10.2
THIS OPTION AND THE UNDERLYING SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND NO SALE OR TRANSFER THEREOF MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO
THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT.
Right to Purchase up to 800,000 shares of Common Stock
-of-
XXXXXXX HOLDINGS, INC.
----------------------
Common Stock Purchase Option
XXXXXXX HOLDINGS, INC., a Nevada corporation (the "Company"), hereby
certifies that the holder of this Option identified on the signature page hereof
or its assigns (the "Optionor" or the "Holder"), is entitled, subject to the
terms set forth below, to purchase from the Company at any time or from time to
time before 5:00 P.M., California time, on December 31, 2001 (the "Exercise
Period"), the number of fully paid and non-assessable shares of Common Stock,
par value $.001 per share, of the Company set forth on the signature page hereof
(the "Option Shares"), at a purchase price per share of One Dollar (USD$1.00)
per share (such purchase price per share as adjusted from time to time, as
herein provided, is hereinafter referred to as the "Purchase Price"). The number
and character of such shares of Common Stock and the Purchase Price are subject
to adjustment as provided herein.
As used herein, the following terms, unless the context otherwise
requires, have the following respective meanings:
(c) The term "Company" shall include
XXXXXXX HOLDINGS, INC. and any corporation or other entity that shall
succeed or assume the obligations of the Company hereunder.
(d) The term "Common Stock" shall mean
the Company's Common Stock, par value $.001 per share, as authorized on
the date hereof.
(e) The term "Option" shall mean this
Common Stock Purchase Option. (f) The term "Option Shares" shall mean
the shares of Common Stock issuable upon exercise of this Option.
1
2. Exercise of Options.
-------------------
2.1.Full Exercise. This Option may be exercised as to the
Option Shares in full by the Holder hereof (without the payment of any further
consideration than the aggregate Purchase Price) by surrender of this Option,
with the attached form of subscription duly executed by such Holder and payment
in the amount of the Purchase Price in form and substance satisfactory to the
Company and that the Company has received payment in cash for each such Option
Share, in aggregate, to the Company at its principal office.
2.2. Partial Exercise. This Option may be exercised in part as
to the Option Shares by the Holder hereof (without the payment of any further
consideration) by surrender of this Option in the manner and at the place
provided in Section 1.1. On any such partial exercise, the Company at its
expense will forthwith issue and deliver to the Holder hereof a new Option or
Options of like tenor, in the name of the Holder hereof, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Option or Options may still be exercised.
3. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Option in full or in part, and in any
event within 10 days thereafter, the Company at its expense will cause to be
issued in the name of and delivered to the Holder hereof, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock. The Company shall issue fractions of shares of Common Stock on the
exercise of this Option to the extent required.
4. Adjustments upon Changes in Capitalization. The total number of
shares of Common Stock which may be purchased upon the exercise of this Option
shall be appropriately adjusted by the Company for any increase or decrease in
the number of outstanding shares of Common Stock resulting from a stock
dividend, subdivision, combination, or reclassification of shares or any other
change in the corporate structure or shares of the Company.
5. Notices of Record Date. In the event of
----------------------
(a) any taking by the Company of a record of
the Holders of any class or securities for the purpose of
determining the Holders thereof who are entitled to receive
any dividend or other distribution, or any right to subscribe
for, purchase or otherwise acquire any shares of stock or any
class or any other securities or property, or to receive any
other right, or
(b) any capital reorganization of the
Company, any reclassification or recapitalization of the
capital stock of the Company or any transfer of all or
substantially all the assets of the Company to or
consolidation or merger of the Company with or into any other
person, or
(c) any voluntary or involuntary
dissolution, liquidation or winding- up of the Company, or
(d) any proposed issue or grant by the
Company of any shares of stock of any class or any other
securities, or any right or option to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any
other securities (other than the issue of Common Stock on the
exercise of this Option),
then and in each such event the Company will mail or cause to be mailed to each
Holder of this Option a notice specifying (i) the date on which any such record
is to be taken for the purpose of such dividend, distribution or right, (ii) the
date on which any such reorganization, reclassification, recapitalization,
2
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any is to be fixed, as of which the Holders of
record of Common Stock (or other securities) shall be entitled to exchange their
shares of Common Stock (or other securities) for securities or other property
deliverable on such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up, and
(iii) the amount and character of any stock or other securities, or rights or
options with respect thereto, proposed to be issued or granted, the date of such
proposed issue or grant and the persons or class of persons to whom such
proposed issue or grant is to be offered or made. Such notice shall be mailed at
least 20 days prior to the date specified in such notice on which any such
action is to be taken.
