OPTION AGREEMENT
This
Option Agreement (this "Agreement") is made as of this ___ day of November, 2009
by Xxxx Xxxxxxxx (the “Grantor”) to _______ (the “Grantee”).
RECITALS
WHEREAS,
in consideration for the payment of $250, the Grantor has agreed to issue to the
Grantee this option to purchase ______ shares of XxXxx Mobility, Inc. (the
“Company”) on the terms and conditions set forth in this Agreement;
and
NOW
THEREFORE, in consideration of the above premises and the mutual
representations, warranties, covenants and agreements hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Grant of
Option. For the payment of $250 being made simultaneous with
the execution and delivery of this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Grantor hereby irrevocably grants the Grantee the option (the "Option") to
purchase all, or any portion of, _____ shares of the Company (the “Shares”) on
the terms and conditions set forth in this Agreement.
2. Term of the
Option. The period during which the Option may be exercised
(the "Option Period") shall commence on the date hereof and end eighteen months
from the date hereof (the "Option Expiration Date").
3. Purchase
Price. The purchase price for the Shares (the "Option Purchase
Price") upon exercise of the Option shall be $0.50 per Share.
4. Exercise of the
Option. The Option may be exercised in whole or in part at any
time during the Option Period. If the Grantee shall desire to
exercise the Option, then, on or before the Option Expiration Date, the Grantee
shall deliver to the Grantor an irrevocable written notice (the "Option Notice")
of its exercise of the Option, which notice shall specify the location, date and
time of the closing of the exercise of the Option (the "Option
Closing").
5. Deliveries at Option
Closing. At the Option Closing, the Grantee shall deliver to the Grantor
the Option Purchase Price. Within twenty business days thereof, the Grantor
shall ensure that the Company shall deliver stock certificates evidencing the
Shares purchased, in proper form for transfer with all required transfer tax
stamps affixed.
6. Representations and
Warranties of the Grantor. The Grantor represents, warrants
and covenants to the Grantee that:
6.1 Authority. The
Grantor has all requisite power and authority to execute, deliver and perform
his obligations under this Agreement and has taken all action necessary in order
to execute and deliver this Agreement. This Agreement has been duly
executed and delivered by the Grantor and constitutes the valid and binding
obligation of the Grantor, enforceable against it in accordance with its
terms.
6.2 Absence of Conflict.
Neither the execution and delivery of this Agreement by Grantor nor the
consummation of the transactions contemplated hereby will (i) violate, conflict
with, result in a breach or termination of, constitute a default under or give
rise to a right to terminate, amend, cancel or accelerate (or an event which,
with notice or lapse of time or both, would constitute the same) (1) any
agreement, commitment, note, bond, deed of trust, indenture, lease, mortgage or
other instrument to which Grantor is a party or by which any of his properties
or assets is bound, or (2) any law, order of a governmental authority or any
other restriction of any kind or character applicable to Grantor or any of his
properties or assets.
6.3 Consents. No
consent, waiver, registration, certificate, approval, grant, franchise,
concession, permit, license, exception or authorization of, or declaration or
filing with, or notice or report to, (i) any governmental authority or (ii) any
other person (including, but not limited to, any party to a contract or other
agreement or commitment of Company), is required in connection with the
execution, delivery and performance of this Agreement.
7. Representations and
Warranties of the Grantee. The Grantee represents, warrants
and covenants to the Grantor that:
7.1 The
Grantee has such knowledge, sophistication and experience in business and
financial matters as to be capable of evaluating the merits and risk of the
prospective acquisition of the Option and the Shares and can bear the economic
risk of such investment, and that if he exercises the Option, he will be
purchasing the Shares for his own account and not with a view to the
distribution thereof or with any present intention of distributing or selling
any of such stock except in compliance with the Securities Act of 1933, as
amended (the “Securities Act”), and applicable state securities
laws.
7.2 The
Grantee understands and agrees that the offer and sale of the Option and the
Shares have not been registered under the Securities Act and may be resold only
if registered pursuant to the provisions thereunder and applicable state
securities laws or if an exemption from registration is
available. The issuance of the Option and the other transactions
contemplated herein are exempt from the registration requirements of the
Securities Act.
7.3 The
Grantee is an “Accredited Investor” as such term is defined in Rule 501(a)(1-8)
of Regulation D promulgated under the Securities Act.
7.4 The
Grantee is capable of evaluating the merits and risks of investing in the Option
and the Shares
7.5 The
Grantee has a pre-existing personal or business relationship with the Company,
one of the Company’s officers, or one of the Company’s
affiliates. The Grantee is not subscribing for the Option because of
or following any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or presented at any seminar or meeting, or any solicitation by a person
other than an authorized representative of the Company.
7.6 The
Grantee is not relying on the Grantor, the Company with respect to any legal,
investment or tax considerations involved in the purchase, ownership and
disposition of the Option or the Shares. The Grantee has relied solely on the
advice of, or has consulted with, in regard to the legal, investment and tax
considerations involved in the purchase, ownership and disposition of the Option
and the Shares, the Grantee’s own legal counsel, business and/or investment
adviser, accountant and tax adviser.
7.7 If
the Grantee is a corporation, partnership, trust or other entity: (i) it is
authorized and qualified to purchase this Option; (ii) the person signing this
Agreement on behalf of such entity has been duly authorized by such entity to do
so; and (iii) such entity was not organized or reorganized for the specific
purpose of acquiring the Option.
2
8. Amendments. This
Agreement may not be changed orally, but only by an agreement in writing and
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
9. GOVERNING LAW; JURISDICTION;
WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF DELAWARE AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. BOTH PARTIES
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS RESPECTIVE
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF
DELAWARE SITTING IN DELAWARE AND OF THE UNITED STATES DISTRICT COURT OF
DELAWARE, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR, TO THE EXTENT PERMITTED
BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS AGREEMENT OR ANY OTHER RELATED
DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW. COMPANY HEREBY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING FOR THE ENFORCEMENT OF THIS AGREEMENT.
10. Notices. All
notices and communications shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as provided in the Subscription Agreement.
11. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns and
heirs and personal representatives in the case of the Grantor. This
Agreement and the rights granted hereto are not assignable.
12. Severability. In
the event that any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Agreement
will continue in full force and effect without said provision and the parties
agree to replace such provision with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such provisions; provided,
however, that no such severability will be effective against a party if
it materially and adversely changes the economic benefits of this Agreement to
such party.
13. Further
Assurances. The parties shall each cooperate and use (or cause
its agents to use) its best efforts to promptly take or cause to be taken all
necessary actions, and do or cause to be done all things necessary, proper or
advisable under this Agreement and applicable laws to consummate and make
effective all transactions contemplated by this Agreement as soon as practicable
following the request of the party.
3
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first set forth above.
|
[name
of Subscriber]
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
|
Xxxx
Xxxxxxxx
|
|
4
