EXHIBIT 4.3
FORM OF SERIES B OPTION AGREEMENT AND CERTIFICATE
OPTION AGREEMENT
This OPTION AGREEMENT (the "Agreement") is dated as of April 1, 1999,
by and between XXXXXXX.XXX, INC. (the "Company"), and ____________________
("Option Holder").
WHEREAS, the Company proposes to issue to Option Holder _______ options
(the "Options"), each such Option entitling the holder thereof to purchase one
share of Common Stock, $.001 par value, of the Company (the "Shares") at an
exercise price of $10.00 per share.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. OPTION CERTIFICATES. The Option Certificates to be delivered
pursuant to this Agreement (the "Option Certificates") shall be in the form set
forth in EXHIBIT A, attached hereto and made a part hereof. The Option
Certificates shall be executed on behalf of the Company by its Chief Executive
Officer, President, or any Vice President under its corporate seal reproduced
thereon and attested by its corporate secretary or one of its assistant
secretaries. Option Certificates may be exchanged at the Optionholder's option,
when surrendered to the Company for another Option Certificate or other Option
Certificates of like tenor and representing in the aggregate a like number of
Options.
SECTION 2. RIGHT TO EXERCISE OPTIONS. Each Option may be exercised from
the date of this Agreement until 11:59 P.M. (Pacific Standard time) on the date
that is two years after the vesting date of this Option, or March 31, 2002 (the
"Expiration Date"). Each Option not exercised on or before the Expiration Date
shall expire. Subject to the provisions of this Option Agreement, including
Section 10 hereof, the holder of each Option shall have the right to purchase
from the Company, and the Company shall issue and sell to each such Option
Holder, at an initial exercise price per share of $10.00, subject to adjustment
as provided herein (the "Exercise Price"), one fully paid and nonassessable
Share upon surrender to the Company of the Option Certificate evidencing such
Option, with the form of election to purchase duly completed and signed and
evidence of payment of the Exercise Price. Payment of the Exercise Price shall
be made by wire transfer or check to the Company. A check for the option price
shall not be considered delivered until good funds are received by the Company.
Upon surrender of such Option Certificate and payment of the Exercise
Price, the Company shall cause to be issued and delivered promptly to Option
Holder a certificate for the Shares issuable upon the exercise of the Option or
Options evidenced by such Option Certificate. The Options evidenced by an Option
Certificate shall be exercisable at the election of the Option holder thereof,
either as an entirety or from time to time for less than all of the number of
Options specified in the Option Certificate.
SECTION 3. RESERVATION OF SHARES. The Company will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Shares or its authorized and issued Shares held in its
treasury for the purpose of enabling it to satisfy any obligation to issue
Shares upon exercise of Options, the full number of Shares deliverable upon the
exercise of all outstanding Options. The Company covenants that all Shares which
may be issued upon exercise of Options will be validly issued, fully paid and
nonassessable outstanding Shares of the Company.
SECTION 4. REGISTRATION UNDER THE SECURITIES ACT OF 1933. Option Holder
represents and warrants to the Company that Option Holder is acquiring the
Options for investment and with no present intention of distributing or
reselling any of the Options. The Shares and the certificate or certificates
evidencing any such Shares shall bear the following legend:
"THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. THE SHARES MAY NOT
1
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT IS AVAILABLE."
Certificates for Shares without such legend shall be issued if such shares are
sold pursuant to an effective registration statement under the Act or if the
Company has received an opinion from counsel reasonably satisfactory to counsel
for the Company, that such legend is no longer required under the Act.
Certificates for Options or Shares shall also bear such legends as may be
required from time to time by law.
SECTION 5. VESTING AND ASSIGNMENT OF OPTION. The Options granted
hereunder shall be fully earned as of April 1, 2000. If a change in control of
the Company should occur prior to the vesting date of April 1, 2000, the Option
shall be immediately deemed exercised in full. A change in control is defined as
any transaction which results in Xxxxxxx Xxxxxxxxx holding less than fifty-one
percent (51%) of the voting stock of the Company. The percentage for purposes of
determining control is calculted prior to the exercise of this Option. This
Option is freely assignable by Option Holder at any time prior to its
expiration.
