Exhibit 4.5
NEITHER THIS OPTION NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("ACT"), OR APPLICABLE STATE LAW. NEITHER THIS OPTION NOR SUCH COMMON STOCK MAY
BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW.
PURCHASE OPTION
For the Purchase of
183,272 Shares of Common Stock
of
LEVEL JUMP FINANCIAL GROUP, INC.
(A Colorado Corporation)
1. Purchase Option.
THIS CERTIFIES THAT, in consideration of $5.00 duly paid by or on
behalf of ZDG Holdings Inc. ("Holder"), with an address
of______________________________ Canada, as owner of this Purchase Option, to
Xxxxx Xxxxxxxxx ("Xxxxxxxxx"), Holder is entitled, at any time or from time to
time, commencing on the date hereof and expiring at 5:00 p.m., Eastern Time,
October 26, 2004 ("Expiration Date"), but not thereafter, to purchase and
receive from Xxxxxxxxx, in whole or in part up to 183,272 shares of common stock
of Level Jump Financial Group, Inc. ("Company"), $.001 par value ("Common
Stock"). This Purchase Option is one of several Purchase Options issued to
purchase an aggregate of 305,453 shares held by Xxxxxxxxx and represented by
Certificates Nos. ___ through ____, as set forth on Schedule A to that certain
Voting Agreement ("Voting Agreement"), dated as of October 27, 1999, by and
between Xxxxxx and Xxxxxxxxx. The 183,272 shares of Common Stock and any
securities into which they are exchanged hereafter are referred to collectively
herein as the "Option Shares." If the Expiration Date is a day on which banking
institutions are authorized by law to close, then this Purchase Option may be
exercised on the next succeeding day which is not such a day in accordance with
the terms herein.
This Purchase Option is initially exercisable at $0.34375 per Option
Share; provided, however, that upon the occurrence of any of the events
specified in Section 5 hereof, the rights granted by this Purchase Option,
including the exercise price and the number of shares of Common Stock to be
received upon such exercise, shall be adjusted as therein specified. The term
"Exercise Price" shall mean the initial exercise price or the adjusted exercise
price of a share of Common Stock, depending on the context.
2. Exercise.
2.1. Exercise Form. In order to exercise this Purchase Option, the
exercise form attached hereto must be duly executed and completed and delivered
to Xxxxxxxxx, together with this Purchase Option and payment of the Exercise
Price in cash or by certified check or official bank check payable to Xxxxxxxxx
for the Option Shares being purchased. If the rights represented hereby shall
not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date,
this Purchase Option shall become and be void without further force or effect,
and all rights represented hereby shall cease and expire.
2.2. Legend. Each certificate for Common Stock purchased under this
Purchase Option shall bear a legend as follows unless the Common Stock has been
registered under the Securities Act of 1933, as amended ("Act"):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended
("Act"), or applicable state law. The securities may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act
or pursuant to an exemption from registration under the Act
and applicable state law."
3. Transfer. This Purchase Option may be assigned or transferred, in whole or in
part, at the discretion of the Holder provided notice of the transfer is
forwarded to Xxxxxxxxx together with an opinion of counsel for the Holder,
addressed to Xxxxxxxxx, that this Purchase Option may be transferred pursuant to
an exemption from registration under the Act. Such opinion may be the opinion of
Xxxxxx X, Xxxxxxx Esq. and/or Xxxxxxxx Xxxxxx & Xxxxxx.
4. New Purchase Options to be Issued.
4.1. Partial Exercise. This Purchase Option may be exercised in whole
or in part. In the event of the exercise in part only, upon surrender of this
Purchase Option to Xxxxxxxxx, together with the duly executed exercise form and
funds sufficient to pay any Exercise Price, Xxxxxxxxx shall indicate the partial
exercise on the signature page hereto and shall return to the Holder this
Purchase Option.
4.2. Partial Transfer. Subject to the restrictions in Section 3 hereof,
in the event of the assignment hereof in part only, upon surrender of this
Purchase Option to Xxxxxxxxx for cancellation, together with the duly executed
assignment form, Xxxxxxxxx shall cause to be delivered to the Holder new
Purchase Options of like tenor to this Purchase Option in the names of the
Holder and the transferee evidencing the rights of the Holder and the transferee
to purchase the aggregate number of shares of Common Stock purchasable hereunder
and reflecting the transfer.
