STOCK OPTION AGREEMENT
THIS AGREEMENT dated as of the 5th day of September, 1997, (the "Grant
Date") is made and entered into by and between Xxx-Tyme, Inc., a Delaware
corporation with its principal offices located at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx (the "Company"), and Xxxxxxx Xxxxxxxxx (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Optionee desires to surrender and exchange options
previously granted to him by the Company on August 9, 1996, to purchase Ninety
Thousand (90,000) shares of the Company's Series C Preferred Stock ("Series C
Preferred Stock") with an exercise price of $1.00 per share and One Hundred
Thousand (100,000) shares of the Company's Common Stock, par value $.0001 per
share ("Common Stock") with an exercise price of $.25 per share, in exchange for
the issuance of options to purchase Two Hundred Thousand (200,000) shares of
Series C Preferred Stock with an exercise price of $.25 per share; and
WHEREAS, the Board of Directors has approved such exchange of options,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the Company and the Optionee hereby agree as follows:
Section 1. Grant of Options. Subject to the provisions of this
Agreement, the Company hereby grants to the Optionee options (the "Options") to
purchase from the Company at any time during the period commencing on the date
hereof through and including September 5, 2002 (the "Termination Date") (unless
terminated prior to such date pursuant to Section 2 below), Two Hundred Thousand
(200,000) shares of Series C Preferred Stock (the "Preferred Option Shares") at
an exercise price of $.25 per share (the "Exercise Price").
Section 2. Termination of Options. To the extent not exercised, the
Options shall
terminate either on the Termination Date or, in the event that the Optionholder
ceases to be employed by the Company, for any reason whatsoever, then this
Option Agreement shall terminate 90 days following the date of such termination,
or resignation, as the case may be, and the Optionholder shall have no further
rights under this Option Agreement.
Section 3. Corporate Events. In the event of a proposed liquidation of
the Company, a proposed sale of all or substantially all of its assets or its
Common Stock, a proposed merger or consolidation, or a proposed separation or
reorganization, the Board of Directors may declare that the Options shall
terminate as of a date to be fixed by the Board of Directors; provided however,
that not less than thirty (30) days preceding the date of such termination, the
Optionee may exercise the Options in whole or in part. However, nothing set
forth herein shall (i) extend the term set for purchasing the Option Shares or
(ii) give the Optionee any rights or privileges as a stockholder of the Company
prior to Optionee's exercise of any of the Option Shares.
Section 4. Exercise of Options. The Options may be exercised in whole
or in part in accordance with the provisions of this Agreement by the Optionee's
tendering the Exercise Price (or a proportionate part thereof if the Options are
partially exercised) in immediately available funds or other consideration
reasonably acceptable to the Board of Directors of the Company. The Company
shall cooperate to the extent reasonably possible with the Optionee in an
exercise pursuant to which all or part of the Optionee Shares will be sold
simultaneously with the exercise of the Options with the broker-dealer
participating in such sale being irrevocably instructed to remit the proceeds
from the exercise of the Options to the Company upon settlement of the sale of
the underlying Option Shares.
2
The Optionee may exercise part or all of the Options by tender to the
Company of a written notice of exercise together with advice of the delivery of
an order to a broker to sell part or all of the Option Shares, subject to such
exercise notice and an irrevocable order to such broker to deliver to the
Company (or its transfer agent) sufficient proceeds from the sale of such Option
Shares to pay the exercise price and any withholding taxes. All documentation
and procedures to be followed in connection with such a "cashless exercise"
shall be approved in advance by the Company, which approval shall be
expeditiously provided and not unreasonably withheld.
Section 5. Shares Certificates. Upon receipt of payment in full of the
Exercise Price, and after taking such steps as it deems necessary to satisfy any
withholding tax obligations imposed upon it by any level of government, the
Company will cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares so purchased by the Optionee to be issued to the
Optionee.
Section 6. Restrictions. The Options and the Option Shares have not
been registered under the Securities Act of 1933, as amended (the "Act").
Optionee understands that, unless registered with the Securities and Exchange
Commission for sale to the public, all Option Shares acquired upon the exercise
of the Options shall be "restricted securities" as that term is defined in Rule
144 promulgated under the Act. The certificate representing the Option Shares
shall bear an appropriate legend restricting their transfer. Such Option Shares
cannot be sold, transferred, assigned or otherwise hypothecated without
registration under the Act or unless a valid exemption from registration is then
available under applicable federal and state securities laws and the Optionee
has furnished the Company with an opinion of counsel satisfactory in form and
3
substance to the Company's counsel that such registration is not required.
Section 7. Default of Optionee. Should the Optionee at any time breach
any provision of this Agreement, the Options granted hereunder shall be deemed
null and void. The provision shall be in addition and not in lieu of any other
remedies which the Company may have at law and/or in equity.
Section 8. Share Adjustments. If there is any change in the number of
shares of Common Stock on account of the declaration of stock dividends,
recapitalization resulting in stock splits, or combinations or exchanges of
shares of Common Stock, or otherwise, the number of Option Shares available for
purchase by the exercise of the Options, and the Exercise Price, shall be
proportionately adjusted by the Company.
Section 9. Miscellaneous Provisions.
(a) Notices. Unless otherwise specifically provided herein, all notices
to be given hereunder shall be in writing and sent to the parties by certified
mail, return receipt requested, which shall be addressed to each party's
respective address, as set forth in the first paragraph of this Agreement, or to
such other address as such party shall give to the other party hereto by a
notice given in accordance with this Section and, except as otherwise provided
in this Agreement, shall be effective when deposited in the United States mail
properly addressed and postage prepaid. If such notice is sent other than by the
United States mail, such notice shall be effective when actually received by the
party being noticed.
(b) Assignment. This Agreement and the rights granted hereunder may not
be assigned in whole or in part by Optionee except by will or the laws of
descent and distribution, and the Options are exercisable during Optionee's
lifetime only by the Optionee. This Agreement may be assigned by the Company
without the consent of the Optionee.
4
(c) Further Assurances. Both parties hereto shall execute and deliver
such other instruments and do such other acts as may be necessary to carry out
the intent and purposes of this Agreement.
(d) Gender. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms and the
singular form of nouns and pronouns shall include the plural and vice versa.
(e) Captions. The captions contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit, extend or prescribe
the scope of this Agreement or the intent of any of the provisions hereof.
(f) Completeness and Modification. This Agreement constitutes the
entire understanding between the parties hereto superseding all prior and
contemporaneous agreements or understandings among the parties hereto concerning
the grant of stock options to the Optionee. This Agreement shall not terminated,
except in accordance with its terms, or amended in writing executed by all of
the parties hereto.
(g) Waiver. The waiver of a breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of
the same or any other term or condition.
(h) Severability. The invalidity or enforceability, in whole or in
part, of any covenant, promise or undertaking, or any section, subsection,
paragraph, sentence, clause phrase or word or of any provision of this Agreement
shall not affect the validity or enforceability of the remaining portions
thereof.
(i) Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
5
(j) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the heirs, successors, estate and personal representatives of the
Optionee and upon the successors and assigns of the Company.
(k) Litigation-Attorney' Fees. In connection with any litigation
arising out of the enforcement of this Agreement or for its interpretation, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees, at the trial and all appellate levels form the other party
hereto, who was an adverse party to such litigation.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth in the first paragraph of this Agreement above.
XXX-TYME, INC.
BY: /s/ Xxxxxx Xxxxxx
----------------------------
Xxxxxx Xxxxxx
President
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxx
0