SECTION 6. REGISTRATION RIGHTS.
a. PIGGYBACK REGISTRATION RIGHTS. If the Company at any time proposes
to register any of its securities under the Act, including an S-8 Registration
Statement or otherwise, it will each such time give written notice to all
holders of outstanding Shares and Options of its intention so to do. The Company
will use best efforts at the request of Option Holder to register the shares
underlying these options on a form S-8 registration statement. Upon the written
request of a holder or holders of any such Shares or Options given within 30
days after receipt of any such notice, the Company will use its best efforts to
cause all such Shares, the holders of which (or of the Options for which upon
exercise thereof the Company will issue Shares) shall have so requested
registration thereof, to be registered under the Act (with the securities which
the Company at the time propose to register), all to the extent requisite to
permit the sale or other disposition by the prospective sellers of the Shares so
registered; provided, however, that the Company may, as a condition precedent to
the effectiveness of such registration, require each prospective seller to agree
with the Company and the managing underwriter or underwriters of the offering to
be made by the Company in connection with such registration that such seller
will not sell any securities of the same class or convertible into the same
class as those registered by the Company (including any class into which the
securities registered by the Company are convertible) for such reasonable period
after such registration becomes effective (not exceeding 60 days) as shall then
be specified in writing by such underwriter or underwriters if in the opinion of
such underwriter or underwriters the Company's offering would be materially
adversely affected in the absence of such an agreement. All expenses incurred by
the Company in complying with this Section, including without limitation all
registration and filing fees, listing fees, printing expenses, fees and
disbursements of all independent accounts, or counsel for the Company and or
counsel for the sellers and the expense of any special audits incident to or
required by any such registration and the expenses of complying with the
securities or blue sky laws of any jurisdiction shall be paid by the Company.
Notwithstanding the foregoing, sellers shall pay all underwriting discounts or
commissions with respect to shares sold by the sellers.
b. INDEMNIFICATION. Each holder of any Shares or Options shall by
acceptance thereof indemnify and hold harmless the Company and its directors and
officers, and each person, if any who controls the Company, against any losses,
claims, damages or liabilities, joint or several, to which the Company or any
director or officer or any such person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained, on the effective date thereof,
in any registration statement under which Shares were registered under the Act
at the request of such holder, any preliminary prospectus or final 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, 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 made
in such registration statement, preliminary prospectus, prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by or on behalf of such
holder specifically stating that it is for use therein; and will reimburse the
Company or such director, officer or
2
person for any legal or any other expense reasonably incurred in connection with
investigation or defending any such loss, claim, damage, liability or action.
SECTION 7. NOTICES TO COMPANY AND OPTION HOLDER. Any notice or demand
authorized by this Agreement to be given or made by any registered holder of any
Option Certificate to or on the Company shall be sufficiently give or made if
sent by registered mail, postage prepaid, addressed (until another address is
filed in writing by the Company with the holders) to the Company and the Option
Holder to the addresses indicated in the signature block of this Agreement.
SECTION 8. SUPPLEMENTS AND AMENDMENTS. The Company and Option Holder
may from time to time supplement or amend this Agreement without the approval of
any option holders (other than Option Holder) in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and Option
Holder may deem necessary or desirable and which the Company and Option Holder
deem shall not adversely affect the interests of the option holders.
SECTION 9. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or Option Holder shall bind and
inure to the benefit of their respective successors and assigns hereunder.
SECTION 10. GOVERNING LAW. This Agreement and each Option Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Nevada and for all proposes shall be governed by and construed in
accordance with the laws of said State.
