STOCK OPTION AGREEMENT
AGREEMENT, made as of February 2, 2000, by and between PRE-CELL
SOLUTIONS, INC., a Colorado corporation (the "Company"), and XXXXX & XXXXX,
P.A., a Florida professional association ("T&R").
WHEREAS, on February 2, 2000 (the "Grant Date"), the Board of Directors
authorized the grant to T&R an option (the "Option") to purchase an aggregate of
100,000 shares of the authorized but unissued common stock of the Company, $.01
par value ("Common Stock"), conditioned upon T&R's acceptance thereof upon the
terms and conditions set forth in this Agreement; and
WHEREAS, the T&R desires to acquire the Option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to T&R the right
and option ("Option") to purchase all or any part of an aggregate of 100,000
shares of Common Stock ("Option Shares") on the terms and conditions set forth
herein. The Option represented hereby is a non-qualified stock option not
intended to qualify under any section of the Internal Revenue Code of 1986, as
amended, and is not granted under any plan.
2. Exercise Price. The exercise price ("Exercise Price") of the Option
shall be $0.44 per share.
3. Exercisability. This Option is immediately exercisable and shall
remain exercisable for a period of five years from the date of this Agreement
(the "Exercise Period").
4. Adjustments. In the event of any change in the number of outstanding
shares of Common Stock of the Company occurring as the result of a stock split,
reverse stock split or stock dividend on the Common Stock, after the Grant Date,
the Company shall proportionately adjust the number of Option Shares and the
Exercise Price of the Option. Any right to acquire a fractional Option Share
resulting from adjustments will be rounded to the nearest whole Option Share. If
the Company shall be the surviving corporation in any merger, combination or
consolidation, this Option shall pertain and apply to the Option Shares to which
T&R is entitled hereunder, without adjustment. In the event of a change in the
par value of the shares of Common Stock which are subject to this Option, this
Option will be deemed to pertain to the shares resulting from any such change.
To the extent that the foregoing adjustments relate to Common Stock, the
adjustments will be made by the Board of Directors whose determination will be
final, binding and conclusive.
5. Method of Exercise.
5.1 Notice to the Company. The Option may be exercised in
whole or in part by written notice in the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice.
5.2 Delivery of Option Shares. The Company shall deliver a
certificate for the Option Shares to T&R as soon as practicable after payment
therefor.
5.3 Payment of Purchase Price.
5.3.1 Cash Payment. T&R shall make cash payments by
wire transfer, certified or bank check or company check, in each case payable to
the order of the Company; the Company shall not be required to deliver
certificates for Option Shares until the Company has confirmed the receipt of
good and available funds in payment of the purchase price thereof.
5.3.2 Stock Payment. The Board of Directors, in its
sole discretion, may allow T&R to use Common Stock of the Company owned by it to
make any required payments by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the Company,
free of any liens or encumbrances. Shares of Common Stock used for this purpose
shall be valued at the Fair Market Value. Notwithstanding the foregoing, the
Company shall have the right to reject payment in the form of Common Stock if in
the opinion of counsel for the Company, (i) it could result in an event of
"recapture" under Section 16(b) of the Securities Exchange Act of 1934; (ii)
such shares of Common Stock may not be sold or transferred to the Company; or
(iii) such transfer could create legal difficulties for the Company.
6. Nonassignability. The Option shall not be assignable or
transferable, except with the written consent of the Company.
7. Company Representations. The Company hereby represents and warrants
to T&R that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to T&R in accordance with the terms and conditions hereof,
will be duly and validly issued and fully paid and non-assessable.
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8. T&R Representations. T&R hereby represents and warrants to the
Company that:
(i) it is acquiring the Option and shall acquire the
Option Shares for its own account and not with a view towards the
distribution thereof;
(ii) its representatives have received a copy of all
reports and documents required to be filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended, within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) it understands that he must bear the economic
risk of the investment in the Option Shares, which cannot be sold by
him unless they are registered under the Securities Act of 1933 (the
"1933 Act") or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Option Shares for
sale under the 1933 Act;
(iv) its representatives have had both the
opportunity to ask questions and receive answers from the officers and
directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
(v) its representatives are aware that the Company
shall place stop transfer orders with its transfer agent against the
transfer of the Option Shares in the absence of registration under the
1933 Act or an exemption therefrom as provided herein; and
(vi) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
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9. Restriction on Transfer of Option Shares.
9.1 Anything in this Agreement to the contrary
notwithstanding, T&R hereby agrees that it shall not sell, transfer by any means
or otherwise dispose of the Option Shares acquired by it without registration
under the 1933 Act, or in the event that they are not so registered, unless (i)
an exemption from the 1933 Act registration requirements is available
thereunder, and (ii) T&R has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
10. Miscellaneous.
10.1 Notices. All notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be either delivered
personally, transmitted by electronic means or sent by a nationally recognized
next-day courier to the parties at their respective addresses set forth herein,
or to such other address as either shall have specified by notice in writing to
the other. Notice shall be deemed duly given hereunder when delivered or
transmitted as provided herein.
10.2 T&R and Stockholder Rights. T&R shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option.
10.3 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
10.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by writing executed by T&R and the Company.
10.5 Binding Effect; Successors. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (without regard to
choice of law provisions).
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10.7 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
Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above:
PRE-CELL SOLUTIONS, INC. Address: 000 Xxxx Xxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Chief Executive Offier
XXXXX & XXXXX, P.A. Address: 0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
By: /s/ Xxxxx Xxxxx
-------------------------
Printed name: Xxxxx Xxxxx
Title: Partner
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
--------------------
DATE
PRE-CELL SOLUTIONS, INC.
000 Xxxx Xxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxx 00000
Attention: Stock Option Committee of the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of December 1,
1998 with Pre-Cell solutions, Inc. (the "Company"), I hereby irrevocably elect
to exercise the right to purchase _________ shares of the Company's common
stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete applicable
box[es]):
" a [personal check] [certified check] [bank check] payable to
the order of "Global Telecommunication Solutions, Inc." in the
sum of $_________;
" confirmation of wire transfer in the amount of
$_____________; and/or
" with the consent of the Company, a certificate for
__________ shares of the Company's Common Stock, free and
clear of any encumbrances, duly endorsed, having a fair market
value of $---------.
I hereby represent and warrant to, and agree with, the Company that:
(i) I have acquired the Option and shall acquire the
Option Shares for my own account, for investment, and not with a view
towards the distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the "1933
Act") or an exemption therefrom is available thereunder and that the
Company is under no obligation to register the Option Shares for sale
under the 1933 Act;
(iv) I agree that I will not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by me hereby
except in accordance with Company's policy, if any, regarding the sale
and disposition of securities owned by T&Rs and/or directors of the
Company;
(v) in my position with the Company, I have had both
the opportunity to ask questions and receive answers from the officers
and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
(vi) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vii) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
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(Signature) (Address)
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(Print Name)
----------------------------------- --------------------------------------
(Federal Tax Identification Number)
