MEDIACOMM BROADCASTING SYSTEMS, INC.
d/b/a XXXXXXX.XXX
Exhibit No. 10.12
Stock Option Agreement
with Xxxxxx X. Xxxxxxxx
MEDIACOMM BROADCASTING SYSTEMS, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as
of November 30th, 1999 (the "Date of Grant"), by and between MediaComm
Broadcasting Systems, Inc., a Colorado corporation (the "Company"), and Xxxxxx
X. Xxxxxxxx ("Optionee").
WITNESSETH:
WHEREAS, effective November 30th, 1999, the Board of Directors determined
that the Optionee should receive an option to purchase shares of the Company's
Common Stock under the Company's Non-Qualified Stock Option and Stock Grant Plan
in order to provide the Optionee with an opportunity for investment in the
Company and additional incentive to pursue the success of the Company, said
option to be for the number of shares, at the price per share and on the terms
set forth in this Agreement; and
WHEREAS, Optionee desires to receive an option on the terms and conditions
set forth in this Agreement and agrees to perform the services requested by the
Company.
NOW, THEREFORE, the parties agree as follows:
1. Stock Option Plan. This agreement is granted pursuant to, and is subject
to the terms and conditions of the MediaComm Broadcasting Systems Non-Qualified
Stock Option and Stock Grant Plan dated March 1, 1999 (the "Plan"). All
conditions of the Plan, except as may be modified herein, shall govern the
rights of Optionee under this Agreement.
2. Grant of Option. The Company hereby grants to Optionee, as a matter of
separate agreement and not in lieu of salary or any other compensation for
service, and subject to the vesting schedule set forth in Section 3, the right
and option (the "Option") to purchase all or any part of an aggregate of 150,000
shares of reserved authorized and unissued no par value Common Stock of the
Company subject to adjustment as hereinafter set forth (the "Option Shares"),
pursuant to the terms and conditions set forth in this Agreement.
3. Vesting and Employment. The right to exercise the option granted herein,
as to all or a part of the 150,000 shares subject to this option shall vest on
November 30, 2000 and shall continue until November 30th, 2005 provided that
optionee shall remain an employee of the company at all times during the option
period, subject only to vacation, sick leave, leaves of absence and other
absence permitted by the Company in accordance with its policies applicable
generally to employees.
Separation from employment by Optionee for any reason prior to November 30, 2004
shall void this option to the extent of options not exercised prior to said
date.
4. Option Price. At any time when shares are to be purchased pursuant to
the Option, the purchase price for each Option Share shall be $0.20 subject to
adjustment as hereinafter set forth (the "Option Price").
5. Option Period. Subject to Section 7 hereof, the Option shall be
exercisable during the period beginning on November 30th, 2000, and ending on
November 30th, 2005.
6. Exercise of Option.
(a) The Option may be exercised by delivering to the Company:
(i) a Notice and Agreement of Exercise of Option, substantially in the
form attached hereto as Exhibit A, specifying the number of Option
Shares with respect to which the Option is exercised; and
(ii) full payment in cash of the Option Price for such shares.
(b) Notwithstanding the foregoing, an Option may not be exercised in part
unless the purchase price of the Option Shares purchased is at least $1,000.00.
(c) Promptly upon receipt of the Notice and Agreement of Exercise and the
finial payment of the Option Price by the Optionee (including payment or
provision for payment of any applicable withholding or similar taxes), the
Company shall deliver to the Optionee a properly executed certificate or
certificates representing the Option Shares being purchased.
(d) The Optionee shall report all sales of Option shares to the Company in
writing on a form prescribed by the Company. Based upon the report of sales
submitted by the Optionee, the Company may make any withholding required by
state or Federal income tax laws.
7. Termination of Employment. Exercise of the Option shall at all times be
subject to the terms and conditions of Section 7 of the Plan, the terms and
conditions of which are incorporated herein by reference in their entirety. Such
provisions include acceleration of the exercise period in the event the Optionee
shall die, become disabled or otherwise separate from employment with the
Company. Optionee hereby acknowledges receipt of a copy of the Plan, and agrees
to be bound by the terms and conditions thereof, in addition to the terms and
conditions of this Agreement.
8. Transferability of Option. The Option shall not be transferable except
by will or the laws of descent and distribution, and any attempt to do so shall
void the Option. Any transfer by will or intestate laws shall be subject to the
provisions of Paragraph 7.
9. Adjustment By Stock Split, Stock Dividend, Etc. If at any time the
Company increases or decreases the number of its outstanding shares of Common
Stock, or changes in any way the rights and privileges of such shares, by means
of the payment of a stock dividend or the making of any other distribution on
such shares payable in its Common Stock, or through a stock split or subdivision
of shares, or a consolidation or combination of shares, or through a
reclassification or recapitalization involving its Common Stock, the numbers,
rights, and privileges of the shares of Common Stock included in the Option
and/or the exercise price of the Option shall be increased, decreased or changed
in like manner so that the Optionee shall be entitled to substantially the same
rights as set forth in this Agreement.
