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Exhibit 10.7
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT is entered into this 29th day of March, 2000
(the "Agreement") by and between Bickhams Capital, Inc., a corporation
incorporated under the laws of the state of Delaware, located at 00-00 Xxxx
Xxxx, Xxxxxxx 0000, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx ("Bickhams") and
XxxxxXxxx.Xxx Networks, Inc., a corporation incorporated under the laws of the
state of California, located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000 ("VideoDome").
WHEREAS, VideoDome is engaged in the business of providing state-of-the-art
Internet video product;
WHEREAS, Bickhams is in the business of locating, financing and supporting
Internet and e-commerce companies;
WHEREAS, VideoDome requires an additional $5,300,000 of financing to
implement its business plan; and
WHEREAS, Bickhams and VideoDome have agreed that subject to the terms of
this Agreement Bickhams shall acquire options to invest up to $5,300,000 in
VideoDome in return for a 50.1 % equity interest in VideoDome;
NOW, THEREFORE, the parties have agreed as follows:
1. Grant of Options to Bickhams. Subject to the terms and conditions set
forth below and effective as of the date hereof, VideoDome hereby grants to
Bickhams options to purchase shares of its newly issued "Preferred Stock", as
hereinafter defined, representing the following percentages of VideoDome's
capital stock on a "fully-diluted basis", as hereinafter defined (collectively,
the "Options"):
a. Initial Option. The initial option shall be for 5% of the capital
stock at an exercise price of $150,000 (US)(the "Initial
Option"). The Initial Option shall be exercisable for a period
commencing as of the date hereof and terminating thirty days from
the date hereof or on April 30, 2000 (the "Initial Option
Period");
b. Second Option. The second option shall be for an additional 5% of
the capital stock at an exercise price of $150,000 (US)(the
"Second Option"). The Second Option shall be exercisable only:
(i) in the event Bickhams exercises the Initial Option during the
Initial Option Period and (ii) during the period commencing as of
June 1, 2000 and terminating on July 31, 2000 (the "Second Option
Period");
c. Final Option. The final option shall be for an additional 40.1%
of the capital stock at an exercise price of $5,000,000 (US)(the
"Final Option"). The Final Option shall be exercisable only (i)
in the
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event Bickhams exercises the Initial Option and the Second Option
during the Initial Option Period and Second Option Period,
respectively and (ii) during the period commencing as of August
1, 2000 and terminating on October 31, 2000 (the "Final Option
Period");
d. Preferred Stock. The Options shall be exercisable into shares of
a newly issued class of VideoDome's preferred stock (the
"Preferred Stock"). As a condition to the exercise of the Initial
Option by Bickhams, VideoDome shall amend its certificate of
incorporation to authorize Preferred Stock which: (i) except as
set forth below, shall vote along with the common stock and any
other classes of preferred stock of VideoDome on all matters;
(ii) shall have a liquidation preference equal to the exercise
price of such shares plus accrued and unpaid dividends thereon
(the "Liquidation Preference"); (iii) shall contain provisions
which would entitle the holder of the Preferred Stock to receive
a distribution pro-rata with the holders of the common stock of
VideoDome after payment of the Liquidation Preference; (iv) shall
be senior to that of all other classes of common or preferred
stock of VideoDome; (v) shall to the extent of the Liquidation
Preference, shall have a priority over the payment of any
dividend or distributions to any other class of common or
preferred stock; and (vi) shall contain such other terms and
conditions, including class voting rights and anti-dilution
provisions, as may be necessary to protect the rights of the
holders of the Preferred Stock;
e. Fully-Diluted Basis. For the purposes of this Agreement on a
"fully-diluted basis" shall include all shares of capital stock
of VideoDome which are authorized or which have been issued and
outstanding or which may issuable at any time as a result of any
agreement, understanding, instrument or right which is in effect
as of the date hereof or at any time prior to the expiration or
termination of the Options, including but not limited to capital
stock of VideoDome which may be issued upon the exercise of any
warrant, option or other security or the conversion of any note
or other instrument. Capital stock shall include all classes or
series of common stock and preferred stock which may be
authorized for issuance by VideoDome,;
f. Restrictions on the Issuance of Capital Stock. Prior to the
exercise or the expiration or termination of the Final Option:
(i) VideoDome may not issue, authorize for issuance enter into
any agreement for the issuance of any other shares of its capital
stock or agree to issue any instrument or security which is
convertible or exercisable into its capital stock without the
expressed written agreement of Bickhams or (ii) the current
