EXHIBIT 10.35
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT COVERING SUCH SECURITIES, (II) THE SALE IS MADE IN ACCORDANCE WITH RULE 144
UNDER THE ACT, OR (III) THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE
HOLDER OF THESE SECURITIES REASONABLY SATISFACTORY TO THE COMPANY STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT.
OPTION AGREEMENT
This Option Agreement (the "Agreement") is entered into as of September
3, 2002 (the "Grant Date") between SVI Solutions, Inc., a Delaware corporation
(the "Company") and Xxxxxx Xxxx (the "Optionee") as follows:
1. RECITALS
1.1 The Board of Directors of the Company authorized the granting of
this Option to Optionee. The option granted by this Agreement is intended to
constitute a non-qualified stock option, meaning an option which is not an
"incentive stock option" within the meaning of Section 422 of Internal Revenue
Code of 1986, as amended.
2. DEFINITIONS
In addition to those words and phrases defined above and unless
otherwise required by the context in which they appear, words and phrases having
their initial letters capitalized shall have the following meanings:
"Agreement" means this Option Agreement (including any schedules,
attachments, documents incorporated by reference or modifications agreed to in
writing by the Company and Optionee) which sets forth the parties' rights and
obligations with respect to the Option.
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission of the United
States.
"Expiration Date" means September 3, 2005.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Option" means the right of Optionee to purchase 2,000,000 (two
million) shares of Stock in accordance with the terms and conditions of this
Agreement.
"Option Price" means $0.28 per share of Stock to be paid by the
Optionee upon exercise of the Option.
"Option Stock" means the shares of Stock Optionee shall be entitled to
purchase pursuant to this Agreement.
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"Registration Expenses" shall have the meaning ascribed to that phrase
in Section 6.1 below.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Stock" means the $0.0001 par value common stock of the Company.
"Term" means the period commencing on the Grant Date and continuing
until the Expiration Date.
3. OPTION
3.1 GRANT. The Company hereby grants to Optionee the Option to purchase
all or any part of the Option Stock on the terms and conditions set forth in
this Agreement.
3.2 PURCHASE PRICE. The purchase price per share of Stock to be paid
upon the exercise of this Option shall be the Option Price.
3.3 RESTRICTIONS ON TRANSFER. This Option shall not be transferable by
Optionee other than to by will or the laws of descent and distribution. Any
permitted transferee shall also be referred to as Optionee. Upon any attempt to
sell, assign, encumber or otherwise transfer this Option in violation of this
Agreement, or upon the levy of any attachment or similar process upon this
Option, this Option shall immediately become null and void.
3.4 CHANGES IN EQUITY STRUCTURE; RECAPITALIZATION. If any change is
made in the Stock (through merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or otherwise), the Option will be appropriately adjusted
in the number of shares and price per share of Stock. In the event of: (a) a
merger or consolidation in which the Company is not the surviving corporation or
(b) a reverse merger in which the Company is the surviving corporation but the
shares of Stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, then, at the sole discretion of the Board and to the extent
permitted by applicable law: (i) any surviving corporation shall assume the
Option or shall substitute a similar stock option in its stead, or (ii) the
Option shall continue in full force and effect.
Notwithstanding any provision of this Agreement, the Company reserves
the right to:
(a) Make or enter into any adjustments, reclassifications,
reorganizations or changes of its capital or business
structure;
(b) Merge or consolidate with other entities; or
(c) Dissolve, liquidate or sell or transfer any or all of its
business or assets.
3.5 STOCKHOLDER'S RIGHTS. Optionee shall have no rights as a
stockholder with respect to any shares of Stock Optionee is entitled to purchase
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under this Option until the date of the issuance of a certificate for the shares
of Stock. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such certificate is issued,
except as provided in this Agreement.
4. EXERCISE
4.1 EXERCISE OF OPTION. During the Term Optionee shall be entitled to
exercise all or any part of the Option at any time during the term of the
Option.
4.2 EXPIRATION OF EXERCISE RIGHTS. In no event shall this Option be
exercisable after the Expiration Date.
4.3 EXERCISE PROCEDURE. The Option shall be exercised by the giving of
written notice to the Company (in a form designated by the Company) specifying
the number of shares of Stock to be purchased, accompanied by the payment of the
aggregate Option Price for the shares of Option Stock being purchased, such
payment to be made in any combination of:
(a) United States cash currency;
(b) a cashier's or certified check to the order of the
Company;
(c) a personal check acceptable to the Company;
(d) a "cashless exercise" in which the Optionee shall be
entitled to receive a certificate for the number of
Option shares equal to the quotient obtained by
dividing [(C-B)*A] by (C), where:
A = the number of Option shares issuable upon
exercise of this Option;
B = the Exercise Price of this Option; and
C = the closing price of SVI common share on
the date of exercise.