6. Reservation of Stock, etc., Issuable on Exercise of this Option. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of this Option, all shares of Common Stock from time to
time issuable on the exercise of this Option.
7. Representations and Warranties. The Holder represents and warrants
to the Company that:
(a) It has received, reviewed and been given
full access to information appropriate to its determination of
whether to invest in the Company; it has further been given an
opportunity to discuss issues relevant to its determination of
whether to invest in the Company with principals of the
Company.
(b) The undersigned has full legal capacity
to enter into this Option and has sufficient business and
investment experience to make an independent evaluation of the
merits and risks of an investment in the Company.
(c) The undersigned has carefully reviewed
the merits and risks of, and other considerations relating to,
a possible investment in the Company.
(d) The undersigned has read and understood
the restrictive legends set forth in this Option and
understands that the exercise of the Option, and the resulting
issuance of the Company's common stock, is subject to various
restrictions; that the common stock underlying the Option have
not and will not be registered under the Securities Act of
1933, as amended, or under the securities laws of any state,
that the common stock underlying the Option cannot be sold
until they are registered under said Act, or are otherwise
exempt from registration or qualification thereunder; that the
Company will not record the sale or other transfer of any of
the common stock underlying the Option without compliance with
said securities laws; and that the Holder must bear the
economic risk of ownership of the common stock underlying the
Option for an indefinite period of time. The undersigned, on
behalf of the Holder, shall not sell, assign, transfer or
otherwise dispose of all or any part of the common stock or
its interest therein except in compliance with applicable U.S.
Federal and State securities laws.
(e) The undersigned understands that
Xxxxxx's investment in the common stock underlying the Option
is not liquid and that such investment is speculative and
involves considerable risk. The undersigned, on behalf of the
Holder, has adequate means of providing for its current needs
and personal contingencies and has no need for liquidity in
this investment.
(f) Except for this Option Agreement, and
any other information that its advisors have requested and
received directly from the Company, neither the undersigned
nor its advisors have been furnished any other offering
material or literature upon which we have relied in connection
with the determination of whether or not to purchase the
common stock underlying the Option.
(g) The undersigned and the Holder's
advisors, if any, have had an opportunity to review all the
pertinent facts, to ask questions, and to obtain any
additional information, to the extent possessed or obtainable
without unreasonable effort and expense, regarding the
Company, its key employees, its business, financial condition,
3
the offering of the Option and the common stock underlying
such Option, the risks of investment in the Company and any
other matters relating to any of the above, and any additional
information necessary to verify the accuracy of any
representation made or information set forth by the Company.
The Company has supplied all material requested, if any, and
has given complete and satisfactory answers to all inquiries,
if any, that the Holder's advisors and the undersigned have
put to it concerning the matters listed above.
(h) All information the undersigned has
supplied in the Option Agreement is true, accurate, and
complete and fairly reflects the situation to the best of the
undersigned's knowledge.
(i) The offer and sale of the common stock
underlying the Option to the Holder has been made in an
offshore transaction, meaning the offer was made to the Holder
outside the United States and, if the Option is exercised, the
Holder is buying the common stock underlying the Option
outside the United States. The undersigned certifies that he
is not a U.S. person and that the Holder is not a U.S. entity,
meaning that neither he nor the Holder resides or is domiciled
in the United States of America, its territories or
possessions, or any State of the United States, or the
District of Columbia.