SECTION 11. COUNTERPARTS. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. The Parties
agree that facsimile signatures of this Agreement shall be deemed a valid and
binding execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
XXXXXXX.XXX, a Nevada corporation OPTION HOLDER
By: By:
-------------------------- --------------------------------
Xxxxxxx Xxxxxxxxx (signature)
Its: President
--------------------------------
Print Name
Address: Address:
----------------------------
----------------------------
3
EXHIBIT A
[FORM OF OPTION CERTIFICATE]
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK (OR
OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE OPTIONS, SHARES OR OTHER SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
EXERCISABLE FROM 12:00 P.M. PACIFIC STANDARD TIME,
ON APRIL 1, 2000 UNTIL
11:59 P.M., PACIFIC STANDARD TIME ON MARCH 31, 2002
No. ____ _________ Options
OPTION CERTIFICATE
XXXXXXX.XXX, INC.
This Option Certificate certifies that ________________ ("Option
Holder") is the registered holder of ________ Options (the "Options") expiring
March 31, 2002 (the "Expiration Date") to purchase shares of Common Stock (the
"Shares") of XXXXXXX.XXX, INC., a Nevada corporation (the "Company"). Each
Option entitles the holder to purchase from the Company before 11:59 p.m.
(Pacific Standard time) on the "Expiration Date" one fully paid and
nonassessable share of Common Stock of the Company at the initial exercise price
for each Option of $10.00 per share (the "Exercise Price"), upon surrender of
this Option Certificate and payment of the Exercise Price at an office or agency
of the Company, but only subject to the terms and conditions set forth herein
and in the Option Agreement. Payment of the Exercise Price may be permitted by
check or wire transfer. Payment shall be deemed accepted only upon the receipt
of good funds by the Company. As used herein, "Share" or "Shares" refers to the
Common Stock of the Company. In the event that upon any exercise of Options
evidenced hereby, the number of Options exercised shall be less than the total
number of Options evidence hereby, there shall be issued to the holder hereof or
his or her assignee a new Option Certificate evidencing the number of Options
not exercised. No adjustment shall be made for any cash dividends on any Shares
issuable upon exercise of this Option.
No Option may be exercised after 11:59 P.M. (Pacific Standard Time) on
the Expiration Date. All Options evidenced hereby shall thereafter be void.
The Options evidenced by this Option Certificate are part of a duly
authorized issue of Options issued pursuant to an Option Agreement, dated as of
April 1, 1999 (the "Option Agreement"), duly executed by the Company and Option
Holder which Option Agreement is hereby incorporated by reference in and made a
part of this instruments and is hereby referred to for a description of the
rights, limitation of rights, obligations, duties and immunities thereunder of
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder of the Option Certificates of Shares).
The Company may deem and treat the person(s) registered in the
Company's register as the absolute owner(s) of this Option Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, and of any distribution to the
holder(s) hereof, and for all purposes, and the Company shall not be affected by
any notice to the contrary.
All terms used in this Option Certificate which are defined in the
Option Agreement shall have the meaning assigned to them in the Option
Agreement.
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK (OR
OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER
THE
1
SECURITIES ACT OF 1933. THE OPTIONS, SHARES OR OTHER SECURITIES MAY NOT BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL THAT
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to
be duly executed under its corporate seal.
Dated: April 1, 1999 XXXXXXX.XXX, INC.
By:
----------------------------
Xxxxxxx Xxxxxxxxx
ITS: President
2
FORM OF
ELECTION TO PURCHASE
(To be executed upon exercise of Option)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Option Certificate, to purchase ______ Shares and
herewith authorizes payment for such Shares in the amount of $_____ all in
accordance with the terms hereof. The undersigned requests that certificates for
such Shares be registered as follows:
Name Number of Shares
---- ----------------
all of whose addresses are ____________________________________________________,
and that such certificates be delivered to Option Holder whose address is
___________________________________________________. If said number of Shares is
less than all of the Shares purchasable hereunder, the undersigned requests that
a new Option Certificate representing the remaining balance of the Shares be
registered in the name of Option Holder whose address is
________________________________ and that such Certificates be delivered to the
attention of ___________________ at the above address.
