CALL OPTION AGREEMENT
This
CALL
OPTION AGREEMENT (this “Agreement”)
is
made as of this 24th
day of
October, 2006 by and among Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxx Xxxxx, Xxx
Xxxxxx, and MTG, LLC in their individual capacity, jointly and severally
(“Contributors”),
who
constitute the owners of 100% of the issued and outstanding member interests
(the “Units”) of My
Health And Safety Supply Company,
an
Indiana limited liability company, and MH&SC,
Inc.,
a
Delaware corporation (the “Exchange
Issuer,”
and
Exchange Issuer and Contributors together, the “Parties”).
W
I T N E S S E T H :
A. The
Parties have agreed to the Plan of Exchange attached hereto as Exhibit A (the
“Plan”).
B. As
further inducement for Exchange Issuer to enter into and as a condition of
the
Closing of this Agreement and the Plan, Contributors have agreed as a condition
to the closing of the Plan to grant to Exchange Issuer the Call Option (as
defined below).
NOW,
THEREFORE, in consideration of the premises and the mutual promises set forth
in
this Agreement;
THE
PARTIES AGREE AS FOLLOWS:
1. Call
Option.
a. As
a
condition of closing of the Plan, Contributors hereby grant to Exchange Issuer
an option (the “Call
Option”)
to
require Contributors to sell to Exchange Issuer up to 1,000,000 shares of common
capital stock of Exchange Issuer (the “Option
Shares”)
at a
price per share equal to $.13 or an aggregate of $130,000, less any cash
contributions of Exchange Issuer to LLC between the date of closing of this
Agreement and the date of purchase under the Call Option. As a result of the
Exchange Agreement, the LLC shall be a wholly-owned subsidiary of Exchange
Issuer following closing of this Agreement and during the term of this
Agreement.
b. The
Call
Option may only be exercised commencing 18 months after the Closing of this
Agreement (the “Exercise
Period”).
2. Exercise
of the Option.
a. The
Call
Option may be exercised by written notice given by Exchange Issuer to one or
more of the Contributors exercising the Call Option (Contributors being required
to retain good and valid title to the shares subject to the exercise, and to
keep said shares are unencumbered, during the term of this Agreement up to
the
time of delivery of the shares under the Option or termination of this
Agreement).
b. Exchange
Issuer may exercise the Call Option on a serial basis, until such time as (i)
the Call Option has been exercised with regard to all 1,000,000 shares of common
capital stock of the Exchange Issuer subject to the Call Option or (ii) the
Call
Option has terminated pursuant to the terms of Section 2(d) below.
c. Exchange
Issuer shall make payment for all Option Shares with regard to which the Call
Option is exercised within ten (10) days following Contributors’ deemed receipt
of the written notice exercising the Call Option. Payment shall be made to
the
Contributor owning the shares subject to the exercise in cash by wire transfer
of immediately available funds or certified check.
d. If
the
Call Option is not exercised during the Exercise Period, then the Call Option
will terminate, and be null, void and of no further effect immediately following
the end of the Exercise Period.
3. Contributors’
Representations and Warranties.
Contributors hereby represent and warrant to Exchange Issuer that:
a. Contributors
have full legal right, power and authority, without the consent of any other
person, to execute and deliver this Agreement and to carry out the transactions
contemplated hereby.
b. This
Agreement has been duly executed and delivered by Contributors and is the
lawful, valid and legally binding obligation of Contributors, enforceable in
accordance with its terms.
c. This
Agreement does not violate any other agreement to which Contributors are a
party
or any agreement or law of which Contributors are aware.
4. Notices.
Any
notice required or permitted by any provision of this Agreement shall be given
in writing and shall be delivered personally or by courier, or by registered
or
certified mail, postage prepaid, addressed to the applicable address as set
forth in the signature page hereto or such other address as the parties may
designate in writing from time to time. Notices that are mailed shall be deemed
received five (5) days after deposit in the United States mail. Notices sent
by
courier or overnight delivery shall be deemed received two (2) days after they
have been so sent.
5. Further
Instruments and Actions.
The
Parties agree to execute such further instruments and to take such further
action as may reasonably be necessary to carry out the intent of this
Agreement.
6. Entire
Agreement.
This
Agreement contains the entire understanding of the parties hereto with respect
to the subject matter hereof, supersedes all other agreements between or among
any of the Parties with respect to the subject matter hereof.
7. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware without reference to conflicts of law
provisions.
8. Jurisdiction.
Each
Party to this Agreement hereby irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement or any agreements or
transactions contemplated hereby may be brought in the courts of the State
of
Delaware and hereby expressly submits to the personal jurisdiction and venue
of
such courts for the purposes thereof and expressly waives any claim of improper
venue and any claim that such courts are an inconvenient forum. Each Party
hereby irrevocably consents to the service of process of any of the
aforementioned courts in any such suit, action or proceeding by the mailing
of
copies thereof by registered or certified mail, postage prepaid, to the address
specified in Section
5,
such
service to become effective 10 days after such mailing.
9. Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of all
Parties.
10. Severability.
In case
any provision of the Agreement shall be invalid, illegal or unenforceable,
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
11. Attorney’s
Fees.
In the
event that any dispute among the Parties to this Agreement should result in
litigation, the prevailing Party in such dispute shall be entitled to recover
from the losing Party all fees, costs and expenses of enforcing any right of
such prevailing Party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
12. Headings.
The
headings of this Agreement are inserted for convenience and identification
only,
and are in no way intended to describe, interpret, define or limit the scope,
extent or intent hereof.
13. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the respective
Parties hereto, their successors and permitted assigns, heirs, and personal
representatives.
14. Counterparts.
This
Agreement may be executed 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.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
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EXCHANGE
ISSUER:
MH&SC,
Inc.
By: /s/
Xxxx
Xxxxx
Xxxx
Xxxxx, Chief Executive Officer
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CONTRIBUTORS:
/s/
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
/s/
Xxxx
Xxxx
Xxxx
Xxxx
/s/
Xxxxxxx
Xxxxx
Xxxxxxx Xxxxx
/s/
Xxx
Xxxxxx
Xxx
Xxxxxx
/s/
Xxxx
Xxxx
MTG,
LLC
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