EXHIBIT 10.5
DIRECTOR'S INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT made as of November 10, 1999
BETWEEN:
VIBRO-TECH INDUSTRIES INC., a corporation subsisting under the laws of the state
of Delaware, having a place of business at Xxxxx 000-00000 Xxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
("Vibro-Tech")
AND:
DR. FU XXX XXXX, professor and vice-president of the South China Construction
University, of Xx. 000 Xxxxx Xxxx Xxxxx Xxxx, Xxxxxxxxx 000000 People's Republic
of China
("Director")
WHEREAS:
D. The Company's common shares are not traded through the facilities of any
exchange or quoted through the facilities of any service; and
B. The Company wishes to grant to the Director in his capacity as a director of
a subsidiary of the Company an option to purchase common shares of the Company;
and
C. The Purchaser is, or will be, an affiliate of the Company as interpreted
under the Securities Act of 1933 (U.S.) by reason of becoming a member of the
board of directors of the subsidiary of the Company and by reason of being a
"control person" of the Company as defined in applicable securities legislation;
WITNESSES that the parties mutually covenant and agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.01 In this Agreement, including the recitals and schedules to this Agreement,
unless the context otherwise requires:
Director means Dr. Fu Xxx Xxxx.
Exchange means the OTC Bulletin Board.
Exercise Price means US$0.15 per Optioned Share.
Expiry Date means 5:00 p.m., Vancouver time, on December 31, 2003.
Optioned Shares means 80,000 Shares.
Registrar means the Registrar of Securities under the Securities Act.
Rule 504 means Rule 504 of Regulation D under the Securities Act, as amended
from time to time.
Securities Act means the Securities Act of 1933 (U.S.), as amended from time to
time.
Share or Shares means a common share or common shares of the Company as
constituted on July 1, 1999.
1.02 The captions, section numbers and article numbers appearing in this
Agreement are inserted for convenience of reference only and will in no way
define, limit, constrict or describe the scope or intent of this Agreement nor
in any way affect this Agreement.
1.03 This Agreement and all matters arising under this Agreement will be
governed by, construed and enforced in accordance with the laws of Delaware and
any proceeding commenced or maintained in connection with this Agreement will be
so commenced and maintained in the court of appropriate jurisdiction in the
County of Vancouver, British Columbia to which jurisdiction the parties
irrevocably attorn.
1.04 In this Agreement, wherever the context requires, words importing the
singular number will include the plural and vice versa, words importing the
masculine gender will include the feminine and neuter genders and words
importing persons will include firms and corporations and vice versa.
1.05 Unless otherwise stated, a reference in this Agreement to a numbered or
lettered article, section, paragraph or subparagraph refers to the article,
section, paragraph or subparagraph bearing that number or letter in this
Agreement.
1.06 If any covenant or other provision of this Agreement is invalid, illegal or
incapable of being enforced by reason of any rule of law or public policy such
covenant or other provision will be severed; all other terms and conditions of
this Agreement will, nevertheless, remain in full force and effect and no
covenant or provision will be deemed dependent upon any other covenant or
provision unless so expressed herein.
ARTICLE 2 GRANT OF OPTION
2.01 The Company grants the Director an irrevocable, non-transferable and
non-assignable option (the "Option") to purchase Optioned Shares for the
Exercise Price on the terms and other conditions of this Agreement.
2.02 It is a condition that there is available to the Director under the
Securities Act an exemption from the registration requirements and the
prospectus requirements of the Securities Act under Rule 504.
ARTICLE 3 EXERCISE OF OPTION
3.01 The Director may exercise the Option from time to time with respect to all
or part of the Optioned Shares or Optioned Shares remaining unpurchased.
3.07 The Option will be exercised by the Director or his legal personal
representative by delivering to the principal business office of the
Company in Vancouver, British Columbia or such other place as is designated
by the Company from time to time:
(a) a notice stating the number of Optioned Shares being purchased; and
(b) a certified check or bank draft in favor of the Company drawn in United
States dollars for the product of the number of Optioned Shares being purchased
and the Exercise Price.
3.03 On exercise of Option, the Company will forthwith cause its transfer agent
to deliver to any of the Director, his legal representative or such other person
as the Director may otherwise direct in the notice of exercise of the Option a
certificate or certificates in the name of any of the Director, his legal
representative or such other person as the Director may otherwise direct in the
notice of exercise of the Option representing such number of Optioned Shares for
which payment has been made
3.04 Nothing in this Agreement obligates or will obligate the Director to
purchase or pay for any Optioned Shares except those Shares in respect of which
the Director has exercised the Option in the manner prescribed.
