Exhibit 1
STOCK OPTION AGREEMENT
(Jetborne International, Inc. / Horsham Enterprises, Ltd.)
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as
of this ____ day of March 1998 and between JETBORNE INTERNATIONAL INC a Delaware
corporation (the "Company") and HORSHAM ENTERPRISES LTD, a British Virgin
Islands corporation (the "Purchaser") with reference to the following facts
and circumstances:
A. The Company, which is publicly-held, has authorised capital stock
comprised only of __________ shares of $.01 par value Common Stock, of which
__________ shares are issued and outstanding as of the date of this Agreement.
B. Upon and subject to the terms and conditions set forth herein, the
Company wishes to grant to the Purchaser, and the Purchaser wishes to acquire
from the Company, an option to acquire from the Company __________ shares of the
Company's $.01 par value Common Stock (the "Shares") which Shares, once issued
to the Purchaser, would constitute thirty (30%) of the issued and outstanding
capital stock of the Company on a fully-diluted basis.
NOW THEREFORE, in consideration of the premises and respective
representations, warranties, covenants, agreements and indemnities contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties hereto hereby
agrees as follows:
1. GRANT OF OPTION, OPTION FEE. Subject to the terms and conditions
hereof, the Company hereby grants to Purchaser an option (the "Option") to
purchase the Shares for an aggregate purchase price of Nine Hundred and Ninety-
nine Thousand Dollars ($999,000) (the "Purchase Price"). In consideration of
the grant of the Option, the Purchaser has concurrently with the execution of
this Agreement paid to the Company the sum of One Thousand Dollars ($1,000)
(the "Option Fee"), and the Company hereby acknowledges receipt of the Option
Fee. It is agreed and understood that nothing in this Agreement shall obligate
the Purchaser to purchase the Shares, and the Purchaser may elect whether or
not to exercise the Option in the Purchaser's sole and absolute discretion.
2. EXERCISE PERIOD. The Option may be exercised at any time during the
period commencing on the date hereof and ending 90 days after the date
hereof (the "Exercise Period"). On the close of business on the last day of the
Exercise Period the Option, if not theretofore exercised, shall become null and
void. The date on which the Option is exercised is referred to herein as the
"Exercise Date".
3. METHOD OF EXERCISE; FURTHER ASSURANCES. The Option shall be exercisable
upon written notice to the Company accompanied by payment by check or
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wire transfer of the Purchase Price. Upon exercise of the Option, the Company
and the Purchaser shall each execute and deliver to the other any documents
reasonably requested by the other in order more fully to effectuate the subject
transaction or to comply with any applicable securities laws or exemption
therefrom.
4. COMPANY'S REPRESENTATIONS AND WARRANTIES. Except as disclosed in the
schedules (if any) attached hereto, as a material inducement to the Purchaser to
execute this Agreement and to acquire the Option pursuant hereto, the Company
represents and warrants to the Purchaser, as of the date hereof, and as of the
Exercise Date, as follows:
(a) Organization and Good Standing; Compliance. The Company is duly
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organised, validly existing and in good standing under the laws of the State of
Delaware with full power and authority to own or lease and operate its
properties and assets and to carry on any business. The Company has all
requisite corporate power to enter into this Agreement and to sell the Shares
and to carry out and perform its obligations under the terms of this Agreement.
Without limiting the generality of the preceding sentence, the Company has
received any and all consents and approvals required under applicable law to be
obtained with respect to the execution of this Agreement and the sale and
issuance of the Shares to the Purchaser pursuant hereto.
(b) Capital Stock. The Company has only one class of capital stock, ie
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Common Stock, $.01 par value per share, of which there are __________ shares
authorised, and __________ shares issued and outstanding as of the date of this
Agreement. On the Exercise Date, upon exercise of the Option and the sale of
the Shares to the Purchaser pursuant hereto: (i) the Shares, and all other
issued and outstanding shares of capital stock of the Company, will have been
duly authorised and validly issued, fully paid and non-assessable, (ii) the
Shares will constitute at least thirty percent (30%) of the issued and
outstanding capital stock of the Company on a fully-diluted basis.
(c) Liens And Encumbrances. There will be no liens, encumbrances, pledges
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or other claims of any nature against the Shares if and when issued to the
Purchaser.
(d) Securities Law and Warrants and Options.
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(i) All of the outstanding Common Stock of the Company has been and
will be offered and sold in accordance with applicable federal and state
securities law or applicable exceptions thereunder and there are no
preemptive rights in respect thereof.
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(ii) Except as may be disclosed in the schedules (if any) attached
hereto, there are no outstanding rights, options, warrants, rights, calls,
puts, commitments, plans or other agreements of any nature or character
providing for the purchase or issuance of any other unissued shares of the
Common Stock of the Company.
(e) Binding Agreement. This Agreement constitutes a valid and binding
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obligation of the Company, enforceable in accordance with its terms.
(f) Chapter 11 Proceedings. The Chapter 11 proceedings initiated in
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respect of the Company (Case No. 91-16169-BKC.AJC. U.S. Bankruptcy Court
Southern District of Florida) have been fully and unconditionally discharged and
concluded.
5. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Except as disclosed in the
schedules (if any) attached hereto, as a material inducement to the Company to
execute this Agreement, the Purchaser hereby represents and warrants to the
Company, as of the date hereof, and as of the Exercise Date, that:
Organisation and Good Standing Compliance. The Purchaser is duly organised,
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validly existing and in good standing under the laws of the British Virgin
Islands with full power and authority to own or lease and operate its
properties and assets and to carry on any business as it is now being
conducted, and is qualified to do business in every jurisdiction where the
failure to so qualify would have a material adverse effect on the business of
the Purchaser or its properties. The Purchaser has full right, power and
authority to enter into this Agreement and to perform its obligations as
provided herein.
6. COVENANTS OF COMPANY. During the period commencing on the date hereof
and ending upon termination of the Exercise Period (or, if earlier, the Exercise
Date), the Company covenants with the Purchaser as follows:
(a) Purchaser's Due Diligence; Access to Information. In order to
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facilitate the Purchaser's due diligence review of the Company, the Company will
permit the Purchaser and its representatives to have access to the Company's
facilities, and the Company shall furnish the Purchaser with any information
reasonably requested by the Purchaser, at all reasonable times and in a manner
so as not to interfere with the normal business operations of the Company.
Neither such access, inspection or furnishing of information to the Purchaser
and its representatives, nor any investigation by the Purchaser and its
representatives, shall in any way diminish or otherwise affect the Purchaser's
rights to rely on any representation or warranty made by the Company hereunder.
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(b) Notice of Developments. The Company shall give prompt written notice
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to the Purchaser of any material adverse development causing a breach of any of
the Company's representations and warranties herein. No such notice shall,
however, be deemed to amend or supplement this Agreement (including the
representations and warranties contained herein and any schedules hereto) or to
prevent or cure any misrepresentation, breach of warranty or breach of covenant.
7. MUTUAL HOLD HARMLESS AND INDEMNIFICATION.
(a) By Company. The Company agrees to defend, indemnify and hold harmless
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the Purchaser from and against any loss, claim, damage, liability or expense
(including reasonable attorneys fees):
(i) incurred or sustained by the Purchaser on account of any and all
liabilities of the Company;
(ii) incurred or sustained by the Purchaser on account of any
misrepresentation or breach of any representation, warranty, covenant or
agreement of the Company contained in this Agreement or in any schedule,
exhibit or other document delivered pursuant hereto; or
(iii) incurred or sustained by the Purchaser on account of any
liability of the Company for a finder's fee, brokerage commission or other
like payment.
If any claim is asserted against the Purchaser for which indemnification
may be sought under the provisions of this Section 7, the Purchaser shall
promptly notify the Company that the Company may participate in the negotiation
and settlement of any such claim at the Company's expense and permitting the
Company to join in the defence of any legal action arising therefrom at the
Company's expense. The Company shall not be liable to the Purchaser under this
Section for losses aggregating less than $1,000.00 (US) or for losses with
respect to any claim for which the Purchaser shall have failed to notify the
Company in writing within eighteen (18) months from the Exercise Date.
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8. MISCELLANEOUS.
(a) Entire Agreement; Successors and Assigns. This Agreement constitutes
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the entire agreement between the parties relative to the subject matter hereof.
Any previous agreement or document is superseded by this Agreement. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective executors, administrators, heirs, successors and assigns of
the parties.
(b) Construction. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware of the United States of
America.
(c) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(d) Attorneys' Fees. In the event any legal action is brought to enforce
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the terms of this Agreement, the prevailing party shall be entitled to
reimbursement of its legal fees, including costs of enforcement, from the other
party or parties, as the case may be.
(e) Notices. Any notice required or permitted hereunder shall be given in
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writing and shall be deemed effectively given upon personal delivery, twenty-
four (24) hours after transmission by facsimile, or five (5) days after deposit
in the United States mail, by registered or certified mail, addressed to a party
at its address shown on the signature page hereof, or at such other address as
such party may designate by ten (10) day's advance written notice to the other
party.
(f) Survival of Warranties. The representations and warranties of the
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parties contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Exercise Date.
(g) Brokers. The parties severally represent and jointly agree that no
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brokers have been involved in the purchase and sale of Shares contemplated by
this Agreement.
(h) Amendment of Agreement. Any provision of this Agreement may be amended
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by a written instrument signed by each of the parties.
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(i) Remedies; Injunctive Relief. In the event of any breach of this
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Agreement, the parties shall be entitled to exercise any and all rights and
remedies available to them under applicable documents and law (including all
equitable remedies), all of which are cumulative. Without limiting the
generality of the foregoing, the parties acknowledge and agree that, in the
event the Company breaches its obligation hereunder to sell the Shares to the
Purchaser, damages would be inadequate and the Purchaser shall be entitled to
injunctive relief, including, without limitation, specific performance of the
Company's obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXECUTED by JETBORNE )
INTERNATIONAL INC by: )
________________________________
Name:
Title:
Address:
Fax No:
EXECUTED by HORSHAM )
ENTERPRISES LIMITED by: )
________________________________
Name:
Title:
Address:
Fax No:
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