shareholders of
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VideoDome may not sell, transfer, pledge, assign or distribute or
agree to do any of the foregoing with respect to any shares or
rights to acquire capital stock of VideoDome owned or controlled
by them; and
g. Due Diligence; Audit. Prior to the exercise or expiration or
termination of the Final Option, Bickhams shall be entitled to
undertake such business, financial and other due diligence on
VideoDome as it deems necessary and appropriate and VideoDome
agrees to cooperate fully with such due diligence; including but
not limited to allowing Bickhams and its representatives or
agents access to VideoDome's books and records, personnel,
accountants and legal representatives. In addition, during this
period Bickhams shall, at its expense, be entitled to have the
financial books and records of VideoDome audited by an
independent certified accounting firm of its choice; provided
however, in the event Bickhams exercises the Initial Option, it
shall be entitled to deduct the fees and expenses of such
accounting firm from the exercise price of the Initial Option.
2. Xxxx Arial Participation. Subject to the exercise by Bickhams of the
Final Option, VideoDome agrees to pay to Xxxx Arial ("Arial") in exchange for
and in lieu of any rights to common stock or equity in VideoDome a "Distribution
Share" and a "Sale Bonus" , as defined below (the "Arial Distributions"). The
terms of the Arial Distributions shall be as follows:
a. Arial shall receive a "Distribution Share", as hereinafter
defined, in the event any "Dividends", as hereinafter defined,
are hereinafter paid or distributed to the shareholders of
VideoDome;
b. the Distribution Share shall only be payable to Arial in the
event VideoDome makes a payment in cash or property (but not in
stock of VideoDome) to its shareholders in general as a dividend
or distribution after the exercise by Bickhams of any of its
Options (the "Dividend"); in which case the Distribution Share
due Arial will be payable at the same time and in the same manner
as the Dividend;
c. in the event no Dividend is paid to VideoDome's shareholders
during any year, Arial's rights to any Distribution Share for
that year shall be null and void and shall not be added to or
aggregated with any Distribution Share paid in a subsequent year;
d. in addition to the Distribution Share, Arial shall be entitled to
receive from VideoDome the "Pro-Rata Share", as hereinafter
defined, of the proceeds actually received by its shareholders
from a "Sale Transaction", as hereinafter defined. For the
purposes
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hereof the "Pro-Rata Share" shall be equal to the product of the
total consideration distributed to the holders of capital stock
of VideoDome in connection with such Sale Transaction multiplied
by the "Applicable Percentage", as hereinafter defined;
e. for the purposes of this Agreement, the Distribution Share shall
be equal to the Applicable Percentage multiplied by the aggregate
amount of the Dividend being distributed to all of the
shareholders of VideoDome;
f. for the purposes of this Agreement the Applicable Share shall
initially be four percent (4%)(the "Initial Percentage");
provided however, in the event Arial has received of any prior
payments of the Pro-Rata Share, the Applicable Share shall prior
to any subsequent payment of any subsequent Distribution Share or
Pro-Rata Share, be adjusted to reflect such payments, so that the
Applicable Share then in effect shall be equal to the product of
the Initial Percentage multiplied by a fraction the numerator of
which is the number of shares of VideoDome capital stock
outstanding as of the date hereof plus such additional shares as
may be applicable to include the exercise of the Options (with
each share of Preferred Stock, other preferred stock and common
stock each being treated as one share) (the "Initial Shares") and
the denominator of which is equal to the number of shares of
VideoDome capital stock outstanding at the time of the Dividend
or immediately preceding the consummation of next Sale
Transaction, as the case may be (excluding any shares that have
been issued or retired as a result of stock splits, stock
dividends, reverse stock splits or similar transactions) (the
"Outstanding Shares"). In the event the shareholders of VideoDome
receive consideration other than cash, Arial shall receive, at
the VideoDome's discretion, either such consideration or its
value in cash;
g. for the purposes hereof a "Sale Transaction" shall be defined as
a transaction or a series of related transactions pursuant to
which: (aa) all or substantially all of the outstanding capital
stock of VideoDome is sold; or (bb) VideoDome's merger with or
into a another entity the result of which is that the holders of
VideoDome's outstanding capital stock immediately prior to the
consummation of the transaction(s) do not own a majority of the
capital stock in the surviving entity immediately following the
transaction. Notwithstanding anything to the contrary contained
elsewhere herein, no transaction shall be considered a Sale
Transaction unless the definitive agreement with respect to such
transaction is entered.