3.05 If the Optioned Shares have not been registered under the Securities Act,
the certificate or certificates representing the Optioned Shares, will be
endorsed with a legend as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT"), THE DELAWARE STATE SECURITIES ACT OR ANY
OTHER APPLICABLE SECURITES ACT AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
SUCH STATE SECURITIES LAWS, OR (2) AT THE OPTION OF THE COMPANY, UPON DELIVERY
TO THE COMPANY OF AN OPINION OF COUNSEL FOR THE TRANSFEROR, REASONABLY
SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
3.06 The Director acknowledges that the Option and the Optioned Shares, if any,
are issued pursuant to the exemption from the registration requirements
contained in Regulation D of Rule 504 of the Securities Act and that:
(a) the Shares and the Optioned Shares have not been registered under the
Securities Act or any state or provincial securities laws, and are being offered
in reliance on certain exemptions contained in the Securities Act and such state
or provincial securities laws;
(b) if the Optioned Shares have not been registered under the Securities Act,
the Optioned Shares will not be sold or transferred except pursuant to:
(i) an effective registration statement under the Securities Act and any
applicable state securities laws;
(ii) Rule 144 promulgated under the Securities Act; or
(ii) an opinion of counsel satisfactory to the Company to the effect that such
registration is not required; and
(c) the Option is non-transferable regardless of whether or not there exists an
exemption under which the Option could be sold or transferred to a third party;
and
(d) no federal, state or provincial agency has made any finding or determination
as to the fairness of the investment, or any recommendation or endorsement of
the Shares or any other securities of the Company.
ARTICLE 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DIRECTOR
4.01 The Director represents and warrants to, and covenants with, the Company
that:
(a) the Director is resident for securities law purposes in China; and
(b) the grant of the Option has not been made by expectation of employment or
continued employment.
ARTICLE 5 TERMINATION OF OPTION
5.01 The Option and this Agreement will terminate on the earlier of the Expiry
Date or:
(a) six months after the Director ceases to be a member of the board of
directors of the Company;
(b) six months after the date of the death of the Director;
(c) the time at which any securities regulatory authority issues against the
Director a cease trade order based on a determination that trading of the
securities of the Company by the Director is not in the best interests of the
public; or
(d) the time at which the Company determines that any of the Director, his legal
representative or such other person as is designated by the Director in the
notice exercising the Option as the person to whom Optioned Shares are to be
issued is in breach of any condition in this Agreement or applicable law
relating to the sale by the Director, his legal representative or such other
person as is designated of any of the Optioned Shares.
ARTICLE 6 PROHIBITION ON DEALING WITH THE OPTION AND RESTRICTIONS ON SALE OF
OPTIONED SHARES
6.01 The Director will not pledge, mortgage, hypothecate, sell, assign or
transfer, or agree to pledge, mortgage, hypothecate, sell, assign or transfer
the Option or any interest in, or right to, the Option.
ARTICLE 7 ADJUSTMENT OF NUMBER OF OPTIONED SHARES
7.01 The number of Optioned Shares deliverable upon the exercise of the Option
will be adjusted as follows:
(a) if there is any subdivision or subdivisions of the Shares while the Option
is in effect into a greater number of Shares, the Company will deliver at the
time of purchase of Optioned Shares, in addition to the number of Optioned
Shares in respect of which the right to purchase is being exercised, such
additional number of Optioned Shares as result from such subdivision or
subdivisions without the Director making any additional payment or giving any
other consideration;
(b) if there is any consolidation or consolidations of the Shares while the
Option is in effect into a lesser number of Shares, the Company will deliver and
the Director will accept, at the time of purchase of Optioned Shares, instead of
the number of Optioned Shares in respect of which the right to purchase is being
exercised, the lesser number of Optioned Shares as a result from such
consolidation or consolidations;
(c) if there is any change of the Shares of the Company while the Option is in
effect, the Company will deliver at the time of purchase of Optioned Shares the
number of Optioned Shares of the appropriate class resulting from the such
change as the Director would have been entitled to receive in respect of the
number of Optioned Shares so purchased had the right to purchase been exercised
before such change;
(d) if there is any capital reorganization, reclassification or change of
outstanding equity shares, other than a change in the par value, of the Company
or if there is any consolidation, merger or amalgamation of the Company with or
into any other company or any sale of the property of the Company as or
substantially as an entirety at any time while the Option is in effect, the
Director may purchase and receive, instead of the Optioned Shares purchasable
and receivable upon the exercise of the Option, the kind and amount of Shares
and other securities and property receivable upon such capital reorganization,
reclassification, change, consolidation, merger, amalgamation or sale which the
holder of a number of Shares equal to the number of Optioned Shares purchasable
and receivable upon the exercise of the Option would have received as a result
of such event.
