MEMORANDUM OF AGREEMENT
made as of 1st day of August, 2002
BETWEEN:
JVWEB, INC.
a corporation organized under
the laws of the State of Delaware,
(herein after called the "Optionor")
OF THE FIRST PART,
XXXX X. XXXXX
of the City of Houston
in the State of Texas, USA,
(herein after called the "Optionee")
OF THE SECOND PART.
WHEREAS the board of directors of the Optionor has determined that the
granting of an option to the Optionee to purchase up to 600,000 authorized and
unissued common shares as presently constituted of the Optionor (the "Optioned
Shares"), on the toxins and conditions set forth below, is in the best interests
of the Optionor and is security holders;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of these
premises and of the sum of $10,00 (U.S.) paid by the Optionee to the Optionor
and for other good and valuable consideration (the receipt and sufficiency of
which is hereby acknowledged), it is hereby agreed by and between the parties
hereto as follows:
1. GRANT OF OPTION
1.1 Subject to the receipt of any required shareholder or regulatory
approvals, the Optionor hereby grants to the Optionee, on .the terms
and conditions hereinafter set forth, an irrevocable option (the
"Option") to purchase at any time or from time to time during the
period hereinafter referred to and subject to the provisions of section
2,1, all ox any part of 600,000 authorized and unissued Shares of the
Optionor (the said Shares being hereinafter called the "Optioned
Shares") for a purchase price of $0.50 (U.S.) per Optioned Share.
2. EXERCISE OF OPTION
2.1 The Optionee shall have the right to exercise the Option at any time or
from time to time with respect to all or any part of 600,000 of the
Optioned Shares, subject, however to the vesting dates having been
attained with respect to the following increments:
Monthly allotments of 25_000 options per month for twenty-four
months
and/or at any time prior to August 1st , 2007 at 4 p.m. (California) or
at such earlier time as may be determined in accordance with Section
2.3, 2.4. 2.5 and Article 4 (the "Expiry Time") and at the Expiry Time
the Option shall expire and terminate as to such of the Optioned Shares
in respect of which the Option has not been exercised.
2.2 Subject to the provisions of Article 1 and section 2.1, the Optionee
shall have the right to exercise the Option at any time or from time to
time with respect to. all or any part of the Optioned Shares. No
written notice of tine Optionce electing to exercise the Option in
whole or in part shall be necessary, but, payment by or on behalf of
the Optionee by certified cheque or bank draft payable to or to the
order of the Corporation at the said price of $0.50 (U.S.) per Optioned
Share in respect of so many of the Optioned Shares as the Optionee
shall from time to time determine to take up and purchase, shall be an
exercise pro tanto of the Option hereby granted.
Upon each such exercise of the Option, the Optionor shall cause the
Corporation's registrar and transfer agent to deliver forthwith to the
Optionee at 5444 Westheimer, Suite 2080. Xxxxxxx, Xxxxx 00000, a
definitive certificate or certificates registered in the name of the
Optionee, or as the Optionee may otherwise direct in writing,
representing in the aggregate such number of the Optioned Shares as the
Optionee shall have then paid for.
2.3 In the event of the death of the Optionee on or prior to the Expiry
Date, provided that at, the time of such death the Optionee was either
a director, officer, employee or service provider of the Optionor, the
Option may be exercised as to all or any of the Optioned Shares in
respect of which the Optionee would have been entitled to exercise the
Option hereunder at the time of his or her death, as if he or she had
survived, by the legal representatives of the Optionee at any time up
to and including, but not after, that date which is 90 days following
the date- of death of the Optionee or prior to the close of business on
the Expiry Date, whichever is earlier.
2.4 In the event the Optionee is discharged with cause as an employee or
officer of the Optionor prior to the Expiry Date, the option and this
agreement shall in all respects forthwith cease and terminate arid be
of not further force or effect whatsoever as to such of the Optioned
Shares in respect of which the Option had not previously been
exercised, upon notice of such resignation being received by the
Optionor, or upon notice of such discharge being given by the Optionor
to the Optionee. For the purpose of this agreement, the determination
by the Optionor shall be binding upon the Optionee.
2.5 In the event of the termination of employment of the Optionee (either
as an employee or officer) by the Optionor other than in the
circumstances referred to in Sections 2.4 or 2.5 above or the Optionee
ceases to be a director or service provider of the Optionor, the
Optionee may exercise the Option to the extent that the Optionee was
entitled to do so at the tune of such termination or employment at any
time up to and including, but not after, that date which is 30 days
following such date, or prior to clue close of business on the Expiry
Date, whichever is earlier. Not withstanding the foregoing, this
Section 2.5 is not applicable to the termination of employment of the
Optionee if the Optionee was, at the time of termination, a director of
the Optionor.
