STOCK OPTION AGREEMENT
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This Stock Option Agreement (the "Option") effective as of date executed by
Optionor below, is by and between Xxxxx Xxxxxxx, hereinafter collectively
referred to as (the "Optionor") and ZiaSun Technologies, Inc., a Nevada
Corporation, hereinafter referred to as ("the Company" or the "Optionee").
Recitals
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A. Whereas, the Optionor has acquired a minimum of 50,000 shares of Common
Stock, $.001 Par Value of ZiaSun Technologies, Inc., a Nevada Corporation, in a
stock for stock exchange pursuant to the terms of that certain Acquisition
Agreement and Plan of Reorganization between the parties.
B. Whereas, the purpose of this Option is to provide the Company an
Option to purchase from the Optionor, up to 50,000 shares of the Common Stock of
the Company owned by Optionor, at an exercise price of $3.00 per share, for a
period of one (1) year, in the event that Xxxx0xxxx.xxx, Ltd., a Hong Kong
Registered Company ("Asia4sale"), has failed to reach positive cash flow by
September 30, 2000.
C. Whereas, in order to provide for the efficient separation between the
parties in the event that Asia4sale has failed to reach positive cash flow by
September 30, 2000, the Optionor desires to grant to the Optionee an option with
respect to up to 50,000 shares of the Common Stock of the Company owned by the
Optionor, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration for the mutual covenants, promises and the
Option set forth herein, the parties agree as follows:
1. Grant of Option. The Optionor hereby grants to the Optionee an
irrevocable option (the "Option") to purchase up to a cumulative total of 50,000
shares of the Common Stock, $0.001 Par Value per share of ZiaSun Technologies,
Inc., a Nevada Corporation, owned by the Optionor (the "Shares"), at an exercise
price of $3.00 per share, as set forth below.
2. Time and Manner of Exercise of Option. The Option may be exercised by
the Optionee, at any time within a period of one (1) year from the date of this
Option, in the event that Asia4sale has failed to reach positive cash flow by
September 30, 2000.
3. Termination of Option. The Option shall terminate at 5:00 p.m., Pacific
Standard Time, one (1) year following the execution of this Option.
4. Conditions to Sale. The obligation of the Optionor to sell the Shares to
Optionee hereunder is subject to the conditions, that (a) all information and
payment for such Shares shall have been received by the Optionor with the
Exercise Notice; and (b) no preliminary or permanent injunction or other order
by any court of competent jurisdiction prohibiting or otherwise restraining such
sale shall be in effect.
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5. Representations and Warranties of the Optionor.
(a) The Optionor represents and warrants to Optionee that execution and
delivery of this Option by the Optionor and the consummation of the transactions
contemplated hereby have been duly authorized on their part.
(b) This Option when duly executed and delivered by the Optionor,
constitutes a valid and binding obligation of the Optionor and, assuming this
Option constitutes a valid and binding obligation of Optionee, is enforceable
against the Optionor in accordance with its terms.
(c) Upon delivery of the Shares to Optionee upon the exercise of the
Option, Optionee will acquire the Shares free and clear of all claims, liens,
charges, encumbrances and security interests of any nature whatsoever.
6. Representations and Warranties of Optionee. The Optionee hereto
represents and warrants to the Optionor that:
(a) Such Optionee has the authority to enter into this Option and to carry
out its obligations hereunder;
(b) The execution and delivery of this Option by each such Optionee and the
consummation by Optionee of the transactions contemplated hereby have been duly
authorized by any party to which Optionee is required to obtain authorization;
7. Adjustment Upon Changes in Capitalization. Without limitation contained
in this Option in the event of any change in Company common stock by reason of
stock dividends, split-ups, reverse splits, mergers (including the Merger),
recapitalizations, combinations, exchange of shares or the like, the type and
number of shares or securities subject to the Option, and the purchase price per
share provided in Section 1, shall be adjusted appropriately to restore to
Optionee to its rights hereunder.
8. Binding Effect; No Assignment; No Third Party Beneficiaries. This Option
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Except as expressly provided for in
this Option, neither this Option nor the rights or the obligations of either
party hereto are assignable, except by operation of law, or with the written
consent of the other party. Nothing contained in this Option, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective permitted assigns any rights or remedies of any nature
whatsoever by reason of this Option.
9. Entire Agreement. This Option constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties or any
of them with respect to the subject matter hereof.
10. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
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11. Validity. The invalidity or unenforceability of any provision of this
Option shall not affect the validity or enforceability of the other provisions
of this Option, which shall remain in full force and effect. In the event any
court or other competent authority holds any provisions of this Option to be
null, void or unenforceable, the parties hereto shall negotiate in good faith
the execution and delivery of an amendment to this Option in order, as nearly as
possible, to effectuate, to the extent permitted by law, the intent of the
parties hereto with respect to such provision and the economic effects thereof.
Each party agrees that, should any court or other competent authority hold any
provision of this Option or part hereof to be null, void or unenforceable, or
order any party to take any action inconsistent herewith, or not take any action
required herein, the other party shall not be entitled to specific performance
of such provision or part hereof or to any other remedy, including but not
limited to money damages, for breach hereof or of any other provision of this
Option or part hereof as the result of such holding or order.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if (i) delivered personally, or (ii) sent by
reputable overnight courier service, or (iii) telecopied (which is confirmed),
or (iv) five days after being mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Company or Optionee, addressed to it at:
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Xx. Xxxxxxx Xxxxx, President
ZiaSun Technologies, Inc.
00000 Xxxx Xxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
With copy to Counsel, addressed to:
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Xxxxxx X. Xxxxxxx, Esq.
Wenthur & Chachas
0000 Xx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
If to Optionor, addressed to them at:
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Xxxxx Xxxxxxx
1st Floor, 67 Xxx Xxx,
Sai Kung,
New Territories,
Hong Kong
13. Governing Law; Choice of Forum. This Option shall be governed by and
construed in accordance with the laws of the State of California applicable to
agreements made and to be performed entirely within such State and without
regard to its choice of law principles. All parties hereto (a) consents to
submit itself to the personal jurisdiction of any federal court located in the
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State of California or any California state court in the event any dispute
arises out of this Option or any of the transactions contemplated by this
Option, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (c)
agrees that it will not bring any action relating to this Option or any of the
transactions contemplated by this Option in any court other than a federal court
sitting in the State of California or a California state court.
14. Counterparts. This Option may be executed in one or more counterparts,
all of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
15. Facsimile Signatures. It is expressly agreed that the parties may
execute this Option via facsimile signature and such facsimile signature pages
shall be treated as originals for all purposes.
16. Amendments; Waiver. This Option may be amended by the parties hereto
and the terms and conditions hereof may be waived only by an instrument in
writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Option to be
executed as of the date first above written.
OPTIONOR
/S/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
OPTIONEE
ZIASUN TECHNOLOGIES, INC.
A Nevada Corporation
Dated: June 16, 1999 /S/ Xxxxxxx Xxxxx
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By: Xxxxxxx Xxxxx
Its: President
Dated: March 25, 1999 /S/ Xxxxxxxx XxXxxx
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By: Xxxxxxxx X. XxXxxx
Its: Secretary
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