The subdivision or consolidation of Shares at any time outstanding into a
greater or lesser number of Shares, whether with or without par value, will not
be deemed to be a capital reorganization or a reclassification of the capital of
the Company for the purposes of this paragraph (d).
7.02 The adjustments provided for in section 7.01 are cumulative.
7.03 The Company will not be required to issue fractional Shares in satisfaction
of its obligations and any fractional interest in a Share that would, except for
the provisions of this section, be deliverable upon the exercise of the Option
will be cancelled and not be deliverable by the Company.
7.04 If any questions at any time arise with respect to the exercise price or
number of Optioned Shares deliverable upon exercise of the Option, such
questions will be conclusively determined by the Company's auditors, or, if they
decline to so act, any other firm of chartered accountants in Vancouver, British
Columbia that the Company may designate and who will have access to all
appropriate records and such determination will be binding upon the Company and
the Director.
7.05 The Director will have no rights whatsoever as a shareholder in respect of
any of the Optioned Shares, including any right to receive dividends or other
distributions, other than in respect of Optioned Shares in respect of which the
Director has exercised its Option and which the Director has taken up and paid
for.
7.06 The Company represents and warrants to, and covenants with the Director
that:
(a) the Company will use its best efforts to proceed to have its Shares
registered under the Securities Exchange Act of 1934; and
(b) the Company will reserve in its treasury sufficient Shares to permit the
issuance and allotment of the Optioned Shares to the Director if the Option or
any part thereof is exercised.
ARTICLE 8 GENERAL PROVISIONS
8.01 Time is of the essence of the performance of every obligation under this
Agreement, and no failure or lack of diligence by any party in proclaiming or
seeking redress for any violation of, or insisting on strict performance of, any
provision of this Agreement will prevent a subsequent violation of that
provision, or of any other provision, from giving rise to any remedy that would
be available if it were an original violation of that provision or another
provision.
8.02 This Agreement will be binding upon and enure to the benefit of the
respective heirs, executors, administrators and other legal representatives and,
to the extent permitted hereunder, the respective successors and assigns, of the
parties.
8.03 Unless otherwise provided herein, any notice, payment or other
communication to a party under this Agreement may be made, given or served by
delivery, telecopy or email and addressed as follows:
(a) if to the Director:
Dr. Fu Xxx Xxxx
c/o South China Construction University,
Xx. 000 Xxxxx Xxxx Xxxxx Xxxx, Xxxxxxxxx 000000
People's Republic of China
Tel/Fax: 000-0000-0000-0000
Email: xxxxx@xxxx.xx.xx
----------------
(b) if to Vibro-Tech
Vibro-Tech Industries, Inc.
201-11240 Bridgeport Road
Richmond, B.C. V6X IT2
Attention: Xx. Xxxx Xxxxx, President
Fax: 000-000-0000
Email: xxxxxxx@xxxxxx.xxx
------------------
8.04 Any notice, payment or other communication so delivered, telecopied or
emailed will be deemed to have been given or served at the time of delivery or
transmission by telecopy or email.
8.05 A party may by notice change its address for service.
8.06 This Agreement constitutes the entire agreement between the parties and
supercedes all previous agreements or understandings between the parties in any
way relating to its subject matter and the Company has made not representations,
inducements, warranties or promises concerning this Agreement or the matters
referred to herein which are not embodied in this Agreement.
IN WITNESS WHERE OF this Agreement has been executed by the parties as at the
date first above written.
VIBRO-TECH INDUSTRIES, INC.
By: /s/ Xxxx XxxXxxxxx
Xxxx XxxXxxxxx, Secretary
Signed, Sealed and Delivered by Dr. Fu Lin )
Zhou in the presence of: )
)
/s/ illegible )
) /s/ Dr. Fu Xxx Xxxx
) DR. FU XXX XXXX
3007051109/1-7