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h. for the purposes of this Agreement, the determination by
VideoDome of the Distribution Share or the Pro-Rata Share shall
be final and binding on Arial. In addition, nothing contained
herein shall require VideoDome to declare or pay a Dividend
during any year in which a Distribution Share would thereupon
become due; the determination as to whether or not VideoDome
shall declare or pay a Dividend shall remain within the sole
discretion of VideoDome's Board of Directors.
i. Arial hereby agrees that his rights to the Arial Distributions as
set forth in this Section 2 shall be in exchange for and in lieu
of any rights Arial may have against VideoDome to common stock,
equity securities or other form of ownership in VideoDome, or any
royalties, bonuses or any other form of compensation which has
been earned or accrued from VideoDome, through the date of the
exercise of the Final Option. Arial agrees to execute a full
release of such rights at such time as Bickhams exercises the
Final Option.
3. Xxxxxxx'x Right of First Negotiation and First Refusal. In the event
Bickhams exercises the Final Option, Bickhams shall have a right of "first
negotiation" as hereinafter defined and "first refusal" as hereinafter defined
in connection with any future (a) sale, transfer or assignment of equity
securities by the current shareholders of VideoDome (the "Transfer") or (b)
financing or capital infusion (of debt and/or equity) of VideoDome or any of its
subsidiaries (the "Financing"). For the purposes hereof, in the event the
applicable party(ies) desires to initiate solicitation of offers for a Transfer
or Financing or such party(ies) receives an unsolicited offer for and Transfer
or Financing, such party(ies) shall first submit to Bickhams in writing a term
sheet outlining material terms and conditions of such Transfer or Financing or a
copy of the unsolicited offer. In addition, the applicable party(ies) agrees to
negotiate in good faith with Bickhams for a period of no less than 30 days to
reach a commitment from Bickhams for the Transfer or Financing acceptable to
them. In the event the parties are unable to reach such commitment within 30
days, the party(ies) shall thereafter be entitled to negotiate the terms of a
Transfer or Financing with third parties (the "Right of First Negotiation").
Thereafter, in the event such party(ies) receives definitive written agreement
binding a third party with respect to any Transfer or Financing, they shall
submit a copy of such written agreement or offer to Bickhams and Bickhams shall
have a period of 30 days during which it may elect to agree to such Transfer or
Financing on the terms and conditions set forth in the written agreement
(subject only to such modification as may be necessary to reflect the passage of
time and the commitment by Bickhams in lieu of the original party) (the "Right
of First Refusal"). In the event Bickhams fails to exercise its Right of First
Refusal, the applicable party(ies) may proceed to consummate the proposed
Transfer or Financing with the offeror; provided that the Transfer or Financing
transaction is consummated on substantially identical terms as submitted to
Bickhams and within a period of no less than 60 days after the expiration of the
Right of First Refusal.
