AMENDMENT TO OPTION AGREEMENT
THIS AMENDMENT, has been made and entered into this 2nd day of April, 2004, by
and between CNH Holdings Company, a Nevada corporation ("CNHC"), and Xx. Xxxx X.
Xxxxxx and Xxxxxxx Xxxxxxx, Florida residents (collectively, the "OPTIONEES").
WITNESSETH:
WHEREAS, CNHC is in need of amending certain provisions of that certain option
agreement attached hereto and marked as Exhibit A, which is specifically
incorporated herein in its entirety by this reference (the "OPTION AGREEMENT");
WHEREAS, CNHC has approached the Optionees to obtain certain concessions from
them for the purpose of raising additional capital for the business, operations
and plans of CNHC; and WHEREAS, the Optionees have expressed their desire and
willingness to assist CNHC in this respect; NOW, THEREFORE, based upon the above
and foregoing premises and such other and further consideration, the receipt and
sufficiency of which are hereby acknowledged, THE PARTIES AMEND THE OPTION
AGREEMENT AS FOLLOWS:
ARTICLE I
AMENDMENT OF OPTIONS ISSUED; STRIKE PRICE; REGISTRATION; DILUTION
OPTIONS ISSUED. The amount of options issued as set forth in the Option
Agreement is reduced to 800,000 (400,000 each to Xxxxxxx/Xxxxxx). STRIKE PRICE.
The strike price on the options set forth in the Option Agreement is hereby
lowered to $2.00 per share. REGISTRATION. CNHC shall forthwith file a
registration statement for the shares underlying the options with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, on Form
S-8 or such other form as is available (the "Registration Statement") and shall
use its best commercial efforts to have the Registration Statement become
effective as soon as practicable. The cost and expense of this registration
shall be borne in its entirety by CNHC, which shall endeavor to immediately
cause such registration to become effective. The Optionees shall cooperate in
obtaining effectiveness of the registration statement. CNHC shall cause the
registration statement to remain effective until the earlier to occur of (a) the
exercise of all options, (b) the date that the shares underlying the options may
be sold without registration under Rule 144 of the Securities Act of 1933, as
amended, or (c) the expiration of the option term. DILUTION. Optionees are no
longer entitled to the receipt of compensatory shares in the event CNHC issues
shares or their equivalent at a price of less than $1.35 per share after the
date of this Agreement. SECTION EIGHT (ADJUSTMENT OF INITIAL EXERCISE PRICE AND
NUMBER OF SHARES PURCHASABLE) IS RESTATED AS FOLLOWS:
8. ADJUSTMENT OF INITIAL EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE.
For purposes hereof, the term "Initial Exercise Price" shall mean
$2.00. (A) RIGHT TO REDUCE EXERCISE PRICE. The Company shall have the
right, at any time and from to time to time, to reduce the Option
Exercise Price at any time such appears in the Company's best interests
to do so. (B) REORGANIZATIONS; ASSET SALES. In case of any capital
reorganization or any reclassification of the capital stock of the
Company or in case of a non-surviving combination or a disposition of
the assets of the Company other than in the ordinary course of the
Company's business, the holders of Options shall thereafter be entitled
to purchase (and it shall be a condition to the consummation of any
such reorganization, reclassification, non-surviving combination or
disposition that appropriate provision shall be made so that such
holder shall thereafter be entitled to purchase) the kind and amount of
shares of stock and other securities and property receivable in such
transaction by a holder of the number of shares of Common Stock of the
Company into which this Agreement entitled the holder to purchase
immediately prior to such capital reorganization, reclassification of
capital stock, non-surviving combination or disposition; and in any
such case appropriate adjustments shall be made in the application of
the provisions of this Section 8 with respect to rights and interests
thereafter of the holder to the end that the provisions of this Section
8 shall thereafter be applicable, as near as reasonably may be, in
relation to any shares or other property thereafter purchasable upon
the exercise of a Option. (C) DISPUTES. In the event that there is any
dispute as to the computation of the Exercise Price or the number of
shares of Common Stock required to be issued upon the exercise of the
Options, the Company will retain an independent and nationally
recognized accounting firm to conduct an audit of the computations
pursuant to the terms hereof involved in such dispute, including the
financial statements or other information upon which such computations
were based. The determination of such nationally recognized accounting
firm shall, in the absence of manifest error, be binding. If there
shall be a dispute as to the selection of such nationally recognized
accounting firm, such firm shall be appointed by the American Institute
of Certified Public Accountants ("AICPA") if willing, otherwise the
American Arbitration Association ("AAA"). If the Exercise Price or
number of shares of Common Stock as determined by such accounting firm
is ten percent or more higher or lower than the calculations thereof
computed by the Company, the expenses of such accounting firm and, if
any, of AICPA and AAA, shall be borne completely by the Company. In all
other cases, they shall be borne by the complaining Registered Holders.
Before taking any action which would cause an adjustment reducing the
Exercise Price below the then par value of the shares of Common Stock
issuable upon exercise of the Options, the Company shall take any
corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at the adjusted Exercise Price.
