISION AND COMBINATION. In case the Company shall at any time
subdivide or combine the outstanding shares of Common Stock, the
Purchase Price shall forthwith be proportionately decreased in the case
of subdivision or increased in the case of combination.
<PAGE>
b) ADJUSTMENT IN NUMBER OF SHARES. Upon each adjustment of the Purchase
Price pursuant to the provisions of this Article 4, the number of shares
of Common Stock issuable upon the exercise of each Warrant shall be
adjusted to the nearest full share by multiplying the Purchase Price in
effect immediately prior to such adjustment by the number of shares of
Common Stock issuable upon exercise of the Warrant immediately prior to
such adjustment and dividing the product so obtained by the adjusted
Purchase Price.
c) RECLASSIFICATION, CONSOLIDATION, MERGER, ETC. In case of any
reclassification or change of the outstanding shares of Common Stock
(other than a change in par value to no par value, or from no par value
to par value, or as a result of a subdivision or combination), or in
the case of any consolidation of the Company with, or merger of the
Company into, another corporation (other than a consolidation or merger
in which the Company is the surviving corporation and which does not
result in any reclassification or change of the outstanding shares of
Common Stock, except a change as a result of a subdivision or
combination of such shares or a change in par value, as aforesaid), or
in the case of a sale or conveyance to another corporation of the
property of the Company as an entirety, the holder of this Warrant
shall thereafter have the right to purchase the kind and number of
shares of stock and other securities and property which would have been
received upon such reclassification, change, consolidation, merger,
sale or conveyance if such holder had exercised this Warrant
immediately prior to such transaction, at a price equal to the product
of (x) the number of shares issuable upon exercise of this Warrant and
(y) the Purchase Price in effect immediately prior to the record date
for such reclassification, change, consolidation, merger, sale or
conveyance.
6. EXCHANGE AND REPLACEMENT OF WARRANT. This warrant is exchangeable without
expense, upon the surrender hereof by the registered holder at the principal
executive office of the company, for a new warrant of like tenor and date
representing in the aggregate the right to purchase the same number of
shares as are purchasable hereunder in such denominations as shall be
designated by the registered holder hereof at the time of such surrender.
Upon receipt by the company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this warrant, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this
warrant, if mutilated, the company will make and deliver a new warrant of
like tenor, in lieu of this warrant.
7. ELIMINATION OF FRACTIONAL INTERESTS. The company shall not be required to
issue stock certificates representing fractions of shares of common stock,
nor shall it be required to issue scrip or pay cash in lieu of fractional
interests, it being the intent of the parties that all fractional interests
shall be eliminated.
8. RESERVATION AND LISTING OF SHARES. The company shall at all times reserve
and keep available out of its authorized shares of common stock, solely for
the purpose of issuance upon the exercise of this warrant, such number of
shares of common stock as shall be issuable upon the exercise hereof. The
company covenants and agrees that, upon exercise of this warrant and payment
of the purchase price therefor, all shares of common stock issuable upon
such exercise shall be duly and validly issued, fully paid and
non-assessable, provided that the purchase price per share shall equal or
exceed the par value of the common stock. As long as the warrant shall be
outstanding, the company shall use its best efforts to cause all shares of
common stock issuable upon the exercise of the warrant to be listed (subject
to official notice of issuance) on all securities exchanges on which the
common stock may then be listed.
9. NOTICES TO WARRANT HOLDERS. Nothing contained in this warrant shall be
construed as conferring upon the holder hereof the right to vote or to
consent or to receive notice as a shareholder in respect of any meetings of
shareholders for the election of directors or any other matter, or as having
any rights whatsoever as a shareholder of the company. If, however, at any
time prior to the expiration of the warrant and prior to its exercise, any
of the following events shall occur:
a) The Company shall take a record of the holders of its shares of Common
Stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend or
distribution on the books of the Company; or
<PAGE>
b) The Company shall offer to all the holders of its Common Stock any
additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
c) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety
shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least fifteen (15) days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
10. NOTICES.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
(a) If to the registered holder of this Warrant, to the address of such
holder as shown on the books of the Company; or
(b) If to the Company, to the address set forth on the first page of
this Warrant.