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4. Management and Board of Directors. In the event Bickhams exercises its
Second Option:
a. the VideoDome Board of Directors ("Board") shall be reconstituted
so that there are four members, two of whom shall be designated
by Bickhams and two of whom shall be designated by the other
shareholders of VideoDome; , provided however, in the event that
the Board of Directors is deadlocked on any matter, any Director
may upon no less than 10 days prior notice call a meeting of the
Board to elect a neutral Director and during the 10 day period
the parties would diligently seek to agree on a mutually
acceptable Director. If one cannot be agreed upon prior to the
meeting the provisions of section 7 below shall prevail. Any
neutral Director selected pursuant to this subsection a, shall
serve for a term ending upon his vote in all then pending
deadlocked matters.
b. the parties shall enter into a voting trust agreement in form and
substance reasonably acceptable to Bickhams and its counsel which
shall provide that the Board shall continue to consist of four
members, two of whom are elected by Bickhams and two of whom are
elected by the remaining shareholders of VideoDome until the
first to occur of either of the following: (i) Bickhams fails to
exercise the Final Option; or (ii) additional shares of voting
securities of VideoDome are issued, except as a result of stock
split, stock dividends, reverse stock splits and similar
transactions or upon the exercise of employee stock options;
c. VideoDome shall enter into three year employment agreements with
Xxxxxx and Xxxxxx Xxxxxxxxx (collectively, the "Aharonoffs") in
form and substance acceptable to Bickhams which shall provide for
aggregate monthly compensation to the Aharonoffs not to exceed
$15,000 and a covenant not to compete and stock buy-back option;
and following the exercise of the Final Option, this aggregate
monthly compensation to the Aharonoffs shall be increased to not
more than $23,000.
d. So long as Bickhams or its affiliates own or control at least ten
percent (10%) of VideoDome's voting stock, VideoDome agrees to
provide it with: (i) financial statements as of and for its
fiscal year ended December 31 which have been audited by an
independent certified public accountant (the "Accountant")
reasonable acceptable to Bichkams (the "Audited Financials") and
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(ii) financial statements as of and for its fiscal quarters ended
March 31, June 30 and September 30 on an unaudited basis which
have been reviewed by the Accountant (the "Quarterly
Financials"). The Audited Financials shall be provided to
Bickhams no later than sixty days after the end of VideoDome's
fiscal year and the Quarterly Financials no later than 30 days
after the end of each fiscal quarter.
5. Australian Joint Venture. In the event Bickhams exercises the Second
Option, VideoDome agrees to allow Bickhams or its designee to establish an
Australian corporation which shall be owned 50% by the Aharonoffs and 50% by
Bickhams or its designee (the "Australian JV"). Videodome further agrees that
the Australian JV shall be granted a full and perpetual license to market
VideoDome's services and products in Australia and the South Pacific Ocean
region, to utilize any VideoDome trademarks, service marks, and/or patents in
such region and to further develop VideoDome products and concepts for marketing
and sale in this region. The parties hereto, agree that Bickhams (or its
designee) and the Aharonoffs shall be equally responsible for providing the
necessary capital and/or financing required for the Australian JV.
6. I.T. Technology Board Approval. The effectiveness of this Agreement
shall be subject to and conditioned upon the approval of Xxxxxxx'x parent
company's I.T. Technology, Inc., Board of Directors.
7. Adjudication of Disputes. Any controversy, dispute or claim arising out
of or relating to this Agreement (including, but not limited to, any claim
regarding the scope or effect of this Section and any claim that this Section is
invalid or unenforceable), or the breach hereof or thereof or for tortious
actions or any other action or failure to act under common law or statute
(collectively, hereinafter the "Dispute"), shall be adjudicated in the United
States District Court for Central District of California located in the County
of Los Angeles (the "Federal Court"). The parties hereto expressly consent to
submit too the jurisdiction of such Federal Court and expressly acknowledge,
understand and agree to waive any claim to a jury trial with respect to
resolution of any Dispute under this Agreement. The Federal Court shall be
entitled to award the legal and other professional fees and costs incurred in
connection with such proceedings in accordance with its view of the merits of
the parties' respective positions in the Dispute.
