EXHIBIT 99.11
EXCEPT AS PERMITTED BY SECTION 8 HEREOF, NO TRANSFER SHALL BE MADE AT
ANY TIME UNLESS THE COMPANY SHALL HAVE BEEN SUPPLIED WITH EVIDENCE
REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT IN VIOLATION
OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
VITAFORT INTERNATIONAL CORPORATION
______________________
OPTION TO PURCHASE
SHARES OF COMMON STOCK
AS HEREIN DESCRIBED
DATED: AS OF DECEMBER 16, 1995
THIS CERTIFIES THAT, FOR VALUE RECEIVED
NAME: Xxxx Xxxxxxx
ADDRESS: 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX
00000
or registered assigns (the "Holder") are entitled, subject to the terms set
forth, to purchase from Vitafort International Corporation (the "Company"), a
Delaware corporation, having its offices at Suite 000, 0000 Xxxxxx xx xxx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, up to ONE MILLION TWO HUNDRED FIFTY THOUSAND
(1,250,000) shares of the Company's common stock subject to adjustment as set
forth herein.
1. As used herein:
(a) "Common Stock" or "Common Shares" shall initially refer to the
Company's common stock including Underlying Securities, as more fully
set forth in Section 5 hereof.
(b) "Option Price" or "Common Share Price" shall be "EXERCISE PRICE" Cents
($ .15) per share.
(c) "Underlying Securities" or "Underlying Shares"or "Underlying Stock"
shall refer to the Common Shares or other securities or property
issuable or issued upon exercise of this Option.
-1-
2. (a) The purchase rights represented by this Option may be exercised by the
Holder hereof, in whole or in part (but not as to less than a whole
Common Share), at any time, and from time to time, during the period
commencing this date, until DECEMBER 16, 2000 (the "Expiration Date"),
by the presentation of this Option, with the purchase form attached
duly executed, at the Company's office (or such office or agency of
the Company as it may designate in writing to the Holder hereof by
notice pursuant to Section 14 hereof), specifying the number of Common
Shares as to which the Option is being exercised, and upon payment by
the Holder to the Company in cash or by certified check or bank draft,
in an amount equal to the Option Price times the number of Common
Shares then being purchased hereunder.
(b) The Company agrees that the Holder hereof shall be deemed the record
owner of such Underlying Securities as of the close of business on the
date on which this Option shall have been presented and payment made
for such Underlying Securities as aforesaid. Certificates for the
Underlying Securities so obtained shall be delivered to the Holder
hereof within a reasonable time, not exceeding seven (7) days, after
the rights represented by this Option shall have been so exercised.
If this Option shall be exercised in part only or transferred in part
subject to the provisions herein, the Company shall, upon surrender of
this Option for cancellation or partial transfer, deliver a new Option
evidencing the rights of the Holder hereof to purchase the balance of
the Underlying Shares which such Holder is entitled to purchase
hereunder. Exercise in full of the rights represented by this Option
shall not extinguish the rights granted under Section 9 hereof.
3. Subject to the provisions of Section 8 hereof, (i) this Option is
exchangeable at the option of the Holder at the aforesaid office of the
Company for other Options of different denominations entitling the Holder
thereof to purchase in the aggregate the same number of Common Shares as
are purchasable hereunder; and (ii) this Option may be divided or combined
with other Options which carry the same rights, in either case, upon
presentation hereof at the aforesaid office of the Company together with a
written notice, signed by the Holder hereof, specifying the names and
denominations in which new Options are to be issued, and the payment of any
transfer tax due in connection therewith.
4. Subject and pursuant to the provisions of this Section 4, the Option Price
and number of Common Shares subject to this Option shall be subject to
adjustment from time to time as set forth hereinafter in this Section 4.