11. SUCCESSORS.
All the covenants, agreements, representations and warranties contained in
this Warrant shall bind the parties hereto and their respective heirs,
executors, administrators, distributees, successors and assigns.
12. HEADINGS.
The Article and Section headings in this Warrant are inserted for purposes
of convenience only and shall have no substantive effect.
13. LAW GOVERNING.
This Warrant is delivered in the State of New York and shall be construed
and enforced in accordance with, and governed by, the laws of the State of New
York.
WITNESS the seal of the Company and the signature of its duly authorized
President.
WORLDCOMM SYSTEMS, INC.
By: /s/ Kenneth A. Miller
-------------------------
Kenneth Miller, President
Attest:
/s/ Thomas DiCicco
- -------------------------
Thomas DiCicco, Secretary
/s/ Daphne Kamely
-------------------------
Daphne Kamely
<PAGE>
SUBSCRIPTION FORM
(To be Executed by the Registered Holder in order to Exercise the Warrant)
The undersigned hereby irrevocably elects to exercise the right to
purchase _______ shares of Common Stock covered by this Warrant according to the
conditions hereof and herewith makes payment of the Purchase Price of such
shares in full.
-----------------------------------
Signature
Address
-----------------------------------
-----------------------------------
Dated:
-----------------------------------
<PAGE>
Date: March 22, 1997
Subject: REPLACEMENT WARRANT
At the Board of Directors Meeting held on February 26, 1997 the board requested
the replacement of Warrants granted on 11/21/96 to Daphne Kamely for 5,000
shares at $28.00 per share to be replaced by the current valued price per share
of $23.00.
"OLD" WARRANT "NEW" WARRANT
- ------------------------------------- ---------------------------------------
Price Per Number of Price Per Number of
Date of Grant Share Shares Date of Grant Share Shares
- ------------- --------- --------- ------------- --------- ---------
11/26/96 28.00 5,000 2/26/97 $23.00 5,000
The vesting schedule of the "New" Warrants shall be the same as that provided
for in the ISO Agreement and shall commence on 11/21/96, the date of grant
for the "Old" Warrant.
Your acceptance of the "New" Warrant shall constitute your agreement to the
termination of the "Old" Warrant being replaced and such "Old" Warrant shall
be cancelled without the need of any further action on the part of the company.
GLOBECOMM SYSTEMS INC.
By: /s/ Kenneth A. Miller
----------------------------------------
Kenneth A. Miller, President
Corporate Seal
Attest:
Accepted: /s/ Daphne Kamely
-----------------------------------
Daphne Kamely /s/ Thomas DiCicco
-----------------------------
Date March 26, 1997 Thomas DiCicco, Secretary
---------------------------------------
<PAGE>
EXHIBIT 99.12
WRITTEN COMPENSATION AGREEMENT-STEPHEN JUDLOWE
COMPENSATION AGREEMENT
Agreement made as of the 21 day of November, 1996 by and between
Worldcomm Systems Inc., a Delaware corporation (the "Corporation"), and Stephen
Judlowe ("Holder").
W I T N E S S E T H
WHEREAS, in consideration for services performed by Holder, the
Corporation granted Holder a common stock purchase warrant on November 21, 1996,
to purchase 5,000 shares of the Corporation's Common Stock (the "Warrant") upon
the terms and conditions set forth in the documentation evidencing such Warrant.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. The Corporation and Holder acknowledge and agree that the Warrant is
granted solely as compensation for services rendered the Corporation by Holder
and not for any capital-raising purposes or in connection with any
capital-raising activities.
2. This agreement is intended solely to memorialize the agreement and
understanding which exists between Holder and the Corporation concerning the
grant of the Warrant. Nothing herein or in the documentation evidencing the
Warrant is intended to provide Holder with the right to remain in the
Corporation's service for any specific period, and Holder's services may be
terminated at any time by the Corporation, for any reason, with or without
cause.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
WORLDCOMM SYSTEMS INC.
BY: /S/ KENNETH A. MILLER
----------------------------
KENNETH A. MILLER, PRESIDENT
HOLDER
/s/ Stephen Judlowe
--------------------------------
Stephen Judlowe
<PAGE>
EXHIBIT 99.13
WRITTEN COMPENSATION AGREEMENT - JOHN BALAN
COMPENSATION AGREEMENT
Agreement made as of the 21 day of November, 1996 by and between
Worldcomm Systems Inc., a Delaware corporation (the "Corporation"), and John
Balan ("Holder").
