EXHIBIT 10.12
-------------
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), is made and entered
into as of the 5th day of March, 1997 by and between SBA COMMUNICATIONS
CORPORATION, a Florida corporation (the "Company"), and ROBERT M. GROBSTEIN,
(the "Optionee");
W I T N E S S E T H:
WHEREAS, the Optionee has agreed to terminate all of his existing
employment and incentive agreements and stock options with SBA, Inc., a Florida
corporation, and SBA Leasing, Inc., a Florida corporation, both wholly-owned
subsidiaries of the Company, and to accept employment with the Company pursuant
to the terms and conditions of that certain Employment Agreement, dated as of
January 1, 1997, between the Company and the Optionee (the "Employee
Agreement"); and
WHEREAS, in exchange for Optionee terminating his rights with respect
to options entitling him to purchase shares of capital stock in SBA, Inc. and
SBA Leasing, Inc., the Company desires to grant to the Optionee, in addition to
88,236 shares of the Company's Class A Common Stock, $.01 par value per share
(the "Class A Common Stock"), certain options to purchase additional Class A
Common Stock, all as more particularly set forth herein;
NOW, THEREFORE, in consideration of the mutual premises and covenants,
and other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set
---------------
forth in this Agreement, the Company hereby grants to the Optionee options (the
"Options") to purchase up to three hundred eighty six thousand seven hundred
sixty four (386,764) shares of Class A Common Stock at an exercise price of $.05
per share.
2. Time of Exercise. The options are immediately exercisable and will
----------------
expire and be of no further force or effect if unexercised by December 31, 2006.
3. No Transferability. The options may not be sold, conveyed, pledged,
------------------
hypothecated or otherwise transferred in any manner by the Optionee without the
prior written consent of the Company; provided, however, that the options may be
transferred pursuant to will or the laws of intestacy following Optionee's life
or, during Optionee's life, to a person or entity who would be deemed an
Eligible Class B Stockholder as such term is defined in the Company's Articles
of Incorporation and substituting in such definition as appropriate Optionee for
Steven M. Bernstein. No such sale, transfer or hypothecation may occur in any
event except in compliance with federal and state securities laws, as determined
to the satisfaction of the Company and its counsel in their sole discretion.
4. Partial Exercise. Exercise of the options up to the extent stated
-----------------
may be made in part at any time and from time to time within the limits of
Section 2 hereof, except that the options may
not be exercised for a fraction of a share. Any fractional share with respect to
which an installment of the options cannot be exercised because of the
limitation contained in the preceding sentence shall remain subject to the
options and shall be available for later purchase by the Optionee in accordance
with the terms hereof.
5. Payment of Price. The option price of each option is payable in
-----------------
lawful currency of the United States and must be paid in cash or by certified or
cashier's check, or any combination of the foregoing, equal in amount to the
option price.
6. Restricted Shares; Purchase for Investment. The Optionee agrees that
------------------------------------------
(i) his purchase of shares of Common Stock of the Company (the "Shares") upon an
exercise of an option hereunder will not be made with a view toward the
"distribution" of such Shares, as defined in the Securities Act of 1933, as
amended (the "1933 Act"); (ii) such Shares may not be transferred or
hypothecated unless, in the opinion of counsel to the Company, such transfer or
hypothecation would be in compliance with the registration provisions of the
1933 Act or pursuant to an exemption therefrom; and (iii) that the certificate
for the Shares so purchased may be inscribed with a legend to ensure compliance
with the 1933 Act. Optionee understands that the Shares will not be registered
under the 1933 Act, or under the laws of any jurisdiction. Optionee hereby
represents and warrants that Optionee, or through his advisers, is sophisticated
and experienced in financial business and investment matters and, as a result,
Optionee is in a position to evaluate the merits and risks of an investment in
the Company.
