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Exhibit 10.5
THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR UNDER APPLICABLE STATE SECURITIES LAWS. EXCEPT AS
PROVIDED HEREIN, THIS OPTION MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED EXCEPT IN COMPLIANCE WITH APPLICABLE LAWS AND THE OTHER
RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
DURASWITCH INDUSTRIES, INC.
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OPTION TO PURCHASE COMMON STOCK
APRIL 20, 2000
1. GRANT. DuraSwitch Industries, Inc, a Nevada
corporation (hereinafter, "COMPANY"), for value received hereby grants to Delphi
Automotive Systems Corporation, a Delaware corporation ("HOLDER") an irrevocable
option ("OPTION") to purchase 1,651,846 shares of Company's authorized but
unissued $.001 par value common stock (the "COMMON STOCK"), subject to
adjustment as provided below. (The shares of Common Stock issuable under this
Option are referred to as the "OPTION SHARES".)
2. TERM. This Option may be exercised at any time before
11:59 p.m. on June 30, 2000 (the "EXERCISE PERIOD"), subject to subparagraph
8(d) below.
3. EXERCISE PRICE. The exercise price for each Option
Share described in paragraph 1 (the "ORIGINAL EXERCISE PRICE") is $7.00 per
share, subject to adjustment as provided below.
4. RESERVATION AND AUTHORIZATION OF COMMON STOCK.
Company agrees (a) that all Option Shares will, upon issuance, be validly
issued, fully paid and non-assessable and free of all transfer taxes, liens and
charges, (b) that during the Exercise Period, Company will at all times have
authorized and reserved for the purpose of issue or transfer upon exercise of
this Option, sufficient shares of Common Stock to provide for the exercise of
this Option and (c) that Company will take all such actions as may be necessary
to ensure that the Option Shares may be issued without violation of any
applicable law or regulation, or any requirement of any securities exchange upon
which any capital stock of Company may be listed.
5. EXERCISE PROCEDURE. Holder may exercise this Option,
in whole but not in part, by presenting it and tendering the aggregate Exercise
Price for the Option Shares in legal tender or by certified check or wire
transfer to Company, at Company's principal executive offices, along with a duly
exercised written subscription substantially in the form of Exhibit 5. (The date
on which this Option is thus surrendered is referred to as the "EXERCISE DATE".)
Company shall promptly, but in no event later than ten (10) days after the
Exercise Date, at its expense (including the payment of issuance taxes), issue
and deliver to Holder certificate(s) representing the number of shares of Common
Stock so purchased. Such shares of Common Stock shall be deemed issued to Holder
for all purposes as of the opening of business on the Exercise Date
notwithstanding any delay in the actual issuance.
6. RESALE OF OPTION OR SHARES. Neither this Option nor
the Option Shares have been registered under the Securities Act or under the
securities laws of any state. Neither this Option nor such shares when issued
may be sold or transferred, in the absence of (i) an effective registration
statement for this Option or such shares, as the case may be, under the
Securities Act and such registration or qualification as may be necessary under
the securities laws of any state, or (ii) if requested by Company, an opinion of
counsel reasonably satisfactory to Company (who may be inside counsel to Holder)
that such registration or qualification is not required. Company shall cause any
certificate evidencing securities issued upon exercise of this Option before
said registration and qualification of such securities to bear an appropriate
legend describing the foregoing transfer restrictions. Notwithstanding any other
provision of this Option, Holder may transfer this Option (in whole but not in
part) and any
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securities issuable upon exercise of this Option to any person or entity which
is an affiliate or subsidiary of Holder.
7. TRANSFER. This Option shall be registered on the
books of Company which shall be kept at its principal office for that purpose,
and, subject to paragraph 6, shall be transferable in whole but not in part but
only on such books by Holder in person or by duly authorized attorney with
written notice substantially in the form of Exhibit 7 hereof. Company will at no
time close its transfer books against the transfer of this Option or of any
shares of Common Stock or other securities issuable upon the exercise of this
Option in any manner which interferes with the timely exercise of this Option.
