OPTION TO PURCHASE COMMON STOCK
OF
INTERACTIVE BUYERS NETWORK INTERNATIONAL, LTD.
For and in consideration of good and valuable consideration received
from Xxxxxx X. XxXxxxxxxxx ("XxXxxxxxxxx"), Xxxxxx X. Xxxxxxx ("Xxxxxxx") and
Xxxxx X. Xxxxxxx ("Xxxxxxx") (XxXxxxxxxxx, Xxxxxxx and Xxxxxxx are hereinafter
collectively referred to as the "WPG Shareholders.") and as an incentive to the
WPG Shareholders to generate revenue for the company, Interactive Buyers Network
International, Ltd., a Nevada corporation, hereby agrees to grant to DX3, Inc.,
a corporation of the State of Washington and owned by the WPG Shareholders
("Optionee"), an option to purchase Five Hundred Thousand (500,000) shares of
restricted common stock of Interactive Buyers Network International, Ltd. in
accordance with the following terms and conditions:
1. GRANT OF OPTION. Interactive Buyers Network International, Ltd., a
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corporation having an address at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX
00000 (hereinafter referred to as "Optionor"), subject to the terms and
conditions of this Option hereby grants to Optionee, having an address at P.O.
Box 2347, Woodinville, WA 98072, an option to purchase Five Hundred Thousand
(500,000) shares of the restricted common stock of Interactive Buyers Network
International, Ltd. (hereinafter referred to as the "Common Stock") at any time
within ten years following the date of this Option (hereinafter referred to as
the "Option"). After such date, the Option shall be canceled.
2. EXERCISE PRICE. The exercise price for all options granted
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hereunder shall be Fifty Nine Cents ($ 0.59 ) per share of the Common Stock.
3. VESTING OF OPTION. The right of Optionee to exercise the Option and
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purchase the Common Stock shall be subject to the following additional terms and
conditions:
(a) All of the Option shall be restricted from exercise by Optionee in
accordance with the provisions hereof until such restrictions (the
"Restrictions") are terminated as provided in subparagraph 3(b) below.
(b) The Restrictions on the right to exercise the Option by Optionee
shall terminate as to two and three-quarters percent (2 3/4%) of the shares of
Common Stock subject to the Option upon the expiration of each full month, from
the date of this option, until such time, if any, as the Restrictions shall have
lapsed as to all of the Common Stock (as an example, after three months the
Option will be exercisable for 41,250 shares of Common Stock (3 times .0275
times 500,000). In addition, the Restrictions on the right to exercise the
Option shall terminate after Optionor has received total gross revenue totaling
$500,000 from sales or use of Base Publisher, as defined in paragraph "F" of the
"Stock Purchase and Exchange Agreement" herein made a part of this agreement,
("BP"), a product now under development by WPG with release expected by July
1998. The total gross revenue will be calculated quarterly based upon financial
records of Optionor, subject to adjustment annually upon audit by Optionor's
independent auditors.
(c) Until the termination of the Restrictions as provided in
subparagraph 3(b) hereof, none of the unexercised Option may be assigned,
transferred, pledged or hypothecated in any way, except to Optionor, nor shall
any of such Option be assignable by operation of law, or be subject to
execution, attachment or similar process. Any attempt at assignment, transfer,
pledge, hypothecation or other disposition contrary to the provisions of this
Option, and the levy of any execution, attachment or similar process upon or
against this Option shall be null and void and without effect.
(d) In the event of a change in control or ownership of Optionor, the
Unvested Option shall vest in its entirety simultaneously with the change in
control.
4. PROCEDURE FOR EXERCISE OF OPTION. Except as provided herein, upon
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delivery of a copy of this Option with the Exercise Form annexed hereto, duly
executed, together with payment of the exercise price of the shares of Common
Stock being purchased, Optionor will deliver the shares of Common Stock to
Optionee at such address as Optionee may designate. This Option shall be deemed
to have been exercised immediately prior to the close of business on the day
after which the duly executed Exercise Form and payment of the exercise price is
received by Optionor.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
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warranties set forth in this Agreement shall survive the exercise of this
Option.
6. ADJUSTMENTS IN EXERCISE PRICE AND COMMON STOCK. If the outstanding
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shares of Optionor's Common Stock at any time shall be changed or exchanged by
declaration of a stock dividend, stock split, combination of shares, the Common
Stock then subject to this Option, and the price at which Optionee shall be
entitled to purchase such Common Stock as provided in paragraph 2 above, shall
be proportionately and equitably adjusted.
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7. REPRESENTATIONS BY OPTIONOR. In order to induce the WPG Shareholders
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and Optionee to enter into this agreement, Optionor unconditionally warrants,
represents and guarantees that:
(a) Upon exercise of the Option by Optionee pursuant to this agreement,
Optionee will thereby acquire good, absolute marketable title to the Common
Stock, which will be free and clear of all liens, encumbrances and restrictions
(excluding securities law restrictions) of any nature whatsoever.
(b) The Common Stock, when issued, will be fully paid and
non-assessable.