ARTICLE II
CNHC'S RELEASE AND COVENANT NOT TO XXX
CNHC'S RELEASE OF OPTIONEES. For and in consideration of the above and foregoing
premises and the mutual covenants, promises and agreements contained herein,
CNHC hereby releases, acquits and forever discharges each of the Optionees, as
well as all of their respective affiliates, successors and assigns, from and
against any and all actions, causes of action, suits, claims, demands, rights,
controversies, debts, agreements, damages, costs, expenses, liabilities and
compensation whatsoever which it now has or may hereafter have on account or
arising out of any matter, thing or event which has happened, developed or
occurred, whether known or unknown, at any time prior to and including the date
of the execution and delivery of this agreement. CNHC'S COVENANT NOT TO Xxx.
CNHC covenants and agrees that it will not, either individually or collectively,
bring, commence, institute, maintain, prosecute or instigate any action at law,
proceeding in equity, administrative proceeding or otherwise, nor prosecute or
xxx either of the Optionees, and/or their respective affiliates, counsel,
successors or assigns, either affirmatively or by way of cross-claim, defense or
counterclaim, or in any other manner, for any alleged claim, demand, liability
or cause of action in any way stemming from any claimed action or inaction of
either of the Optionees, individually or collectively, prior to and including
the date of the execution and delivery of this Amendment. CONSIDERATION. CNHC
acknowledges, understands and agrees that the Option Agreement was duly and
validly authorized, executed and delivered and that the options thereunder were
dully and validly authorized and delivered and are fully paid for.
ARTICLE III
OPTIONEES' RELEASE AND COVENANT NOT TO XXX
OPTIONEE'S RELEASE OF CNHC. For and in consideration of the above and foregoing
premises and the mutual covenants, promises and agreements contained herein,
each of the Optionees hereby releases, acquits and forever discharges CNHC, as
well as all of its officers, directors, employees, agents, counsel, successors
and assigns (the "CNHC Releasees"), from and against any and all actions, causes
of action, suits, claims, demands, rights, controversies, debts, agreements,
damages, costs, expenses, liabilities and compensation whatsoever which they now
have or may hereafter have on account or arising out of any matter, thing or
event which has happened, developed or occurred, whether known or unknown, at
any time prior to and including the date of the execution and delivery of this
agreement. OPTIONEE'S COVENANT NOT TO XXX. Each of the Optionees covenants and
agrees that it will not, either individually or collectively, bring, commence,
institute, maintain, prosecute or instigate any action at law, proceeding in
equity, administrative proceeding or otherwise, nor prosecute or xxx any of CNHC
or the CNHC Releasees, either affirmatively or by way of cross-claim, defense or
counterclaim, or in any other manner, for any alleged claim, demand, liability
or cause of action in any way stemming from any claimed action or inaction of
any of CNHC or the CNHC Releasees, individually or collectively, prior to and
including the date of the execution and delivery of this Amendment.
CONSIDERATION. Each of the Optionees acknowledges, understands and agrees that
the Option Agreement was duly and validly authorized, executed and delivered and
that the options thereunder were dully and validly authorized and delivered and
are fully paid for. This release specifically excludes all promissory notes
issued by the Optionees on behalf of the Company.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
REPRESENTATIONS AND WARRANTIES. CNHC and the Optionees, individually and
collectively, hereby represent and warrant to all other parties hereto as
follows: (I) All necessary action has been taken to make this agreement a legal,
valid and binding obligation of themselves, enforceable in accordance with its
terms and conditions; and (II) The execution and delivery of this agreement and
the performance of their respective obligations hereunder will not result in any
material breach or violation of or material default under any material
agreement, indenture, lease, license, mortgage, instrument, or understanding,
nor result in any violation of any law, rule, regulation, statute, order or
decree of any kind, to which they or either of them is a party. Each of the
Optionees covenants and agrees that during such time as the Registration
Statement is effective, they will not violate Regulation M promulgated under the
Securities Exchange Act of 1934, as amended.
ARTICLE V
MISCELLANEOUS
EFFECTIVENESS OF THIS AMENDMENT. Notwithstanding any provision in this Amendment
to the contrary, except for the releases contained in Article II and Article
III, this Amendment shall not become effective until immediately prior to the
time that the Company consummates a sale or other placement of any of its equity
securities that results in gross proceeds to the Company of at least
$100,000.00.
MODIFICATION. The Option Agreement, with the exception of the above
modifications, remains in full force and effect. FURTHER ASSURANCES. Each party
hereto further agrees that they shall, either collectively or individually, take
such further and additional action as may be reasonable and necessary to carry
into full effect the intent of this agreement and to otherwise provide for the
fulfillment hereof.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed and
delivered on this 29th day of March, 2004.
XXXXXXX XXXXXXX, INDIVIDUALLY: XXXX XXXXXX, INDIVIDUALLY:
/s/ /s/
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CNH HOLDING COMPANY,
A NEVADA CORPORATION:
By: /s/
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Xxxxx X. Xxxxxx, Xx. CEO