(a) If the Company shall at any time subdivide its outstanding Common
Shares by recapitalization, reclassification, stock dividend, or
split-up thereof or other means, the number of Common Shares subject
to this Option immediately prior to such subdivision shall be
proportionately increased and the Option Price shall be
proportionately decreased, and if the Company shall at any time
combine the outstanding Common Shares by recapitalization,
reclassification or combination thereof or other means, the number of
Common Shares subject to this Option immediately prior to such
combination shall be proportionately decreased and the Option Price
shall be proportionately increased. Any such adjustment and
adjustment to the Option Price shall become effective at the close of
business on the record date for such subdivision or combination.
-2-
(b) If the Company after the date hereof shall distribute to all of the
holders of its Common Shares any securities including, but not limited
to Common Shares, or other assets (other than a cash distribution made
as a dividend payable out of earnings or out of any earned surplus
legally available for dividends under the laws of the jurisdiction of
incorporation of the Company), the Board of Directors shall be
required to make such equitable adjustment in the Option Price and the
type and/or number of Underlying Securities in effect immediately
prior to the record date of such distribution as may be necessary to
preserve to the Holder of this Option rights substantially
proportionate to and economically equivalent to those enjoyed
hereunder by such Xxxxxx immediately prior to the happening of such
distribution. Any such adjustment made reasonably and in good faith
by the Board of Directors shall be final and binding upon the Holders
and shall become effective as of the record date for such
distribution.
(c) No adjustment in the number of Common Shares subject to this Option or
the Option Price shall be required under this Section 4 unless such
adjustment would require an increase or decrease in such number of
shares of at least 1% of the then adjusted number of Common Shares
issuable upon exercise of the Option, provided, however, that any
adjustments which by reason of the foregoing are not required at the
time to be made shall be carried forward and taken into account and
included in determining the amount of any subsequent adjustment. If
the Company shall make a record of the Holders of its Common Shares
for the purpose of entitling them to receive any dividend or
distribution and legally abandon its plan to pay or deliver such
dividend or distribution then no adjustment in the number of Common
Shares subject to the Option shall be required by reason of the making
of such record.
(d) In case of any capital reorganization or reclassification or change of
the outstanding Common Shares (exclusive of a change covered by
Section 4(a) hereof or which solely affects the par value of such
Common Shares) or in the case of any merger or consolidation of the
Company with or into another corporation (other than a consolidation
or merger in which the Company is the continuing corporation and which
does not result in any reclassification, change, capital
reorganization or change in the ownership of the outstanding Common
Shares), or in the case of any sale or conveyance or transfer of all
or substantially all of the property of the Company and in connection
with which the Company is dissolved, the Holder of this Option shall
have the right thereafter (until the expiration of the right of
exercise of this Option) to receive upon the exercise hereof, for the
same aggregate Option Price payable hereunder immediately prior to
such event, the kind and amount of shares of stock or other securities
or property receivable upon such reclassification, change, capital
reorganization, merger or consolidation, or upon the dissolution
following any sale or other transfer, by a holder of the number of
Common Shares of the Company equal to the number of common shares
obtainable upon exercise of this Option immediately prior to such
event; and if any reorganization, reclassification, change, merger,
consolidation, sale or transfer also results in a change in Common
Shares covered by Section 4(a), then such adjustment shall be made
pursuant to both this Section 4(d) and Section 4(a). The provisions
of this Section 4(d) shall similarly apply to successive
reclassification, or capital reorganizations, mergers or
consolidations, changes, sales or other transfers.
-3-
(e) The Company shall not be required to issue fractional Common Shares
upon any exercise of this Option. As to any final fraction of a
Common Share which the Holder of this Option would otherwise be
entitled to purchase upon such exercise, the Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to the
same fraction of the market value of a share of such stock on the
business day preceding the day of exercise or book value as determined
by the Company's independent public accountants if not publicly
traded. The Holder of this Option, by his acceptance hereof,
expressly waives any right to receive any fractional shares of stock
upon exercise of this Option.