(c) All corporate and other proceedings required to be taken by
Optionor in order to enter into and to carry out this agreement have been duly
and properly taken. This agreement has been duly executed by Optionor and
constitutes its valid and binding obligation. The execution and delivery of
this agreement and the carrying out of its purposes will not result in the
breach of any of the terms or conditions of, or constitute a default under or
violate, Optionor's Certificate of Incorporation or By-Laws, or any agreement,
lease, mortgage, bond, indenture, license or other document or undertaking, oral
or written, to which Optionor is a party or is bound or may be affected, nor
will such execution, delivery and carrying out violate any order, writ,
injunction, decree, law, rule or regulation of any court, regulatory agency or
other governmental body.
(d) When duly executed and delivered, this Agreement is legal, valid,
and enforceable by Optionee according to its terms.
8. REPRESENTATIONS BY OPTIONEE AND THE WPG SHAREHOLDERS. In order to
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induce Optionor to enter into this agreement, Optionee and the WPG Shareholders
each individually and unconditionally warrant, represent and guarantee that:
(a) The Option is being acquired and will be taken and received for
DX3's private, personal investment for it's own account, with no present
intention of distributing any of the Option or underlying shares to others.
(b) DX3 has no contract, undertaking, agreement or arrangement with
any person or persons to sell, transfer or otherwise distribute to such persons
or to have any such person sell, transfer or otherwise distribute for DX3 any
of the Option or any interest therein, and DX3 is presently not engaged, nor
does DX3 plan to engage within the presently foreseeable future, in any
discussions with any person relative to such sale, transfer or other
distribution of any of the Option or any interest therein.
(c) DX3 has no present obligation, indebtedness or commitment
pending, nor is any circumstance in existence which will compel it to secure
funds by the sale, transfer or other distribution of any of the Option or any
interest therein, nor is DX3 a party to any plan or undertaking requiring funds
which can be consummated only by the sale, transfer or other distribution of any
of the Option or any interest therein.
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(d) DX3 fully comprehends that you are relying to a material degree on
the representations, warranties and covenants contained herein, and with such
realization authorize you to act as you may see fit in reliance thereon,
including without limitation the placement of the following legend on any stock
certificate issued, in addition to any other legends that may be imposed
thereon, and to the imposition of stop transfer orders against DX3's Option or
the underlying shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), ARE "RESTRICTED
SECURITIES," AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN A TRANSACTION WHICH, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, IS NOT REQUIRED TO BE REGISTERED
UNDER THE ACT."
(e) DX3 agrees that none of the Option or any interest therein will
be sold, transferred or otherwise disposed of unless and until registered under
the Securities Act of 1933, as amended (the "Act"), or similar successor law,
without first having presented to you or your counsel (i) an unqualified written
opinion of counsel experienced in securities law matters satisfactory to you
indicating that the proposed transfer will not be in violation of any of the
registration provisions of the Act or similar successor law, and the rules and
regulations promulgated thereunder, or (ii) a "no-action" letter to such effect
issued by the Securities and Exchange Commission. In any event and regardless
of when any such sale, transfer or other disposition of any Option or securities
or any interest therein may be made, DX3 will make no sale, transfer pledge or
other disposition of any of the Option or securities or any interest therein
without first having presented to you (i) an unqualified opinion of such counsel
indicating exemption from, compliance with, or qualification under all
applicable state securities or "blue sky" laws, and (ii) DX3's indemnification
of you against any liabilities, costs or expenses which might result should any
such transfer, sale or other disposition (or any action by any broker or dealer
in connection with the foregoing) violate or be alleged to violate the Act, the
rules and regulations promulgated thereunder, or any applicable federal laws or
state securities or "blue sky" laws or regulations or any court or
administrative order.
(f)
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(g) In the case of sales pursuant to Rule 144 of the Securities and
Exchange Commission, in addition to the matters set forth above, DX3 will
forward to you a copy of the Form 144 as filed with the Securities and Exchange
Commission, and a letter from the executing broker indicating compliance with
Rule 144. If Rule 144 is amended or if the interpretation of the Securities and
Exchange Commission thereof in effect at the time of any sale by DX3 of any of
the Option or securities has changed, DX3 will provide you with such additional
documents as you may reasonably require. DX3 understands that sales by DX3 of
any of the Option or securities made in reliance on Rule 144 could be made only
in certain limited amounts and in a specified manner, only after certain holding
periods have been met, and only when there were available specified current
public information, all in accordance with the terms and conditions of the Rule.
DX3 understands that if Rule 144 is not available, compliance with some other
exemption under the Act will be required if any of the Option or securities are
to be sold in compliance herewith but without registration under the Act.
10. NOTICES. Except as provided herein, all notices, correspondence and
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payments, etc., required or permitted to be given under this agreement shall be
in writing and shall be delivered personally or sent by registered or certified
mail return receipt requested (first-class, postage prepaid), to such party at
the address set forth above or at such other address as such party shall have
designated by notice duly given in the manner above provided. Notices given by
mail shall be deemed given four (4) days from the date of mailing.