Dated: OPTION HOLDER
---------------------
By:
------------------------------------
(signature)
------------------------------------
(print name)
OPTION CERTIFICATE
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK (OR
OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE OPTIONS, SHARES OR OTHER SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
EXERCISABLE FROM 12:00 P.M. PACIFIC STANDARD TIME,
ON APRIL 1, 2000 UNTIL
11:59 P.M., PACIFIC STANDARD TIME ON MARCH 31, 2002
No. _____ _________ Options
OPTION CERTIFICATE
XXXXXXX.XXX, INC.
This Option Certificate certifies that _____________ ("Option Holder")
or registered assigns, is the registered holder of ______ Options (the
"Options") expiring March 31, 2002 (the "Expiration Date"), to purchase shares
of Common Stock (the "Shares") of XXXXXXX.XXX, INC., a Nevada corporation (the
"Company"). Each Option entitles the holder to purchase from the Company before
11:59 p.m. (Pacific Standard time) on the "Expiration Date" one fully paid and
nonassessable share of Common Stock of the Company at the initial exercise price
for each Option of $10.00 per share (the "Exercise Price"), upon surrender of
this Option Certificate and payment of the Exercise Price at an office or agency
of the Company, but only subject to the terms and conditions set forth herein
and in the Option Agreement. Payment of the Exercise Price may be permitted by
check or wire transfer. Payment shall be deemed accepted only upon the receipt
of good funds by the Company. As used herein, "Share" or "Shares" refers to the
Common Stock of the Company. In the event that upon any exercise of Options
evidenced hereby, the number of Options exercised shall be less than the total
number of Options evidence hereby, there shall be issued to the holder hereof or
his or her assignee a new Option Certificate evidencing the number of Options
not exercised. No adjustment shall be made for any cash dividends on any Shares
issuable upon exercise of this Option.
No Option may be exercised after 11:59 P.M. (Pacific Standard Time) on
the Expiration Date. All Options evidenced hereby shall thereafter be void.
The Options evidenced by this Option Certificate are part of a duly
authorized issue of Options issued pursuant to an Option Agreement, dated as of
April 1, 1999 (the "Option Agreement"), duly executed by the Company and Option
Holder which Option Agreement is hereby incorporated by reference in and made a
part of this instruments and is hereby referred to for a description of the
rights, limitation of rights, obligations, duties and immunities thereunder of
the Company and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder of the Option Certificates of Shares).
The Company may deem and treat the person(s) registered in the
Company's register as the absolute owner(s) of this Option Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, and of any distribution to the
holder(s) hereof, and for all purposes, and the Company shall not be affected by
any notice to the contrary.
All terms used in this Option Certificate which are defined in the
Option Agreement shall have the meaning assigned to them in the Option
Agreement.
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK (OR
OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE OPTIONS, SHARES OR OTHER SECURITIES MAY NOT BE
SOLD OR
1
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to
be duly executed under its corporate seal.
Dated: April 1, 1999 XXXXXXX.XXX, INC.
By:
-------------------------------
Xxxxxxx Xxxxxxxxx
ITS: President
2
ELECTION TO PURCHASE
(To be executed upon exercise of Option)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Option Certificate, to purchase ______ Shares and
herewith authorizes payment for such Shares in the amount of $_____ all in
accordance with the terms hereof. The undersigned requests that certificates for
such Shares be registered as follows:
Name Number of Shares
---- ----------------
all of whose addresses are ____________________________________________________,
and that such certificates be delivered to Option Holder whose address is
______________________________________________________. If said number of Shares
is less than all of the Shares purchasable hereunder, the undersigned requests
that a new Option Certificate representing the remaining balance of the Shares
be registered in the name of Option Holder whose address is
_______________________________________________ and that such Certificates be
delivered to the attention of ___________________ at the above address.
Dated: OPTION HOLDER
--------------------
By:
---------------------------------
(signature)
---------------------------------
(print name)
