EXHIBIT 4.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is entered
into this 7th day of June, 2002, by and between Reality Wireless Networks, Inc.,
a Nevada corporation (the "Company") and The Xxxx Law Group, PLLC, a Washington
professional limited liability company (the "Grantee"). Each of the Company and
the Grantee are also referred to in this Agreement as the "Parties."
RECITALS
WHEREAS, the Company and the Grantee are parties to that certain letter
agreement dated July 20, 2001 (the "Engagement Agreement"), pursuant to which
the Company engaged the Grantee as legal counsel to the Company.
WHEREAS, pursuant to the Engagement Agreement, (i) the Grantee has provided
certain legal services to the Company, (ii) the Company currently owes the
Grantee approximately $163,000 (the "Amount Due") for legal services rendered to
the Company by the Grantee, (iii) the Company desires to induce the Grantee to
continue providing legal services to the Company, and (iv) the Company desires
to compensate the Grantee for $48,900 of the Amount Due in the form of an option
to purchase shares of common stock of the Company, at a value of $0.50 per
underlying share, which underlying shares of common stock are registered under
the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Form S-8, filed by the Company with the Securities and Exchange Commission on
May 10, 2002.
WHEREAS, (i) on June 7, 2002, the last sale and purchase of the Company's
common stock on the Over-the-Counter Bulletin Board was consummated at a
purchase price $0.51 per share, (ii) the Company is prepared to offer certain of
its Series A Preferred Stock in a private offering exempt from the registration
requirements of the Securities Act pursuant to Rule 506 of Regulation D of the
Securities Act, (iii) the Company has engaged certain placement agents to make
such private offering in the near future, (iv) the Company has prepared a
Confidential Private Placement Memorandum for such anticipated private offering,
(vi) the placement agents have advised the Company that offering price for each
share of Series A Preferred Common Stock should be $5.00 per share, each share
convertible into ten (10) shares of common stock of the Company, and (vii) the
Company currently desires to offer and sell its shares of Series A Preferred
Stock for a purchase price of $5.00 per share in such anticipated private
offering.
WHEREAS, the Board of Directors of the Company (the "Board of Directors")
has authorized the grant to the Grantee, in exchange for $48,900 of the Amount
Due to the Grantee for legal services rendered by the Grantee as an advisor to
the Company pursuant to the Engagement Agreement, a non-qualified stock option
(the "Option") to purchase the number of shares of the Company's common stock
(the "Common Stock") specified in paragraph 1 of this Agreement, at the price
specified in paragraph 1 of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the Board
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of Directors, the Company hereby grants to the Grantee, in consideration of
legal services performed for the benefit of the Company pursuant to the
Engagement Agreement, an option (the "Option") to purchase the number of common
shares ("Option Shares") of Common Stock set forth below, at the exercise price
set forth below:
Number of Option Shares: ninety-seven thousand, eight hundred (97,800)
Exercise Price per Option Share: $0.0001 per share
2. Term. The Option and this Agreement shall expire ten (10) years from the
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date of this Agreement.
3. Shares Subject To Exercise. The Option shall be immediately exercisable
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and shall remain exercisable for the entire Term specified in paragraph 2 of
this Agreement. Payment of the Exercise Price of the Option Shares being
purchased, may be made by a cashless exercise procedure whereby the Option
Shares issued upon exercise of the Option will be sold with the Grantee
receiving the difference between the Exercise Price and the sale price, in cash,
and the Company receiving the Exercise Price for the Option Shares, in cash.
4. Method and Time of Exercise. The Option may be exercised in whole or
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from time to time in part by written notice delivered to the Company stating the
number of Option Shares with respect to which the Option is then being
exercised, together with a check, credit to any outstanding legal fees owed by
the Company to the Grantee or wire transfer to the Company in the amount equal
to the Exercise Price multiplied by the number of Option Shares then being
issued pursuant to the written notice of exercise. Not less than one hundred
(100) Option Shares may be purchased upon exercise of the Option at any one time
unless the number of Option Shares for which exercise of the Option is being
made is all of the Option Shares then issuable upon exercise of the Option. Only
whole shares shall be issued upon exercise of the Option.
5. Tax Withholding. As a condition to exercise of the options Grantee
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shall be liable to pay to all applicable federal, state and local taxes.
6. Exercise Following Termination of Engagement Agreement. The Option
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shall not terminate as a result of the termination of Grantee's services as a
legal advisor to the Company pursuant to the Engagement Agreement.
7. Transferability. The Option and this Agreement may not be assigned or
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transferred except by will or by the laws of descent and distribution, and with
consent of the Company.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
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shareholder with respect to the Option Shares issued from time to time upon
exercise of the Option until the earlier of: (1) the date of issuance of a stock
certificate or stock certificates to the Grantee applicable to the Option Shares
then issuable to the Grantee upon exercise of the Option and (2) the date on
which the Grantee or his nominee is recorded as owner of such Option Shares on
the Company's stock ledger by the Company's registrar and transfer agent, which
may be the Company. Except as set forth in paragraph 13 of this Agreement, no
adjustment will be made for dividends or other rights for which the record date
is prior to the earlier of the events described in clauses (1) and (2) of this
paragraph.