11. ENTIRE AGREEMENT; COUNTERPARTS. This agreement contains the entire
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agreement between the parties with respect to the option. It may be executed in
any number of counterparts, each of which shall be deemed an original, but such
counterparts together constitute only one and the same instrument. For purposes
of executing this agreement, a document signed and transmitted by facsimile
machine or telecopier is to be treated as an original document.
12. INTERPRETATION. Each party has participated fully in the review
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and revision of this agreement.
13. MODIFICATION. This agreement shall become effective as of the date
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hereof. No modification or amendment of this agreement shall be effective
unless such modification or amendment shall be evidenced in writing and signed
by the parties hereto.
14. WAIVER. The failure of either party at any time to require
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performance by the other party of any provision hereof shall not affect in any
way the full right to require such performance at any time thereafter. Nor
shall the waiver by either party of a breach of any provision hereof be taken or
held to be a waiver of the provision itself. No waiver shall be deemed to be a
continuing waiver unless so expressly stated in writing.
15. NECESSARY ACTS. Each of the parties hereto hereby agrees, at the
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request of the other party, to execute such documents and perform such other
acts as may be necessary to carry out the provisions of this agreement.
16. BINDING AGREEMENT. This agreement shall be binding upon and inure to
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the benefit of the parties and their successors and assigns.
17. GOVERNING LAW. This agreement shall be governed by and construed in
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accordance with the laws of the State of California.
18. CLAUSE HEADINGS. The headings and subheadings of clauses contained
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herein are used for convenience and ease of reference and shall not limit the
scope or intent of the clause.
IN WITNESS WHEREOF, the parties have caused this agreement to be duly
executed as of the tenth day of June, 1998.
INTERACTIVE BUYERS NETWORK DX3, INC.
INTERNATIONAL, LTD.
By: By:
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Xxxxxx X. XxXxxxxxx, President Xxxxxx X. XxXxxxxxxxx, President
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Xxxxxx X. XxXxxxxxxxx Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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OPTION EXERCISE FORM
COMMON STOCK OF
INTERACTIVE BUYERS NETWORK INTERNATIONAL, LTD.
The undersigned hereby exercises the right to purchase _______ shares of
the Common Stock covered by the attached Option Agreement (the "Securities"),
according to the conditions thereof, and herewith makes payment in full in the
amount of $__________ for such shares.
Optionee unconditionally warrants, represents and guarantees that:
(a) The Securities are being acquired and will be taken and received for
it's private, personal investment for it's own account.
(d) DX3 fully comprehend that you are relying to a material degree on the
representations, warranties and covenants contained herein, and with such
realization authorize you to act as you may see fit in reliance thereon,
including without limitation the placement of the following legend on any stock
certificate issued, in addition to any other legends that may be imposed
thereon, and to the imposition of stop transfer orders against my securities:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), ARE "RESTRICTED
SECURITIES," AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN A TRANSACTION WHICH, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, IS NOT REQUIRED TO BE REGISTERED
UNDER THE ACT."
(e) DX3 agrees that none of the Securities or any interest therein will
be sold, transferred or otherwise disposed of unless and until registered under
the Securities Act of 1933, as amended (the "Act"), or similar successor law,
without first having presented to you or your counsel (i) an unqualified written
opinion of counsel experienced in securities law matters satisfactory to you
indicating that the proposed transfer will not be in violation of any of the
registration provisions of the Act or similar successor law, and the rules and
regulations promulgated thereunder, or (ii) a "no-action" letter to such effect
issued by the Securities and Exchange Commission. In any event and regardless
of when any such sale, transfer or other disposition of any Securities or any
interest therein may be made, DX3 will make no sale, transfer pledge or other
disposition of any of the Securities or any interest therein without first
having presented to you (i) an unqualified opinion of such counsel indicating
exemption from, compliance with, or qualification under all applicable state
securities or "blue sky" laws, and (ii) DX3's indemnification of you against
any liabilities, costs or expenses which might result should any such transfer,
sale or other disposition (or any action by any broker or dealer in connection
with the foregoing) violate or be alleged to violate the Act, the rules and
regulations promulgated thereunder, or any applicable federal laws or state
securities or "blue sky" laws or regulations or any court or administrative
order.
(g) In the case of sales pursuant to Rule 144 of the Securities and
Exchange Commission, in addition to the matters set forth above, DX3 will
forward to you a copy of the Form 144 as filed with the Securities and Exchange
Commission, and a letter from the executing broker indicating compliance with
Rule 144. If Rule 144 is amended or if the interpretation of the Securities and
Exchange Commission thereof in effect at the time of any sale by DX3 of any of
the Securities has changed, DX3 will provide you with such additional documents
as you may reasonably require. DX3 understand that sales by me of any of the
Securities made in reliance on Rule 144 could be made only in certain limited
amounts and in a specified manner, only after certain holding periods have been
met, and only when there were available specified current public information,
all in accordance with the terms and conditions of the Rule. DX3 understands
that if Rule 144 is not available, compliance with some other exemption under
the Act will be required if any of the Securities are to be sold in compliance
herewith but without registration under the Act.
DX3, INC.
By:____________________________________
Address: ____________________________
____________________________
____________________________
Dated: ______________, _____.
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