4.4 LEGENDS. Certificates representing Stock acquired upon exercise of
this Option may contain such legends and transfer restrictions as the Company
shall deem necessary or desirable to assure the satisfaction of any liability
that the Company may or will have incurred for any withholding of federal, state
or local income, employment or other taxes, to facilitate compliance by the
Company with any federal or state laws or regulations, including, without
limitation, legends restricting transfer of the Stock until there has been
compliance with federal and state securities laws or such other restrictions as
may be imposed on the Stock under the terms of this Agreement.
5. INVESTMENT INTENT
This Option is granted on the condition that Optionee's purchase of
Option Stock shall be for investment purposes and not with a view to resale or
distribution. This Option may not be exercised unless the shares issuable upon
exercise of this Option are then registered under the Securities Act or, if such
shares are not then registered under the Act, the Company has determined that
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such exercise and issuance would be exempt from the registration requirements of
the Securities Act.
6. REGISTRATION RIGHTS. For a period commencing on the Grant Date and ending on
September 3, 2005, Optionee shall have the incidental ("piggyback") registration
rights with respect to the Option Stock as set forth in this Article 6.
6.1 If the Company proposes to register any of its Stock under the
Securities Act (other than a registration effected solely to implement an
employee benefit plan, a transaction to which Rule 145 of the Commission is
applicable or any other form or type of registration in which the Stock cannot
be included pursuant to Commission rule or practice) the Company will give
written notice to Optionee of its intention to do so. If such registration is
proposed to be on a form which permits inclusion of Stock, upon the written
request (stating the intended method of disposition of the Option Stock) of
Optionee given within fifteen (15) days after transmittal by the Company to
Optionee of such notice, the Company will, subject to the limits contained in
this Section 6.1, use its best efforts to cause all shares of Option Stock of
Optionee (provided the Option is exercised as a condition of such registration),
to be included in such registration to the extent requisite to permit such sale
or other disposition by Optionee so registered; provided, however, if the
underwriter managing such registration notifies Optionee in writing that market
or economic conditions limit the amount of securities which may reasonably be
expected to be sold, then the number of shares of Stock to be included in such
registration by Optionee shall be reduced (up to the entire amount thereof as
determined in the sole discretion of the managing underwriter), and further
provided, that the inclusion of such shares of Option Stock in the registration
shall be subject to compliance with the reasonable terms and conditions of any
underwriting agreement respecting the registration.
(a) In connection with any registration where shares of Option
Stock of Optionee are also registered pursuant to the
provisions of this Section, Optionee will cooperate with the
Company and each underwriter (if the method of disposition
shall be an underwritten public offering) and will take all
such actions and execute and deliver all such instruments,
agreements and documents as the Company or any such
underwriter reasonably may request, including, but not limited
to:
A. furnishing to the Company in writing such information
with respect to Optionee and the proposed
distribution by it as reasonably shall be necessary
in order to assure compliance with federal and
applicable state securities laws;
B. immediately notifying the Company, and the managing
underwriter (if the method of disposition shall be an
underwritten public offering), at any time when a
prospectus relating to such registration is required
to be delivered under the Securities Act, of the
happening of an event of which Optionee has knowledge
as a result of which the prospectus contained in such
registration statement, as then in effect, includes
an untrue statement of a material fact regarding
Optionee or omits to state a material fact regarding
Optionee required to be stated therein or necessary
to make the statements therein regarding Optionee not
misleading in light of the circumstances then
existing; and
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C. to agree, upon request of the Company or the
underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short
sale of, loan, grant any option for the purchase of,
or otherwise dispose of any shares of Stock (other
than those included in the registration) without the
prior written consent of the Company or such managing
underwriters, as the case may be, for such period of
time (not to exceed one hundred eighty (180) days)
from the effective date of such registration as the
Company or the managing underwriters, as the case may
be, may specify. Optionee agrees that the Company may
instruct its transfer agent to place stop-transfer
notations in its record to enforce the provisions of
this subsection.
(b) If Optionee disapproves of the terms of any such underwriting,
it may elect to withdraw therefrom by written notice to the
Company and the managing underwriter.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 6.1 prior to
the effectiveness of such registration whether or not Optionee
has elected to include the Option Stock in such registration.
(d) Optionee shall pay the fees and expenses of its own legal
counsel, brokerage commissions payable in respect of shares of
Option Stock sold on behalf of Optionee and other expenses
which are not specifically included in the definition of
Registration Expenses set forth in subparagraph (e) of this
Section 6.1.
(e) Registration Expenses means the following expenses incurred in
effecting the Company's registration of its securities,
including those held by the Optionee, (i) registration and
filing fees, (ii) printing expenses, (iii) underwriting
expense other than fees, commissions or discounts payable in
respect of shares of Optionee Stock sold on behalf of
Optionee, (iv) expenses of any audits incident to or required
by any such registration and expenses of complying with the
securities or blue sky laws of any jurisdiction, and (v) the
Company's legal fees and specifically excludes attorneys,
accountants or broker's fees of Optionee.