10. Common Stock To Be Received Upon Exercise. Optionee understands that
the Option Shares represent restricted securities within the meaning of the
Securities Act of 1933, have not been registered and that the Company is under
no obligation to register the Option Shares under the 1933 Act, and that in the
absence of any such registration, the Option Shares cannot be sold unless they
are sold pursuant to an exemption from registration under the Act. The Company
is under no obligation to comply, or to assist the Optionee in complying with
any exemption from such registration requirement, including supplying the
Optionee with any information necessary to permit routines sales of the Stock
under Rule 144 of the Securities and Exchange Commission. Optionee also
understands that with respect to Rule 144, routine sales of securities made in
reliance upon such Rule can only be made in limited amounts in accordance with
the terms and conditions of the Rule, and that in cases in which the Rule is
inapplicable, compliance with either Regulation A or another disclosure
exemption under the Act will be required. Thus, the Option Shares will have to
be held indefinitely in the absence of registration under the Act or an
exemption from registration.
Furthermore the Optionee fully understands that the Option Shares have not
been registered under the Act and that they will be issued in reliance upon an
exemption which is available only if Optionee acquires such shares for
investment and not with a view to distribution. Optionee is familiar with the
phrase "acquired for investment and not with a view to distribution" as it
relates to the Act and the special meaning given to such term in various
releases of the Securities and Exchange Commission.
The forgoing restrictions or notices thereof may be placed on the
certificates representing the Option Shares purchased pursuant to the Option and
the Company may refuse to issue the certificates or to transfer the shares on
its books unless it is satisfied that no violation of such restrictions will
occur.
11. Privilege of Ownership. Optionee shall not have any of the rights of a
shareholder with respect to the shares covered by the Option except to the
extent that one or more certificates for such shares shall be delivered to him
upon exercise of the Option.
12. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and they shall be deemed to be given upon receipt
by sender or sender's return receipt for acknowledgment of delivery of said
notice by postage prepaid registered mail. Such notice shall be addressed to the
party to be notified as shown below:
Company: MediaComm Broadcasting Systems, Inc.
000 X. Xxxxxx #00
Xxxxxxxxx, Xxxxxxxx 00000
Optionee: Xxxxx Xxxxxxxx
0000 Xxxxxxx Xx.
Xxxxxx, Xxxxxxxx 00000
Any party may change its address for purposes of this paragraph by giving
the other parties written notice of the new address in the manner set forth
above.
13. Miscellaneous. This Agreement and the Plan constitutes the entire
understanding of the parties with respect to the subject matter herein. This
Agreement shall be governed by the laws of the State of Colorado. There are no
representations, promises, warranties, covenants or undertakings other than
those expressly set forth herein. No modification, waiver or termination of any
of the terms herein shall be valid unless in writing and executed with the same
formality as this Agreement. No waiver by either party of any breach or default
hereof by the other shall be deemed to be a waiver of any preceding or
succeeding breach or default hereof, and no waiver shall be operative unless the
same shall be in writing. The headings contained in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof. Should any provision of this agreement be declared invalid by
a court of competent jurisdiction, the remaining provisions hereof shall remain
in full force and effect regardless of such declaration. In the event of any
dispute or litigation between the parties, the prevailing party shall be
entitled to reasonable attorneys fees and costs. Time is of the essence.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below, to be effective as of the date and year first above written.
COMPANY: OPTIONEE:
MEDIACOMM BROADCASTING SYSTEMS, INC.
By:
Xxx X. Xxxxxxxx, President Xxxxxx X. Xxxxxxxx
/s/ /s/
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EXHIBIT A
TO MEDIACOMM BROADCASTING SYSTEMS, INC.
STOCK OPTION AGREEMENT
MEDIACOMM BROADCASTING SYSTEMS, INC.
NOTICE AND AGREEMENT OF EXERCISE OF OPTION
I hereby exercise my MediaComm Broadcasting Systems, Inc. Stock Option
dated _________________ as to ________________ shares of MediaComm Broadcasting
Systems, Inc. no par value Common Stock (the "Option Shares").
Enclosed are the documents and payment specified in Section 6 of my Option
Agreement. I understand that no Option Shares will be issued unless and until,
in the opinion of MediaComm Broadcasting Systems, Inc. (the "Company"), any
applicable registration requirements of the Securities Act of 1933, as amended,
any applicable listing requirements of any securities exchange on which stock of
the same class is then listed, and any other requirements of law or any
regulatory bodies having jurisdiction over such issuance and delivery, shall
have been fully complied with. I hereby acknowledge, represent, warrant and
agree, to and with the Company as follows:
(a) The Option Shares I am purchasing are being acquired for my own account
for investment purposes only and with no view to their resale or other
distribution of any kind, and no other person (except, if I am married, my
spouse) will own any interest therein;
(b) I will not sell or dispose of my Option Shares in violation of the
Securities Act of 1933, as amended, or any other applicable federal or state
securities laws;
(c) If and so long as I am subject to reporting requirements under Section
16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), I
recognize that any sale by me or my immediate family of the Company's no par
value Common Stock within six months before the Date of Grant of my Stock Option
may create liability for me under Section 16(b) of the Exchange Act ("Section 16
(b)");
(d) I have consulted with my counsel regarding the application of Section
16 (b) to this exercise of my Option;
(e) I will consult with my counsel regarding the application of Section
16(b) before I make any sale of the Company' s no par value Common Stock,
including the Option Shares;
(f) I will report all sales of Option Shares to the Company in writing on a
form prescribed by the Company;
(g) I will assist the Company in the filing of a Form 4 with the Securities
and Exchange Commission and will timely file all reports that I may be required
to file under the federal securities laws; and
(h) I agree that the Company may, without liability for its good faith
actions, place legend restrictions upon my Option Shares and issue "stop
transfer" instructions requiring compliance with applicable securities laws and
the terms of my Option.
_____________________________
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