4.3. Lost Certificate. Upon receipt by Xxxxxxxxx of evidence of the
loss, theft, destruction or mutilation of this Purchase Option,, Xxxxxxxxx shall
execute and deliver a new Purchase Option of like tenor and date. Any such new
Purchase Option executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual obligation
on the part of Xxxxxxxxx.
5. Adjustments.
5.1. Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of Option Shares shall be subject to adjustment
from time to time as hereinafter set forth:
5.1.1. Stock Dividends, Recapitalization, Reclassification,
Split-Ups. If after the date hereof the number of Option Shares is increased by
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a stock dividend payable in shares of Common Stock or by a split-up,
recapitalization or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common Stock
that may be purchased upon exercise of this Purchase Option shall be increased
in proportion to such increase in the number of Option Shares.
5.1.2. Aggregation of Shares. If after the date hereof the
number of Option Shares is decreased by a consolidation, combination or
reclassification of shares of Common Stock or other similar event, then, upon
the effective date thereof, the number of shares of Common Stock that may be
purchased upon exercise of the Purchase Option shall be decreased in proportion
to such decrease in the number of Option Shares.
5.1.3. Adjustments in Exercise Price. Whenever the number of
shares of Common Stock purchasable upon the exercise of this Purchase Option is
adjusted, as provided in this Section 5.1, the Exercise Price shall be adjusted
(to the nearest one-millionth of one cent) by multiplying such Exercise Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise of
this Purchase Option immediately prior to such adjustment, and (y) the
denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter. If the Holder exercises this Purchase Option
after an adjustment which requires an aggregate payment in an amount which is
not evenly divisible by one cent, the aggregate amount to be paid shall be
rounded up to the nearest whole cent.
5.1.4. Replacement of Securities Upon Reorganization, Etc. In
case of any reclassification or reorganization of the outstanding shares of
Common Stock other than a change covered by Section 5.1.1 hereof or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation (including an exchange of the Common Stock for
securities of another corporation) 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 or
reorganization of the outstanding shares of Common Stock), or in the case of any
sale or conveyance to another corporation or entity of the property of the
Company as an entirety or substantially as an entirety in connection with which
the Company is dissolved, if and to the extent Xxxxxxxxx, as the holder of the
Option Shares purchasable upon exercise of this Purchase Option, has the right
to receive shares of stock or other securities or property (including cash) upon
such reclassification, reorganization, merger or consolidation, or upon a
dissolution following any such sale or other transfer, the Holder of this
Purchase Option shall have the right thereafter (until the expiration of the
right of exercise of this Purchase Option) to receive from Xxxxxxxxx, upon the
exercise hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or other transfer, by Xxxxxxxxx with respect to the Option Shares
purchasable upon exercise of this Purchase Option immediately prior to such
event,; and if any reclassification also results in a change in shares of Common
Stock covered by Section 5.1.1, then such adjustment shall be made pursuant to
Sections 5.1.1, 5.1.3 and this Section 5.1.4. The provisions of this Section
5.1.4 shall similarly apply to successive reclassifications, reorganizations,
mergers or consolidations, sales or other transfers.
5.1.5. Changes in Form of Purchase Option. This form of
Purchase Option need not be changed because of any change pursuant to this
Section, and Purchase Options issued after such change may state the same
Exercise Price and the same number of shares of Common Stock as are stated in
the Purchase Options initially issued pursuant to this Agreement. The acceptance
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by any Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to a prior adjustment
or the computation thereof.
6. Change of Address. As long as this Purchase Option is outstanding, the
Company's books and records shall indicate that the address of the record holder
of the Option Shares is Xxxxxxxxx.
7. Notices. All notices, requests, consents and other communications under this
Purchase Option shall be in writing and shall either be delivered personally or
sent by certified mail, return receipt requested, postage prepaid, or by Federal
Express next business day service with signed receipt required, and addressed as
follows, and shall be deemed duly given hereunder when so delivered: (i) if to
the registered Holder of the Purchase Option, to the address of such Holder as
set forth above, (ii) if to Xxxxxxxxx,________________________________. A copy
of any notice sent hereunder shall also be sent to Xxxxxx X. Xxxxxxx, Esq.,
Xxxxxxxx Xxxxxx & Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
8. Miscellaneous.
8.1. Headings. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Purchase
Option.