3. TERMINATION OF OPTION BY OPTIONEE
3.1 Notwithstanding anything herein provided, the Optionee may at any time,
in its sole discretion, terminate the Option by notice in writing
mailed by first class registered mail, postage prepaid, addressed to,
or by notice in writing delivered to, the Optionor at 0000 Xxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx, X.X.X. 00000, or sent by
telecopy to the Optionor, and forthwith upon mailing, delivery or
telecopy of any such notice in writing, and notwithstanding that any
such notice in writing may not have been received by the Optionec, the
Option shall forthwith expire and terminate as to such of the Optioned
Shares in respect of which the Option has not been exercised.
4. OPTIONEE NOT REQUIRED TO EXERCISE THE OPTION
4.1 Nothing herein contained or done pursuant hereto shall obligate the
Optionee to purchase and/or pay for, or the Optionor to issue, any
Optioned Shares except those Optioned Shares in respect of which the
Optionee shall have exercised it Option to purchase hereunder in the
manner hereinbefore provided.
5. CHANGE OE SHARES
5.1 In the event of any subdivision or change of the Shares of the Optionor
at any time prior to the Expiry Time into a greater number of Shares,
the optionor shall deliver, in connection with any issue of Optioned
Shares occurring after the record date of the subdivision or change,
such additional number of Shares as would have resulted from such
subdivision or change if such issue of Optioned Shares had been prior
to the record date of such subdivision or change.
5.2 In the event of any consolidation or change of the Shares of the
Optionor at any time prior to the Expiry Time into a lesser number of
Shares, the number of Shares delivered by the Optionor on any exercise
thereafter of the Option shall be reduced to such number of Shares as
would have resulted from such consolidation or change if such exercise
of the Option hereby granted had been prior to the record date of such
consolidation or change.
5.3 In the event of any reclassification of the shares of the Optionor at
any time up to the Expiry Time, the number and class of shares
deliverable by the Optionor on any exercise thereafter of the Option
hereby granted shall be the number and class of shares as would have
resulted from such reclassification if the Option hereby granted had
been exercised prior to the date of such reclassification.
6. DIVIDENDS, DISTRIBUTIONS, ETC.
6.1 If the Optionor shall at any time prior to the Expiry Time pay any
dividend or make any distribution (whether or not payable in shares or
other securities of the Optionor), or make any payment by way of return
of capital on or in respect of the Shares, the Optionee shall be
entitled to receive upon any exercise thereafter of the Option (in
addition to the number of Optioned Shares that the Optionee otherwise
would have been entitled to receive on the exercise of the Option) such
additional number of shares or other securities of the appropriate
class of the Optionor or such capital payment as would have been
payable on the Shares that would have been issuable on such exercise of
the Option if they had been outstanding on the record date for payment
of such dividend or distribution or capital payment, and the Optionor
covenants anal agrees that in the event of the payment of any dividend
or distribution payable in any shares or other securities of the
Optionor as aforesaid it will reserve and set aside a sufficient number
of shares or other securities of the appropriate class in which any
such dividend or distribution shall be payable to enable it to fulfill
its obligations hereunder.
7. RESERVATION OFF' OMONED SHARES
7.1 The Optionor covenants that it has duly reserved, set aside and
allotted the Optioned Shares to and in favour of the Optionee, its
successors and assigns, and that upon the exercise of the Option in
accordance with the terms hereof and payment of the said price as
aforesaid, the Optioned Shares in respect of which the Optionee shall
have duly taken up and paid for hereunder shall be duly issued and
outstanding as fully paid and non-assessable.
8. GENERAL
8.1 Time shall be of the essence of this agreement.
8.2 The Optionee represents and warrants to the Optionor, as a continuing
representation and warranty that shall be true and correct on the date
hereof and on each date that the Optionee exercises the Option as if
made and given on and as of each such date, that the Optionee is
acquiring the Option and will acquire the Optioned Shares purchased by
it upon any exercise of the Option as principal.
8.3 The Optionor and the Optionee severally covenant and agree to use their
respective reasonable best efforts to comply with, satisfy, and fulfill
promptly all conditions and requirements imposed by or arising out of
legal, regulatory and administrative requirements applicable to the
grant of the Option hereunder and to the issue of Shares on the
exercise of the Option.
8.4 This agreement is non-assignable.
8.5 This agreement shall be governed by and construed in accordance with
the laws of the State of California and the federal laws of the United
States applicable therein.
8.6 This agreement may be executed by the partied in counterparts and when
so executed such counterparts shall constitute a single agreement.
IN WITNESS WHEREOF this agreement has been executed by the parties hereto as of
the date first above written.
SIGNED, SEALED & DELIVERED ) Optionor
in the presence of: ) JVWEB INC.
)
) /s/ Xxxxxxx Xxxxxxxxx
_____________________ ) per: __________________________
Witness ) A.S.O.
)
) Optionee
)
) /s/ Xxxx X. Xxxxx
_____________________ ) __________________________
Witness ) XXXX X. XXXXX