(j) Neither the undersigned, nor the Holder,
is acquiring the common stock underlying the Option as part of
any activity undertaken for the purpose of conditioning the
market for common stock in the United States and will not
refer to its purchase of the common stock in any advertisement
in any publication of general circulation in the United
States.
(k) The undersigned understands that the
information provided by the Company in connection with the
purchase of the common stock underlying the Option does not
constitute legal, investment, tax or other advice.
(l) The Holder acknowledges that a legend to
the following effect will appear or be deemed to appear upon
any certificate representing the common stock underlying the
Option:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SHARES
CANNOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (A) AN EFFECTIVE
REGISTRATION STATEMENT, OR (B) AN OPINION OF COUNSEL FOR THE HOLDER,
SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
4
8. Replacement of this Option. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Option and, in the case of any such loss, theft or destruction of any Option, on
delivery of an indemnity agreement or security reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, on surrender
and cancellation of such Option, the Company at Holder's expense will execute
and deliver, in lieu thereof, a new Option of like tenor.
9. Option Agent. The Company may, by written notice to the Holder of
this Option, appoint an agent for the purpose of issuing Common Stock on the
exercise of this Option pursuant to Section 1 hereof and replacing Options
pursuant to Section 6 hereof, or either of the foregoing, and thereafter any
such issuance or replacement, as the case may be, shall be made at such office
by such agent.
10. Negotiability, etc. This Option is issued upon the following terms,
to all of which each Holder or owner hereof by the taking hereof consents and
agrees:
If in compliance with all applicable law, this Option is fully
assignable by the Holder without the Company's prior written consent; and
Until the Company receives written notice of any transfer of
the Option, the Company may treat the registered Holder hereof as the absolute
owner hereof for all purposes.
11. Notices, etc. All notices and other communications from the Company
to the Holder of this Option shall be mailed by first class registered or
certified mail, postage prepaid, or Federal Express or any other generally
recognized overnight courier at such address as may have been furnished to the
Company in writing by such Holder or, until any such Holder furnishes to the
Company an address, then to, and at the address of, the last Holder of this
Option who has so furnished an address to the Company.
12. Miscellaneous. This Option and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Option shall be construed and enforced in accordance with and
governed by the laws of the State of California. The headings in this Option are
for purposes of references only, and shall not limit or otherwise affect any of
the terms hereof. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision. If
any arbitration, litigation, action, suit, or other proceeding is instituted to
remedy, prevent or obtain relief from a breach of this Option, in relation to a
breach of this Option or pertaining to a declaration of rights under this
Option, the prevailing party will recover all such party's attorneys' fees
incurred in each and every such action, suit or other proceeding, including any
and all appeals or petitions therefrom.
5
Dated as of April ___, 2001
XXXXXXX HOLDINGS, INC.
By:
Title: ________________________________
OPTION HOLDER:
INTERNATIONAL FIDUCIARY TRUST & HOLDINGS, S.A.
Number of Option Granted: 800,000 shares
6
FORM OF SUBSCRIPTION
(To be signed only on exercise of this Option)
OPTION EXERCISE NOTICE AND SUBSCRIPTION AGREEMENT
Attention: Corporate Secretary
1. Exercise of Option. The undersigned ("Purchaser") hereby elects to
purchase __________________________ shares (the "Shares") of common stock, $.001
par value, of Xxxxxxx Holdings, Inc. (the "Company"), pursuant to the stock
option agreement as of April ___, 2001, by and between ___________________ and
the Company (the "Option"). All capitalized terms not otherwise defied herein
shall have the meanings set forth in the Option.
2. Representations of Purchaser. Purchaser
represents and Options to the Company that:
(a) Purchaser has received, read and
understands: (i) the Option; and (ii) this Option Exercise
Notice and Agreement ("Agreement") and agrees to be bound by
the terms and conditions thereof.
