EXHIBIT 10.1
DATAMEG CORP.
OPTION AGREEMENT
This Option Agreement (the "Agreement) sets forth the terms under which
Xxxx X. XxXxxxx (the "Subscriber") agrees to render certain services on behalf
of Datameg Corporation, a New York corporation (the "Company") in exchange for
options to purchase shares of the Company's Common Stock.
WHEREAS, the Company has engaged the subscriber to perform certain services in
connection with Company operations; and;
WHEREAS, the Subscriber has agreed in exchange and compensation for such
services to accept options to purchase the number of shares of the Company's
Common Stock set forth below in the paragraph entitled "Grant of Options" (the
"Options");
NOW THEREFORE, in connection therewith, the parties set forth hereafter their
understanding and agreement:
THIS AGEEMENT DOES NOT CONSTITUTE AN OFFER (A) BY ANYONE IN ANY JURISDICTION IN
WHICH THE COMPANY IS NOT QUALIFIED TO MAKE SUCH AN OFFER; (B) TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER; OR (C) IN ANY JURISDICTION IN WHICH
SUCH AN OFFER WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION OF THE
SECURITIES DEFINED BELOW.
THE OPTIONS AND THE SHARES OF THE COMPANY'S COMMON STOCK SUBJECT TO SUCH
OPTIONS, SOMETIMES REFERRED TO HEREIN AS THE "SECURITIES", HAVE NOT BEEN
REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATES, AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
CERTAIN EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISION (THE "COMMISSION") AND NO REGULATORY BODY HAS PASSED UPON OR
ENDORSED THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS AGREEMENT OR THE SHARES.
ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. SUBSCRIBERS MUST RELY ON THEIR
OWN EXAMINATION OF THIS AGREEMENT AND AVAILABLE INFORMATION CONCERNING THE
OFFERING, INCLUDING THE MERITS OF, AND RISKS INVOLVED IN ACQUIRING THE
SECURITIES. THE SECURITIES CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY
REGISTERED UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES LAW OR WHERE
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
Execution of this Agreement by the Subscriber shall constitute an agreement by
the Subscriber that he is accepting the Options hereof as compensation for
certain consulting services rendered to the Company on the terms and conditions
specified herein. By executing this Agreement, the Subscriber acknowledges,
accepts, and agrees to be bound by all the terms contained in this Agreement.
Grant of Options: In consideration of the above referenced consulting service to
the Company and for other good and valuable consideration, the Company grants to
the Subscriber the option to purchase Five Million (5,000,000) shares of the
Company's Common Stock (the "Shares") for the Option Price set forth below.
Exercise Price: The purchase price of the Shares subject to the Options shall
be: $0.17 per share ("Exercise Price").
Subscription and Consideration for Shares: The Subscriber hereby subscribes for
the Options in consideration for the Subscriber's services to the Company, as
described above.
Manner of Exercise: The Options or any portions of the Options shall be
exercised only in accordance to the provisions of this Agreement. The person
exercising the Options shall give to the Company a written notice ("Exercise
Notice") that shall (a) state the number of Shares with respect to which the
Options are being exercised; and (b) specify a date (other than Saturday, Sunday
or legal holiday) not more than ten days after the date of such written notice,
as the date on which the Shares will be purchased. Such tender and conveyance
shall take place at the principal office of the Company during ordinary business
hours, or at such other hour and place agreed upon by the Company and the person
or persons exercising the Option. On the date specified in such written notice,
the Company shall accept payment for the Shares being purchased in cash, by bank
or certified check, by wire transfer, or by such other means as may be approved
by the Company, and shall deliver to the person or persons exercising the
Options in exchange therefore an appropriate certificate or certificates for
fully paid non-assessable shares or undertake to deliver certificates within a
reasonable period of time. In the event of any failure to take up and pay for
the number of Shares specified in the Exercise Notice on the date set forth
therein (or on the extended date as provided above), the right to exercise the
Options shall terminate with respect to such number of Shares, but shall
continue with respect to the remaining Shares covered by the Options and not yet
acquired pursuant thereto. Upon receipt by the Company of an Exercise Notice,
the Company shall file within one business day a Form S-8 with the United States
Securities and Exchange Commission registering the Shares for resale.
Notwithstanding any provisions herein to the contrary, in lieu of exercising the
Options as hereinabove permitted, the Subscriber may elect to exercise the
Options or a portion thereof and to pay for the Shares issuable upon such
exercise by way of cashless exercise by electing such a cashless exercise in the
Exercise Notice, in which event the Company shall issue to the Subscriber that
number of Shares computed using the following formula:
X= Y x (A-B)/A
Where:
X equals the number of Shares to be issued to the Subscriber;
Y equals the number of Shares purchasable pursuant to the Option, or, if only a
portion of the Option is being exercised, the portion of the Option being
exercised at the date of such calculation;
A equals the Fair Market Value (at the date of such calculation) of one share of
common stock, $.0001 par value per share (the "Common Stock"), of the Company;
and
B equals the Exercise Price.