7. Method of Exercising Option. Subject to the terms and conditions of
---------------------------
this Agreement, the options may be exercised by providing the Company at the
Consummation Time with payment of the full option price of such Shares, and the
Company shall deliver a certificate or certificates representing such Shares as
soon as practicable after such payment shall be received. The certificate or
certificates for the Shares as to which an option shall have been so exercised
shall be registered in the name of the Optionee or permitted assignee and shall
be delivered to the Optionee or permitted assignee. All Shares that shall be
purchased upon the exercise of an option as provided herein shall be fully paid
and non-assessable. The Optionee shall not have the rights of a shareholder with
respect to the Shares covered by the options hereunder until the date of
issuance of a stock certificate to him for such Shares. No adjustment shall be
made for dividends or similar rights for which the record date is before the
date such stock certificate is issued.
8. No Obligation to Exercise Option. The grant and acceptance of the
---------------------------------
options hereunder imposes no obligation on the Optionee to exercise the options.
9. Amendments. The provisions of this Agreement may not be amended,
----------
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
2
10. Assignments. Except as otherwise provided herein, no party shall
-----------
assign his or its rights and/or obligations hereunder without the prior written
consent of each other party to this Agreement.
11. Further Assurances. The parties hereby agree from time to time to
-------------------
execute and deliver such further and other transfers, assignments and documents
and do all matters and things which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
12. Binding Effect. All of the terms and provisions of this Agreement,
--------------
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective legal representatives,
successors and permitted assigns.
13. Notices. All notices, requests, consents and other communications
-------
required or permitted under this Agreement shall be in writing (including telex
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
If to Optionee:
Robert M. Grobstein
18949 Treble Lane
Boca Raton, Florida 33498
Telephone: (561) 852-8279
If to the Company:
SBA Communications Corporation
Attention: Steven E. Bernstein, President
6001 Broken Sound Parkway, Suite 404
Boca Raton, Florida 33487
Telephone: (561) 995-7670
Telefax: (561) 995-7626
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by electronic transmission; and (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
3
14. Headings. The headings contained in this Agreement are for
--------
convenience of reference only, and shall not limit or otherwise affect in any
way the meaning or interpretation of this Agreement.
15. Severability. If any part of this Agreement or any other Agreement
------------
entered into pursuant hereto is contrary to, prohibited by or deemed invalid
under applicable law or regulation, such provision shall be inapplicable and
deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
16. Survival. All covenants, agreements, representations and warranties
--------
made herein or otherwise made in writing by any party pursuant hereto shall
survive the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
17. Waivers. The failure or delay of any party at any time to require
-------
performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder, and any waiver by
any party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right, power or remedy
under this Agreement. No notice to or demand on any party in any case shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
18. Jurisdiction and Venue. The parties acknowledge that a substantial
----------------------
portion of negotiations, anticipated performance and execution of this Agreement
occurred or shall occur in Palm Beach County, Florida, and that, therefore,
without limiting the jurisdiction or venue of any other federal or state courts,
each of the parties irrevocably and unconditionally (i) agrees that any suit,
action or legal proceeding arising out of or relating to this Agreement may be
brought in the courts of record of the State of Florida in Palm Beach County or
the court of the United States, Southern District of Florida; (ii) consents to
the jurisdiction of each such court in any suit, action or proceeding; (iii)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts; and (iv) agrees that service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws or
court rules in said state.
19. Enforcement Costs. If any civil action, arbitration or other legal
-----------------
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes,
4
costs and expenses incident to arbitration, appellate, bankruptcy and
post-judgment proceedings), incurred in that civil action, arbitration or legal
proceeding, in addition to any other relief to which such party or parties may
be entitled. Attorneys' fees shall include, without limitation, paralegal fees,
investigative fees, administrative costs, sales and use taxes and all other
charges billed by the attorney to the prevailing party.
20. Remedies Cumulative. No remedy herein conferred upon any party is
--------------------
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
21. Governing Law. This Agreement and all transactions contemplated by
-------------
this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida.
22. Entire Agreement. This Agreement represents the entire
------------------
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SBA COMMUNICATIONS CORPORATION
/s/ Steven E. Bernstein
By:__________________________________
Steven E. Bernstein, President
/s/ Robert M. Grobstein
----------------------------------
Robert M. Grobstein
5