W I T N E S S E T H
WHEREAS, in consideration for services performed by Holder, the
Corporation granted Holder a common stock purchase warrant on November 21, 1996,
to purchase 7,500 shares of the Corporation's Common Stock (the "Warrant") upon
the terms and conditions set forth in the documentation evidencing such Warrant.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. The Corporation and Holder acknowledge and agree that the Warrant is
granted solely as compensation for services rendered the Corporation by Holder
and not for any capital-raising purposes or in connection with any
capital-raising activities.
2. This agreement is intended solely to memorialize the agreement and
understanding which exists between Holder and the Corporation concerning the
grant of the Warrant. Nothing herein or in the documentation evidencing the
Warrant is intended to provide Holder with the right to remain in the
Corporation's service for any specific period, and Holder's services may be
terminated at any time by the Corporation, for any reason, with or without
cause.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
WORLDCOMM SYSTEMS INC.
BY: /S/ KENNETH A. MILLER
----------------------------
KENNETH A. MILLER, PRESIDENT
HOLDER
/s/ John Balan
--------------------------------
John Balan
<PAGE>
EXHIBIT 99.14
WRITTEN COMPENSATION AGREEMENT-ROBERT SCHAEFER
COMPENSATION AGREEMENT
Agreement made as of the 21 day of November, 1996 by and between
Worldcomm Systems Inc., a Delaware corporation (the "Corporation"), and Robert
Schaefer ("Holder").
W I T N E S S E T H
WHEREAS, in consideration for services performed by Holder, the
Corporation granted Holder a common stock purchase warrant on November 21,1996,
to purchase 3,000 shares of the Corporation's Common Stock (the "Warrant") upon
the terms and conditions set forth in the documentation evidencing such Warrant.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. The Corporation and Holder acknowledge and agree that the Warrant is
granted solely as compensation for services rendered the Corporation by Holder
and not for any capital-raising purposes or in connection with any
capital-raising activities.
2. This agreement is intended solely to memorialize the agreement and
understanding which exists between Holder and the Corporation concerning the
grant of the Warrant. Nothing herein or in the documentation evidencing the
Warrant is intended to provide Holder with the right to remain in the
Corporation's service for any specific period, and Holder's services may be
terminated at any time by the Corporation, for any reason, with or without
cause.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
WORLDCOMM SYSTEMS INC.
BY: /S/ KENNETH A. MILLER
----------------------------
KENNETH A. MILLER, PRESIDENT
HOLDER
/s/ Robert Schaefer
--------------------------------
Robert Schaefer
<PAGE>
EXHIBIT 99.15
WRITTEN COMPENSATION AGREEMENT-DAPHNE KAMELY
COMPENSATION AGREEMENT
Agreement made as of the 21 day of November, 1996 by and between
Worldcomm Systems Inc., a Delaware corporation (the "Corporation"), and Daphne
Kamely ("Holder").
W I T N E S S E T H
WHEREAS, in consideration for services performed by Holder, the
Corporation granted Holder a common stock purchase warrant on November 21, 1996,
to purchase 5,000 shares of the Corporation's Common Stock (the "Warrant") upon
the terms and conditions set forth in the documentation evidencing such Warrant.
NOW, THEREFORE, in consideration of the above premises, the parties
hereto agree as follows:
1. The Corporation and Holder acknowledge and agree that the Warrant is
granted solely as compensation for services rendered the Corporation by Holder
and not for any capital-raising purposes or in connection with any
capital-raising activities.
2. This agreement is intended solely to memorialize the agreement and
understanding which exists between Holder and the Corporation concerning the
grant of the Warrant. Nothing herein or in the documentation evidencing the
Warrant is intended to provide Holder with the right to remain in the
Corporation's service for any specific period, and Holder's services may be
terminated at any time by the Corporation, for any reason, with or without
cause.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
WORLDCOMM SYSTEMS INC.
BY: /S/ KENNETH A. MILLER
----------------------------
KENNETH A. MILLER, PRESIDENT
HOLDER
/s/ Daphne Kamely
--------------------------------
Daphne Kamely