(b) Purchaser has access to all information
regarding the Company and its present and prospective
business, assets, liabilities and financial condition which
have been filed with the Securities and Exchange Commission
pursuant to Section 13 of the Securities Act of 1934, as
amended (the "Exchange Act"), and Purchaser has had the
opportunity to ask questions of the Company's representatives
concerning such matters and this investment.
(c) Purchaser is fully aware that investment
in the Shares involves risk and that no assurances can be
given as to the future performance of the Shares.
(d) If Purchaser is "directly or indirectly
the beneficial owner of more than 10 per cent of the Shares,"
or an "officer" or "director" of the Company, within the
meaning of Section 16 of the Exchange Act, Purchaser
recognizes that the Shares purchased hereby may give rise to
liability to the Company for short swing profits under Section
16 of the Exchange Act.
(e) Purchaser is acquiring the Shares for
Purchaser's own account and for investment and not with a view
to distribution. The Purchaser understands that such Shares
may not have been registered under the Securities Act of 1933,
as amended (the "Act"), and, accordingly, such Shares may not
be sold or transferred in the absence of such registration or
exemption therefrom under the Act.
(f) Purchaser is not purchasing the Shares
on the basis of material information that has not been
publicly disclosed.
(g) If Purchaser effects a transfer of any
of the Shares purchased hereby which does not comply with
applicable law or any of the provisions of this Agreement,
Purchaser agrees to indemnify and hold the Company harmless
from any loss, liability, claim, damage or expense occasioned
thereby, including, without limitation, reasonable attorney's
fees and costs of suit.
(h) Purchaser acknowledges and understands
that no United States federal or state agency has passed upon
or made any recommendation or endorsement of the Shares
purchased hereby.
7
(i) Purchaser is fully aware of the tax
consequences associated with the exercise of the Option and
the disposition of the Shares acquired thereby.
3. Restrictive Legend. Purchaser understands and agrees that if the
sale by Purchaser of the Shares is not covered by an effective Registration
Statement under the Securities Act the Company may, in its discretion, cause the
legend set forth below, or a legend substantially equivalent hereto, to be
placed upon any certificate(s) evidencing ownership of the Shares purchased
hereby, together with any other legends that may be required by state or federal
securities laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SHARES
CANNOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (A) AN EFFECTIVE
REGISTRATION STATEMENT, OR (B) AN OPINION OF COUNSEL FOR THE HOLDER,
SATISFACTORY TO COUNSEL FOR THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
4. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States mail by certified or registered mail, return
receipt requested, with postage and fees prepaid, addressed to the other party
at its address as shown below beneath its signature, or to such other address as
such party may designate in writing from time to time to the other party.
5. Further Instruments. The parties agree to
execute such further instruments and to take such further
action as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
6. Entire Document. The Option (including the
Registration Terms and Conditions attached thereto) is
incorporated herein by reference. This Agreement and the
Option constitute the entire agreement of the parties and
supersede all prior undertakings, agreements, representations,
warranties and understandings with respect to the subject
matter hereof.
7. Headings. The headings contained in this
Agreement are for reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
8. Governing Law. This Agreement and all action
taken hereunder shall be enforced, governed and construed by
and interpreted under the laws of the State of California
applicable to contracts made and to be performed wholly within
such State without giving effect to the principles of conflict
of laws thereof.
9. Purchase Price; Delivery of Payment;
Withholding. The purchase price of the Shares purchased
hereunder is $_________, being equal to the number of Shares
to be purchased hereunder pursuant to the exercise of the
Option described in Paragraph 1 hereof, multiplied by the
exercise price as set forth in the Option. Purchaser hereby
pays the purchase price of $_________ in full by delivery of
$________ in cash.
8
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Agreement this _____ day of
Name: ______________________________________
Address: ____________________________________
--------------------------------------------
--------------------------------------------
9