The person who exercises the Option shall warrant to the Company that, at the
time of such exercise, such person is acquiring his Option Shares for investment
and not with a view to, or for, or in connection with, the distribution of any
such Shares, and shall make such other representations, warranties,
acknowledgements and affirmations, if any, as the Company may require. In such
event, the person acquiring such Shares shall be bound by the provisions of an
appropriate legend, which shall be endorsed upon the certificate(s) evidencing
his or her Shares issued pursuant to such exercise. The Company may delay
issuance of the Shares if completion of any corporate action or required consent
is not obtained that the Company deems necessary under any applicable law.
Conditions to Issuance of Stock Certificates: The share of stock deliverable
upon the exercise of the Option, or any portion thereof, may be previously
authorized, but issued or un-issued shares, which have been reacquired by the
Company. Such shares shall be fully paid and non-assessable.
Rights of Shareholders: The Subscriber shall not be, nor have any of the rights
or privileges of a shareholder of the Company in respect to any shares
purchasable upon exercise of any part of the Options unless and until
certificates representing such shares have been issued by the Company to the
Subscriber.
Exercise and Duration: Except as specified below, the Options may be exercised
at any time until their expiration as of April 17, 2010. Notwithstanding the
foregoing, in the case of the Subscriber's death, the Options shall expire on
the one-year anniversary of the Subscriber's death.
Transfer of Option: Unless otherwise permitted by applicable law and approved
in writing in advance by the Company, the Option shall not be transferable by
the Subscriber and shall be exercisable during the Subscriber's lifetime, only
by such Subscriber or his or her guardian or legal representative in the event
of the Subscriber's incapacity.
Shares to be Reserved: The Company shall at all times during the term of the
Option reserve and keep available such number of shares of stock as will be
sufficient to satisfy the requirements of this Agreement.
Subscriber's Representations, Warranties and Covenants: The Subscriber
represents, warrants to and covenants with the Company as follows:
The Subscriber is purchasing the Securities solely for his own account, for
investment purposes only and not with an intent to divide his participation with
others, resell, or otherwise dispose of all or any part of such investment.
The Subscriber will be the beneficial owner of the Securities standing in the
Subscriber's name.
The Subscriber has been furnished with the sufficient written and oral
information about the Company to allow him to make an informed investment
decision prior to purchasing the Investment and has been furnished access to any
additional information that he may require.
The Subscriber is fully familiar with the business proposed to be conducted by
the Company and with the Company's use and proposed use of the proceeds from the
sale of Securities.
The Subscriber has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the investment.
The Subscriber is able to bear the economic risk of losing his entire investment
The Subscriber is knowledgeable and has experience concerning investments of the
type represented by the investment.
The Subscriber agrees to hold the Company, its agents, managers, and their
respective successors and assigns harmless and to indemnify them against all
liabilities, cost and expenses incurred by them as a result of any sale or
distribution by the Subscriber in violation of the Act or any state securities
laws. All representations, warranties and indemnities made by the Subscriber
with reference to the Act shall be deemed to be equally applicable in connection
with all applicable state and securities laws.
As set forth above, the Subscriber understands that the Securities have not been
registered under the Act, or under any state exempt from registration. The
Subscriber further acknowledges that the reliance on such exemptions is in part
based upon the foregoing representations, warranties and covenants of the
Subscriber.
Survival of Representations, Warranties, Covenants and Agreements: The
representations, warranties, covenants and agreements contained herein shall
survive the delivery of and the payment for the Securities.
Notices: Any and all notices, designations, consents, offers, acceptances or
any other communication provided for herein shall be given in writing and shall
be either hand delivered or sent by recognized overnight express courier service
or by United States mail (certified, return receipt requested) to the parties at
the following addresses: (i) if to Company, in care of its President (or the
President's delegate in the case of the President's absence, addressed to the
Company's principal place of business and (ii) if to the Subscriber, to the
address appearing below or to such other address as may be designated by the
Subscriber in writing in accordance with this Section. Notice shall be deemed
effective upon receipt or within three (3) days after deposit in the United
States mail (properly addressed with postage prepaid thereon), whichever is
earlier.
General Provisions: This Agreement shall be binding upon and shall insure the
benefit of the parties and their respective successors, assigns, executors and
administrators. This Agreement and the respective and obligations of the parties
may not be assigned by any party without the prior written consent of the other.
This Agreement represents the entire understanding and agreement between the
parties with respect to the subject matter hereof and cannot be amended,
supplemented or modified except by an instrument in writing signed by the party
against whom enforcement of any such amendment, supplement or modification is
sought. The failure of any provision of this Agreement shall not be construed to
be a waiver by such party of any succeeding breach of such provision or a waiver
by such party of any breach of any other provision.
* * * *
Executed and acknowledged by the Subscriber as of
This 17th day of April, 2005
SUBSCRIBER:
Signature: /s/ Xxxx X. XxXxxxx
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Print Name: Xxxx X. XxXxxxx
Address: 0 Xxxx Xxxxxxxx #000
Xxxxxx, XX 00000
The foregoing subscription for Options to purchase 5,000,000 Shares of Common
Stock of DataMEG Corporation, by Xxxx X. XxXxxxx is hereby accepted as of this
17th day of April, 2005
DATAMEG CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Director