8. Representations and Warranties of VideoDome.
a. The authorized capital stock of VideoDome consists of 10,000
shares of ____ par value Common Stock of which 2,000 shares are
outstanding. Each outstanding share of Common Stock has been duly
authorized, validly issued, fully paid, and nonassessable, has
not been issued and is not owned or held in violation of any
preemptive rights of stockholders, and are owned of record and
beneficially by Xxxxxx and Xxxxxx Xxxxxxxxx free and clear of all
liens, security interests, pledges, charges, encumbrances,
stockholders' agreements, and voting trusts. There is no
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commitment, plan, or arrangement to issue, and no outstanding
option, warrant, or other right calling for the issuance of, any
share of capital stock of VideoDome or any security or other
instrument which by its terms is convertible into, exercisable
for, or exchangeable for capital stock of the VideoDome, except
as may be contemplated by this Agreement. There is outstanding no
security or other instrument, which by its terms is convertible
into or exchangeable for capital stock of VideoDome.
b. VideoDome is a corporation duly organized, validly existing, and
in good standing under the laws of California. VideoDome is duly
qualified to do business and is in good standing in every
jurisdiction in which its ownership, leasing, licensing, or use
of property and assets or the conduct of its business makes such
qualification necessary.
c. VideoDome has all requisite power and authority to execute,
deliver, and perform this Agreement. All necessary corporate
proceedings of VideoDome have been duly taken to authorize the
execution, delivery, and performance of this Agreement by it.
This Agreement has been duly authorized, executed, and delivered
by VideoDome, is the legal, valid, and binding obligation of
VideoDome, and is enforceable as to VideoDome in accordance with
its terms.
9. Injunctive Relief; Specific Performance. Anything to the contrary
contained herein, the parties hereto expressly acknowledge and agree that any
breach of Sections 1,3,4 or 5 of this Agreement may subject Bickhams to
irrevocable harm in an amount which would be impossible to determine;
accordingly, VideoDome hereby expressly agrees that Bickhams shall be entitled
to seek injunctive relief and or specific performance in the event or anticipate
breach by VideoDome of such provisions.
10. Miscellaneous.
a. This Agreement shall be binding upon and shall inure to the
benefit of and be enforceable against the parties and their
respective successors and assigns.
b. This Agreement is made and entered into in the State of
California and shall be interpreted and enforced under and
pursuant to the laws of said jurisdiction without regard to the
principles of conflicts of laws.
c. Wherever in this Agreement the context may require, the masculine
gender shall be deemed to include the feminine and/or neuter, and
the singular to include the plural.
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d. All notices and other communications required to be given under
the terms of this Agreement or which any of the parties may
desire to give hereunder shall be in writing and delivered
personally or sent by express delivery, or by facsimile, or by
registered or certified mail, with proof of receipt, postage and
expenses prepaid, return receipt requested, addressed as follows:
If to the Bickhams: Bickhams, Inc,
c/o I.T. Technology Pty., Ltd.
00-00 Xxxx Xxxx
Xxxxxxx 0000
Xxxxxxxxx, XXXXXXXXX
Attention: Xxxxxxxx Xxxxxx
Fax No.: 000-000-0000-0000
with a copy to: Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
If to VideoDome: VideoDome Com Networks, Inc.