9. Restrictions on Transfer. The Grantee represents and agrees that, upon
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the Grantee's exercise of the Option in whole or in part, unless there is in
effect at that time under the Securities Act of 1933, as amended, a registration
statement relating to the Option Shares, the Grantee will acquire the Option
Shares for the purpose of investment and not with a view to their resale or
further distribution, and that upon such exercise hereof, the Grantee will
furnish to the Company a written statement to such effect, satisfactory to the
Company in form and substance.
10. Shares Qualified for Listing. Company represents that it is a
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"reporting issuer" under the Securities Exchange Act of 1934, as amended, and
its Common Stock is qualified for trading or quotation on the Over-the-Counter
Bulletin Board.
11. Representation Regarding Registration of Option Shares. The Company
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represents that the Option Shares are registered under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a Form S-8, filed by the
Company with the Securities and Exchange Commission on May 10, 2002.
12. Notices. All notices to the Company shall be addressed to the Company
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at the principal office of the Company at 000 X. Xxxxxxxx Xxx., Xxxxx X.,
Xxxxxxxx, Xxxxxxxxxx 00000, and all notices to the Grantee shall be addressed to
the Grantee at the address and facsimile number of the Grantee set forth on the
signature page of this Agreement or, if different, the last address and
facsimile number on file with the Company, or to such other address and
facsimile number as either may designate to the other in writing. A notice shall
be deemed to be duly given if and when enclosed in a properly addressed sealed
envelope deposited, postage prepaid and followed by facsimile to the addressee.
In lieu of giving notice by mail as aforesaid, written notices under this
Agreement may be given by personal delivery to the Grantee or to the Company (as
the case may be) by nationally recognized courier or overnight delivery service.
13. Adjustments. If there is any change in the capitalization of the
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Company after the date of this Agreement affecting in any manner the number of
kind of outstanding shares of Common Stock of the Company, whether by stock
dividend, stock split, reclassification or recapitalization of such stock, or
because the Company has merged or consolidated with one or more other
corporations (and provided the Option does not thereby terminate pursuant to
paragraph 14 of this Agreement), then the number and kind of shares then subject
to the Option and the exercise price to be paid for the Option Shares shall be
appropriately adjusted by the Board of Directors; provided, however, that in no
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event shall any such adjustment result in the Company being required to sell or
issue any fractional shares. Any such adjustment shall be made without change in
the aggregate exercise price applicable to the unexercised portion of the
Option, but with an appropriate adjustment to the exercise price of each Option
Share or other unit of security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other provision
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of this Agreement, in the event of the reorganization, merger or consolidation
of the Company with one or more corporations as a result of which the Company is
not the surviving corporation, or the sale of substantially all the assets of
the Company or of more than fifty percent (50%) of the then outstanding stock of
the Company to another corporation or other entity in a single transaction, the
Option granted hereunder shall terminate, provided, however, that not later than
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five (5) days before the effective date of such merger or consolidation or sale
of assets in which the Company is not the surviving corporation, the surviving
corporation may, but shall not be so obligated to, tender to the Grantee an
option to purchase a number of shares of capital stock of the surviving
corporation equal to the number of Option Shares then issuable upon exercise of
the Option, and such new option or options for shares of the surviving
corporation shall contain such terms, conditions and provisions as shall be
required substantially to preserve the rights and benefits of the Option and
this Agreement.
15. Miscellaneous.
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15.1 Entire Agreement. This Agreement and the Engagement Agreement
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contain the entire agreement between the Parties, and may not be waived,
amended, modified or supplemented except by agreement in writing signed by the
Party against whom enforcement of any waiver, amendment, modification or
supplement is sought. Waiver of or failure to exercise any rights provided by
this Agreement and the Engagement Agreement in any respect shall not be deemed a
waiver of any further or future rights.
15.2 Independent Legal Advice. The Company represents and acknowledges that
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the Company has had the opportunity to be represented in connection with the
negotiation, documentation and closing of the transaction contemplated by this
Agreement by legal counsel independent of The Xxxx Law Group, PLLC.
15.3 Governing Law. This Agreement shall be construed under the internal
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laws of the State of Washington, and the Parties agree that the exclusive
jurisdiction for any litigation or arbitration arising from this Agreement shall
be in Seattle, Washington.
15.4 Counterparts. This Agreement may be executed by facsimile and in two
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or more counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
15.5 Severability. If one or more provisions of this Agreement are held to
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be unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were excluded and shall be enforceable in accordance with its terms.
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of
the date set forth below.
The Company: REALITY WIRELESS NETWORKS, INC.
By: ________________________________
Name: Xxxx Xxxxxxx
Title: Vice President, Business Development;
Secretary and Treasurer
The Grantee: THE XXXX LAW GROUP, PLLC
By: ________________________________
Name: Xxxxx X. Xxxx
Its: Member
Grantee's Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Grantee's Telephone No.: (000) 000-0000
Grantee's Facsimile No.: (000) 000-0000