(f) The Company will indemnify and hold harmless Optionee and each
person, if any, who controls Optionee within the meaning of
the Securities Act against any losses, claims, damages or
liabilities (or actions in respect thereof), joint or several,
to which Optionee or such controlling person may become
subject, under the Securities Act, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
are caused by any untrue statement or alleged untrue statement
of any material fact contained, on the effective date thereof,
in any registration statement under which Optionee's Option
Stock were registered under the Securities Act, any prospectus
contained therein, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and will reimburse Optionee and each such
controlling person for any legal or other expenses reasonably
incurred by Optionee or such controlling person in connection
with defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable
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in any such case to the extent that any such loss, claim,
damage, expense or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with written
information furnished by Optionee in writing for use in the
preparation thereof.
Optionee will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed such registration statement, and
each person, if any, who controls the Company, within the meaning of the
Securities Act, against any losses, claims, damages or liabilities to which the
Company, or any such director, officer, or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) are caused by any untrue or
alleged untrue statement of any material fact contained in such registration
statement, any prospectus contained therein, or amendment or amendments or
supplements thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
conformity with written information furnished by Optionee for use in the
preparation thereof; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, or controlling person in
connection with defending any such loss, claim, damage, liability or action.
Promptly after receipt by an indemnified party pursuant hereto of
notice of any claims to which indemnity would apply or the commencement of any
action, such indemnified party will, if a claim thereof is to be made against
the indemnifying party pursuant hereto, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than hereunder. In case such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party.
6.2 NOTICES OF CERTAIN EVENTS. The Company agrees to review its stock
ledgers, stock transfer books and other corporate records periodically (and not
less often than once in each calendar quarter) in order to determine whether
Optionee is or shall have become, solely due to its ownership of the Option,
directly or indirectly, the beneficial owner of more than such percentage of any
class of its equity securities (as defined in the Exchange Act) as shall cause
Optionee to be required to make any filings or declarations to the Company, the
Commission, any national securities exchange or any other party pursuant to the
provisions of the Exchange Act or any comparable federal statute.
7. NOTICES
7.1 IN WRITING. All notices, demands, requests, or other communications
permitted or required under this Agreement or applicable law shall be in
writing.
7.2 DELIVERY. All such communications may be served personally or may
be sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to either Optionee or the Company at the addresses
appearing beneath the respective party's signature to this Agreement, or at such
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other address as either party shall have communicated to the other pursuant to
this Section. All such communications shall be deemed effectively delivered upon
personal service or three (3) days after deposit in the United States Mail.
8. MISCELLANEOUS
8.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall inure to the benefit of only the Company, Optionee and their
respective successors or assigns.
8.2 SEVERABILITY. If any provision or provisions of this Agreement are
adjudged to be for any reason unenforceable, illegal or void, the remainder of
its provisions shall remain in full force and effect.
8.3 INTEGRATION. This Agreement constitutes the entire understanding of
the parties concerning the Option granted hereby. Except as otherwise provided,
any changes, modifications, or variations to this Agreement or the Option are
invalid unless stated in writing and executed by the Company and Optionee.
8.4 GOVERNING LAW. This Agreement and the Option granted hereby shall
be governed by the laws of the State of California. Any action to enforce or
interpret this Agreement shall be brought in the federal or state courts
situated in San Diego County, State of California,
8.5 ATTORNEYS FEES. If either party brings an action or seeks to
enforce or interpret any of the terms or provisions of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
costs in addition to any other remedy it may be awarded.
8.6 COUNTERPARTS. This Agreement may be executed in counterparts which
shall constitute the whole instrument.
8.7 TITLES FOR CONVENIENCE; GENDER AND PLURALS. Titles of articles and
paragraph headings are for convenience only and shall not affect the
construction or interpretation of this Agreement, or any portion thereof.
Whenever required by the context hereof, the singular shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter, and
vice versa.
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Executed to be effective as of the Grant Date:
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Signature
By: XXXXXX XXXX
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Title:
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Address
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City State Zip Code
SVI SOLUTIONS, INC.
Signature
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By: XXXXX X. XXXXXXXXX
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Its: CHIEF EXECUTIVE OFFICER
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0000 Xxxxxx Xxx,
Xxxxxxxx, Xxxxxxxxxx 00000
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NOTICE OF EXERCISE
This constitutes notice under the appended Option Agreement that I elect to
purchase the number of shares for the price set forth below.
Number of shares as
to which option is
exercised: ___________________
Certificates to be
issued in name of: ___________________
Total exercise price $___________________
Cash payment delivered
herewith: $___________________
I hereby make the following certifications and representations with
respect to the number of shares of Common Stock of the Company listed above (the
"Shares"), which are being acquired by me for my own account upon exercise of
the Option as set forth above:
I warrant and represent to the Company that I have no present intention
of distributing or selling the Shares, except as permitted under the Securities
Act of 1933 and any applicable state securities laws.
I further acknowledge that all certificates representing any of the
Shares subject to the provisions of the Option shall have endorsed thereon
appropriate legends reflecting the foregoing limitations, as well as any legends
reflecting restrictions pursuant to the Company's Articles of Incorporation,
Bylaws and/or applicable securities laws.
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(Name)
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