(f) As used herein, the current market price ("Market Price") per share at
any date shall be the price of Common Shares on the business day
immediately preceding the event requiring an adjustment hereunder and
shall be (A) if the principal trading market for such securities is an
exchange, the closing price on such exchange on such day provided if
trading of such Common Shares is listed on any consolidated tape, the
price shall be the closing price set forth on such consolidated tape
or (B) if the principal market for such securities is the over-the-
counter market, the high bid price on such date as set forth by NASDAQ
or closing price if listed on NASDAQ NMS or, if the security is not
quoted on NASDAQ, the high bid price as set forth in the NATIONAL
QUOTATION BUREAU sheet listing such securities for such day.
Notwithstanding the foregoing, if there is no reported closing price
or high bid price, as the case may be, on a date prior to the event
requiring an adjustment hereunder, then the current market price shall
be determined as of the latest date prior to such day for which such
closing price or high bid price is available.
(g) Irrespective of any adjustments pursuant to this Section 4 in the
Option Price or in the number, or kind, or class of shares or other
securities or other property obtainable upon exercise of this Option,
and without impairing any such adjustment the certificate representing
this Option may continue to express the Option Price and the number of
Common Shares obtainable upon exercise at the same price and number of
Common Shares as are stated herein.
(h) Until this Option is exercised, the Underlying Shares, and the Option
Price shall be determined exclusively pursuant to the provisions
hereof.
(i) Upon any adjustment of this Option the Company shall give written
notice thereof to the Holder which notice shall include the number of
Underlying Securities purchasable and the price per share upon
exercise of this Option and shall set forth in reasonable detail the
events which resulted in such adjustment.
5. For the purposes of this Option, the terms "Common Shares" or "Common
Stock" shall mean (i) the class of stock designated as the common stock of
the Company on the date set forth on the first page hereof or (ii) any
other class of stock resulting from successive changes or reclassification
of such Common Stock consisting solely of changes from par value to no par
value, or from no par value to par value or changes in par value. If at
any time, as a result of an adjustment made pursuant to Section 4, the
securities or other property obtainable upon exercise of this Option shall
include shares or other securities of another corporation or other
property, then thereafter, the number of such other shares or other
securities or property so obtainable shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
-4-
practicable to the provisions with respect to the Common Shares contained
in Section 4, and all other provisions of this Option with respect to
Common Shares shall apply on like terms to any such other shares or other
securities or property. Subject to the foregoing, and unless the context
requires otherwise, all references herein to Common Shares shall, in the
event of an adjustment pursuant to Section 4, be deemed to refer also to
any other shares or other securities or property when obtainable as a
result of such adjustments.
6. The Company covenants and agrees that:
(a) During the period within which the rights represented by this Option
may be exercised, the Company shall, at all times, reserve and keep
available out of its authorized capital stock, solely for the purposes
of issuance upon exercise of this Option, such number of its Common
Shares as shall be issuable upon the exercise of this Option and at
its expense will obtain the listing thereof on all quotation systems
or national securities exchanges on which the Common Shares are then
listed; and if at any time the number of authorized Common Shares
shall not be sufficient to effect the exercise of this Option, the
Company will take such corporate action as may be necessary to
increase its authorized but unissued Common Shares to such number of
shares as shall be sufficient for such purpose; the Company shall have
analogous obligations with respect to any other securities or property
issuable upon exercise of this Option;
(b) All Common Shares which may be issued upon exercise of the rights
represented by this Option will, upon issuance, be validly issued,
fully paid, non-assessable and free from all taxes, liens and charges
with respect to the issuance thereof; and
(c) All original issue taxes payable in respect of the issuance of Common
Shares upon the exercise of the rights represented by this Option
shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the
transfer of any Options.
7. Until exercised, this Option shall not entitle the Holder hereof to any
voting rights or other rights as a shareholder of the Company.