8. ADJUSTMENTS UPON CERTAIN EVENTS.
(a) STOCK SPLIT OR DIVIDEND; ADJUSTMENT TO EXERCISE PRICE
AND NUMBER OF OPTION SHARES. If the shares of Common Stock at any time
outstanding shall be subdivided into a greater or combined into a
lesser number of shares of Common Stock, by stock-split, reverse split
or otherwise, or if shares of Common Stock shall be issued as a stock
dividend, the Exercise Price shall be increased or decreased, as
applicable, to an amount which shall bear the same relation to the
Exercise Price in effect immediately before such subdivision,
combination or stock dividend as the total number of shares of Common
Stock outstanding immediately after such subdivision, combination or
stock dividend shall bear to the total number of shares of Common Stock
outstanding immediately before such subdivision, combination or stock
dividend; likewise, in case of any such subdivision, combination or
stock dividend, the number of Option Shares shall be increased or
decreased as applicable, to the number which shall bear the same
relation to the number of Option Shares obtainable hereunder
immediately before such event, as the total number of shares of Common
Stock outstanding immediately after such event shall bear to the total
number of shares of Common Stock outstanding immediately before such
event. An adjustment made pursuant to this subparagraph 8(a) shall
become effective immediately upon the effective date of such
subdivision, combination or stock dividend retroactive to the record
date, if any, for such subdivision, combination or stock dividend.
(b) MERGER, RECLASSIFICATION, ETC. In case of any capital
reorganization, or any reclassification of the Common Stock, or in case
of any consolidation of Company with or the merger of Company into any
other corporation or other entity (other than a consolidation or merger
in which Company is the continuing corporation) or in case of the sale
of all or substantially all of the property and assets of Company to
any other corporation or other entity, this Option shall, effective
upon such reorganization, reclassification, consolidation, merger or
sale be exercisable upon the terms and conditions specified herein, for
the number of shares of stock or other securities or property of
Company, or of the corporation, person or other entity resulting from
such consolidation or surviving such merger or to which such sale shall
be made, as the case may be, which Holder of this Option would have
been entitled to receive had this Option been exercised immediately
before such reorganization, reclassification, consolidation, merger or
sale or any record date with respect thereto. In any such case, if
necessary, the provision set forth in this Option with respect to the
rights and interests thereafter of Holder shall be appropriately
adjusted in good faith by the Board of Directors of Company so as to be
applicable, as nearly as may reasonably be possible, to any shares of
stock or other securities or property thereafter deliverable on the
exercise of this Option. The subdivision or combination of shares of
Common Stock at any time outstanding into a greater or lesser number of
shares of Common Stock which results in adjustment pursuant to
subparagraph 8(a) above shall not be deemed to be a reclassification of
the Common Stock of Company for the purposes of this subparagraph 8(b).
Company shall not effect any such consolidation, merger, or sale,
unless before or upon the consummation thereof the successor
corporation (if other than Company) resulting from such consolidation
or merger or the corporation purchasing such assets shall assume, by
written instrument executed and delivered to Company and Holder, the
obligation to deliver to Holder such shares of stock, securities or
assets to which in accordance with the foregoing provisions, such
Holder may be entitled, as well as any other obligations arising under
this Option. If any such transaction occurs, but does not expressly
incorporate a price per share
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of Common Stock of Company, Company's Board of Directors shall
nonetheless reduce the Exercise Price if, in good faith, it concludes
that such transaction values Company at a per share price of less than
the Exercise Price.
(c) LIQUIDATING DIVIDENDS, ETC. If Company makes a
distribution of its assets to the holders of its Common Stock as a
dividend in liquidation or by way of return of capital or other than as
a dividend payable out of earnings or surplus legally available for
dividends under applicable law or any distribution to such holders made
in respect of the sale of all or substantially all of Company's assets
(other than as provided in Sections 8(a) or 8(b), Holder shall be
entitled to receive upon the exercise hereof, in addition to the shares
of Common Stock receivable upon such exercise, and without payment of
any consideration other than the Exercise Price, an amount in cash
equal to the fair market value of such distribution per share of Common
Stock multiplied by the number of shares of Common Stock which, on the
record date for such distribution, are issuable upon exercise of this
Option, or if no such record is taken, as of the date of such
distribution (with no further adjustment being made following any event
which causes a subsequent adjustment in the number of shares of Common
Stock issuable upon the exercise hereof), and an appropriate provision
therefor shall be made a part of any such distribution.
(d) ADDITIONAL AGREEMENTS RELATING TO OPTION SHARES.
Company agrees that the 1,651,846 Option Shares referred to in
paragraph 1 plus the 225,000 shares of Common Stock issuable under the
Warrant are intended to represent a 19.9 % equity interest in Company.