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Its Chief Executive Officer
Fax No.: (000) 000-0000
or to such other address or addresses and to the attention of
such other person or persons as any of the above parties may from
time to time designate through notice as set forth in this
Section 10 (d). Any notice given in accordance with this Section
10 (d) shall be deemed to have been given when delivered
personally, or on the next business day if sent via express or
overnight delivery, or upon electronic confirmation if sent via
facsimile, or upon receipt of return receipt if sent via U.S.
registered or certified mail, return receipt requested.
e. This Agreement has, in all respects, been voluntarily and
knowingly executed by the parties hereto on advice and with
approval of their respective legal counsel. All parties have
participated in the drafting of this Agreement. Accordingly, no
rule of construction shall apply against any party or in favor of
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any party, and any uncertainty or ambiguity shall not be
interpreted against any party and in favor of another.
f. VideoDome shall not make a public announcement of the terms of
this Agreement without approval of the other parties, unless
required by law or by applicable stock exchange requirements, and
in any event VideoDome shall provide notice accompanied by a copy
of all proposed announcements to Bickhams.
g. This Agreement represents the entire contract, agreement and
understanding between the parties with respect to the subject
matter hereof and, except as expressly provided herein, supersede
all offers, proposals, statements, representations and agreements
with respect to the subject matter hereof.
h. The captions to the Sections contained in this Agreement are for
reference only, do not form a substantive part of this Agreement
and shall not restrict nor enlarge any substantive provision of
this Agreement.
i. The invalidity or unenforceability of any provision of this
Agreement shall not affect the other provisions hereof, and the
Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted. Furthermore, upon the
request of any party hereto, the parties to this Agreement shall
add, in lieu of such invalid or unenforceable provisions,
provisions as similar in terms to such invalid or unenforceable
provisions as may be possible with altering the substantive
rights of any party and which are legal, valid and enforceable.
j. This Agreement may not be modified, amended or supplemented
except by mutual written agreement of the each of the parties
hereto. Notwithstanding the foregoing, any of the parties hereto
may waive in writing any term or condition contained in this
Agreement that are intended to be for such party(ies) own
benefit; provided, however, that no waiver by any party, whether
by conduct or otherwise, in any one or more instances, shall be
deemed or construed as a further or continuing waiver of any such
term or condition or a waiver with respect to any other party who
has not agreed in writing to such waiver.
k. The Section headings contained in this Agreement are solely for
convenience and shall not be considered in its interpretation.
l. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument,
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provided that all such counterparts, in the aggregate, shall
contain the signatures of all parties hereto.
m. VideoDome acknowledges that Bickhams has advised VideoDome to
seek the advice of counsel in connection with VideoDome's rights
with respect to this Agreement. In connection with the foregoing,
VideoDome and Bickhams acknowledge that the Company has been
represented by its outside counsel, the firm of Jeffer, Mangels,
Xxxxxx & Marmaro LLP ("JMBM") in connection with the negotiation,
documentation and execution of this Agreement. The VideoDome
further acknowledges and agrees that JMBM has represented only
the interests of the Bickhams in connection with this Agreement
and has not represented the VideoDome.
n. This Agreement shall not be terminated by the voluntary or
involuntary dissolution of VideoDome or by any merger,
reorganization or other transaction in which VideoDome is not the
surviving or resulting corporation or upon any transfer of all or
substantially all of the assets of VideoDome in the event of any
such merger, or transfer of assets. The provisions of this
Agreement shall be binding upon and shall inure to the benefit of
the surviving business entity or the business entity to which
such assets shall be transferred in the same manner and to the
same extent that VideoDome would be required to perform it if no
such transaction had taken place.
o. A waiver by either party of any term or condition of this
Agreement or any breach thereof, in any one instance, shall not
be deemed or construed to be a waiver of such term or condition
or of any subsequent breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Option
Agreement as of the day and year first written above.
BICKHAMS CAPITAL, INC.
/s/ XXXXXXXX XXXXXX
----------------------------------
By: Xxxxxxxx Xxxxxx
-------------------------------
Its Chief Financial Officer
------------------------------
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XXXXXXXXX.XXX NETWORKS, INC.
/s/ XXXXXX XXXXXXXXX
--------------------------------
By: Xxxxxx Xxxxxxxxx
Its: Chief Executive Officer
SOLELY AS TO SECTION 2 ABOVE:
AGREED TO AND ACCEPTED THIS 21st
DAY OF MARCH, 2000.
/s/ XXXX ARIAL
--------------------------------
By: Xxxx Arial
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