8.2. Entire Agreement. This Purchase Option (together with the other
agreements and documents being delivered pursuant to or in connection with this
Purchase Option) constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
8.3. Binding Effect. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder and Xxxxxxxxx, and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Purchase Option or any provisions
herein contained.
8.4. Governing Law; Submission to Jurisdiction. This Purchase Option
shall be governed by and construed and enforced in accordance with the laws of
the State of New York, without giving effect to conflict of laws. Xxxxxxxxx and
Xxxxxx hereby agree that any action, proceeding or claim against Xxxxxxxxx or
the Holder arising out of, or relating in any way to this Purchase Option shall
be brought and enforced in the courts of the State of New York or of the United
States of America for the Southern District of New York, and irrevocably submit
to such jurisdiction, which jurisdiction shall be exclusive. Xxxxxxxxx and the
Holder hereby waive any objection to such exclusive jurisdiction and that such
courts represent an inconvenient forum. Any process or summons to be served upon
Xxxxxxxxx or the Holder may be served by transmitting a copy thereof by
registered or certified mail, return receipt requested, postage prepaid,
addressed to such party at its address set forth on the signature page hereof.
Such mailing shall be deemed personal service and shall be legal and binding
upon Xxxxxxxxx or the Holder, as the case may be, in any action, proceeding or
claim. Xxxxxxxxx and the Holder agree that the prevailing party(ies) in any such
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action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys' fees and expenses relating to such action or proceeding
and/or incurred in connection with the preparation therefor.
8.5. Waiver, Etc. The failure of Xxxxxxxxx or the Holder to at any time
enforce any of the provisions of this Purchase Option shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Purchase Option or any provision hereof or the right of
Xxxxxxxxx or any Holder to thereafter enforce each and every provision of this
Purchase Option. No waiver of any breach, non-compliance or non-fulfillment of
any of the provisions of this Purchase Option shall be effective unless set
forth in a written instrument executed by the party or parties against whom or
which enforcement of such waiver is sought; and no waiver of any such breach,
non-compliance or non-fulfillment shall be construed or deemed to be a waiver of
any other or subsequent breach, non-compliance or non-fulfillment.
8.6. Execution in Counterparts. This Purchase Option may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement, and shall become
effective when one or more counterparts has been signed by each of the parties
hereto and delivered to each of the other parties hereto.
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Purchase
Option as of the 26th day of October, 1999.
-----------------------------------
Xxxxx Xxxxxxxxx
ZDG HOLDINGS, INC.
By:_________________________________
Xxxxxx Xxxxxx, President
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* Partial Exercise Record *
Date of Exercise Number of Option Shares
----------------------------------- ---------------------------------
----------------------------------- ---------------------------------
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Form to be used to exercise Purchase Option:
Xxxxx Xxxxxxxxx
--------------------------
--------------------------
Date:_________________, 19__
The undersigned hereby elects irrevocably to exercise the
within Purchase Option and to purchase from you ________________ shares of
Common Stock of Level Jump Financial Group, Inc. and hereby makes payment of
$____________ (at the rate of $_____________ per share of Common Stock) in
payment of the Exercise Price pursuant thereto. Please deliver the Common Stock
as to which this Purchase Option is exercised in accordance with the
instructions given below.
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Signature
INSTRUCTIONS FOR DELIVERY OF SECURITIES
Name: ______________________________________________________________________
(Print in Block Letters)
Address: ______________________________________________________________________
_______________________________________________________________________________
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Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the Holder to effect a transfer of the
within Purchase Option):
FOR VALUE RECEIVED, _________________________________________
_________________________________________________ does hereby sell, assign and
transfer unto _________________________________________________ the right to
purchase ______________ shares of Common Stock to purchase _____________________
shares of Common Stock of Level Jump Financial Group, Inc. evidenced by the
within Purchase Option.
Dated:___________________, 19____
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Signature
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