8. No transfer of all or a portion of the Option or Underlying Securities
shall be made at any time unless the Company shall have been supplied with
evidence reasonably satisfactory to it that such transfer is not in
violation of the Securities Act of 1933, as amended (the "Act"). Subject to
the satisfaction of the aforesaid condition and upon surrender of this
Option or certificates for any Underlying Securities at the office of the
Company, the Company shall deliver a new Option or Options or new
certificate or certificates for Underlying Securities to and in the name of
the assignee or assignees named therein. Any such certificate may bear a
legend reflecting the restrictions on transfer set forth herein.
9. If this Option is lost, stolen, mutilated or destroyed, the Company shall,
on such terms as to indemnity or otherwise as the Company may reasonably
impose, issue a new Option of like denomination, tenor and date. Any such
new Option shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Option shall be at any time enforceable by anyone.
-5-
10. Any Option issued pursuant to the provisions of Section 9 hereof, or upon
transfer, exchange, division or partial exercise of this Option or
combination thereof with another Option or Options, shall set forth each
provision set forth in Sections 1 through 15, inclusive, of this Option as
each such provision is set forth herein, and shall be duly executed on
behalf of the Company by its chief executive officer or chief operating
officer.
11. Upon surrender of this Option for transfer or exchange or upon the exercise
hereof, this Option shall be cancelled by the Company, and shall not be
reissued by the Company and, except as provided in Section 2 in case of a
partial exercise, Section 3 in case of an exchange or Section 8 in case of
a transfer, or Section 9 in case of mutilation. Any new Option certificate
shall be issued promptly but not later than fifteen (15) days after receipt
of the old Option certificate.
12. This Option shall inure to the benefit of and be binding upon the Holder
hereof, the Company and their respective successors, heirs, executors,
legal representatives and assigns.
13. All notices required hereunder shall be in writing and shall be deemed
given when telegraphed, delivered personally or within two (2) days after
mailing when mailed by certified or registered mail, return receipt
requested, to the party to whom such notice is intended, at the address of
such other party as set forth on the first page hereof, or at such other
address of which the Company or Holder has been advised by the notice
hereunder.
14. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
15. The validity, interpretation and performance of this Option and of the
terms and provisions hereof shall be governed by the laws of the State of
California applicable to agreements entered into and performed entirely in
such state.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by its
duly authorized officer as of DECEMBER 30, 1995.
VITAFORT INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx, Acting Chief Financial Officer
-6-
PURCHASE FORM
TO BE EXECUTED
UPON EXERCISE OF OPTION
The undersigned record holder of the within Option hereby irrevocably elects to
exercise the right to purchase __________ Common Shares evidenced by the within
Option, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full. The undersigned requests that
certificates for such shares and warrants shall be issued in the name set forth
below.
___________________ , 19___
_____________________________________
Signature
_____________________________________
Print Name of Signatory
_____________________________________
Name to whom certificates are to be issued if different from above
_____________________________________
(Street Address)
_____________________________________
(City, State Zipcode)
_____________________________________
(Tax Payer I.D. Number)
If said number of shares and warrants shall not be all the shares purchasable
under the within Option, the undersigned requests that a new Option for the
unexercised portion shall be registered in the name of:
____________________________________
(Please Print)
____________________________________
(Street Address)
____________________________________
(City, State Zipcode)
____________________________________
(Tax Payer I.D. Number)
____________________________________
Signature
____________________________________
Print Name of Signatory
-7-
FORM OF ASSIGNMENT
FOR VALUE RECEIVED _______________________________, hereby sells,
assigns and transfers to ________________________________,(Social
Security or I.D. No.__________________) the within Option, or that
portion of this Option purchasable for _______ common shares together
with all rights, title and interest therein, and does hereby
irrevocably constitute and appoint __________________________________
attorney to transfer such Option on the register of the within named
Company, with full power of substitution.
_____________________________
(Signature)
Dated: _____________ , 19___
Signature Guaranteed:
____________________________
(INTENTIONALLY BLANK)
-8-