If Holder acquires the 1,651,846 Option Shares referred to in paragraph
1 above, Company agrees:
(i) Company may from time to time issue (an
"ISSUANCE") shares of Common Stock upon exercise of options,
warrants, convertible instruments and other rights to acquire
Company's Common Stock. In such event, the Option shall be
increased to allow Holder to purchase such number of shares of
Common Stock as is necessary to maintain Holder's 19.9 %
ownership interest in Company, at an exercise price equal to
the average closing price of the Common Stock over the 90 day
period immediately preceding the date of such Issuance. Such
Option may be exercised at any time within [90 days] after
Company notifies Holder of such Issuance.
(ii) Conversely, Company may from time to time redeem
or otherwise acquire or retire shares of Common Stock (a
"REDEMPTION EVENT"). In such event, Holder will have a right
to require Company to purchase ("PUT RIGHT") such number of
shares of Common Stock as is necessary to maintain a 19.9 %
interest in Company. The price at which Company will buy such
shares shall be the same price paid by Company in the
Redemption Event. The Put Right may be exercised by Holder
within [90 days] after Company notifies Holder of the
occurrence of a Redemption Event.
(e) NOTICE OF ADJUSTMENT. Whenever the number of Option
Shares or the Exercise Price is adjusted, as herein provided, Company
shall promptly notify Holder in writing of such adjustment(s) and shall
deliver to such Holder a statement setting forth the number of Option
Shares and the Exercise Price after such adjustment(s), setting forth a
brief statement of the facts requiring such adjustment(s) and setting
forth the computation by which such adjustment(s) was made.
(f) STATEMENT OF OPTION. The form of this Option need not
be changed because of any change in the Exercise Price or in the number
of Option Shares.
9. NOTICE. When any notice is required by this Option to
be given to a person, such notice shall be provided by first class mail, postage
prepaid or by facsimile transmission or any other means of physical delivery
reasonably calculated to reach such person at least as quickly as first class
mail, to the principal executive offices of such person, attention: Corporate
Secretary.
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10. REPLACEMENT OF OPTION. At the request of Holder and
on production of evidence reasonably satisfactory to Company of the loss, theft,
destruction or mutilation of this Option (and in the case of loss, theft, or
destruction, if required by Company, upon delivery of an indemnity agreement
reasonably requested by Company), Company at its expense will issue in lieu
thereof a new Option of like tenor, representing the right to subscribe for and
purchase the number of shares of Common Stock which may be subscribed for and
purchased hereunder.
11. REPRESENTATIONS.
(a) Holder, by its acceptance hereof represents that it
is an accredited investor within the meaning of Rule 501 of the
Securities Act and covenants that this Option is, and any stock issued
hereunder will be, acquired for investment purposes, and that Holder
will not distribute the same in violation of any state or federal law
or regulation.
(b) Company represents that it is duly incorporated under
the laws of the State of Nevada; that Company has been duly authorized
by all necessary corporate action to issue this Option to Holder; and
that this Option, when executed on Company's behalf by the person named
below will be binding upon Company in accordance with its terms.
IN WITNESS WHEREOF, Company has caused this Option to be
signed on its behalf by its undersigned officer, and its corporate seal to be
hereunto affixed, as of the date first above written.
DURASWITCH INDUSTRIES, INC.
Attest:
By: By:
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Title: Title:
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[Corporate Seal]
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EXHIBIT 5
FORM OF ELECTION TO PURCHASE
TO: DURASWITCH INDUSTRIES, INC.
Ladies and Gentlemen:
The undersigned hereby elects to exercise its right under the
attached Option by purchasing ____________________ shares of the Common Stock of
Company, and herewith tenders in payment for such shares the aggregate exercise
price of $_____________________ all in accordance with the terms of the attached
Option.
The undersigned requests that the certificate(s) for such
shares be issued in the name of _________________________ whose taxpayer number
is _________________ and whose address is
__________________________________________________ and that such certificates
(and any cash delivered therewith) be delivered to
_______________________________ whose address is ________________________
___________________________.
Date:_____________________
Signed:_____________________________________
(Signature must conform in all respects to name of Holder as specified
on face of the Option.)
Name of Holder:______________________________________________________
(please print)
Address of Holder:___________________________________________________
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EXHIBIT 7
ASSIGNMENT
FOR VALUE RECEIVED,
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(Name)
whose address is
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ASSIGNS AND TRANSFERS the attached Option together with all
right, title and interest therein, and does hereby irrevocably appoint
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to transfer said Option on the books of Company with full power of substitution
in the premises.
Done this day of
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Signed:
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By:
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Its:
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