Exhibit 10.7
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS OR PURSUANT TO A WRITTEN OPINION OF COUNSEL (WHICH
COUNSEL AND OPINION SHALL BE REASONABLY SATISFACTORY TO THE COMPANY) THAT SUCH
REGISTRATION IS NOT REQUIRED.
CALL AND PUT OPTION AGREEMENT
CALL AND PUT OPTION AGREEMENT (the "Option Agreement"), dated as of
December __, 2001, by and between Xxxxxxx Global Corp., a Delaware corporation
(the "Optionor"), and Third Security, LLC, a Virginia limited liability company
(the "Option Holder").
WHEREAS, the Option Holder and the Optionor are negotiating to enter into a
Stock Purchase Agreement (the "Purchase Agreement") whereby the Option Holder
will purchase and the Optionor will sell shares of common stock valued at
between $5,000,000 and $5,666,666 such that the Option Holder will own between
45% to 51%, respectively, of the common shares of Optionor;
WHEREAS, concurrent herewith, the Option Holder is loaning (the "Loan"),
the Optionor $1,500,000 pursuant to that certain Secured Convertible Note (the
"Convertible Note");
WHEREAS, as part of the total investment contemplated by the parties hereto
and as partial consideration for the Loan, the Optionor grants to the Option
Holder an option to purchase from the Optionor (the "Call Option"), subject to
the terms and conditions set forth herein, $1,000,000 of the shares of Common
Stock, par value $.0001 per share ("Common Stock") of the Optionor at a purchase
price set forth below;
WHEREAS, concurrent with the execution hereof, the Option Holder intends to
partially exercise the Call Option (as defined below) for approximately $300,000
of the shares of Common Stock of the Optionor; and
WHEREAS, as part of the total investment contemplated by the parties hereto
and as partial consideration for the Loan, the Optionor grants to the Option
Holder an option to sell to the Optionor (the "Put Option"), subject to the
terms and conditions set forth herein, all of the shares of Common Stock of the
Optionor owned by the Option Holder as of the date of such exercise of the Put
Option, whether acquired pursuant to the Call Option, upon conversion of the
Convertible Note or otherwise (the "Put Option Shares").
ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS:
1. Grant of Call Option; Grant of Put Option.
1.1. Grant of Call Option: Exercise Price. Subject to the terms and
conditions set forth herein, the Optionor grants to the Option Holder an
exclusive and irrevocable option (the "Call Option") to purchase from the
Optionor, in whole or in part, up to $1,000,000 of shares of Common Stock (the
"Call Option Shares"), at a purchase price per share (the "Call Exercise Price")
equal to $________. The number of Call Option Shares shall be subject to
adjustment as provided in Section 2.
1.2. Duration of Call Option. This Call Option may be exercised in
whole or in part at any time or from time to time after the date hereof and on
or prior to December 17, 2001 (the "Call Option Termination Date").
1.3. Grant of Put Option. Subject to the terms and conditions set
forth herein, the Optionor grants to the Option Holder an exclusive and
irrevocable option (the "Put Option," and together with the Call Option, the
"Options") to sell to the Optionor, in whole or in part, any and all of its Put
Option Shares at the same price that the Option Holder paid for such shares (the
"Put Exercise Price").
1.4. Duration of Put Option. This Put Option may be exercised in whole
or in part at any time or from time to time after the date hereof and prior to
the closing of the transactions contemplated by the Purchase Agreement (the "Put
Option Termination Date"), in the sole and absolute discretion of the Option
Holder.
1.5. Manner of Exercising the Options.
(a) The Call Option or the Put Option, as the case may be, shall
be exercisable by the Option Holder or any permitted assigns by surrender of a
completed and fully executed Option Exercise Notice (in the form attached hereto
as Exhibit A hereto in the case of the Call Option or Exhibit B in the case of
the Put Option, in either case, the "Option Exercise Notice") to the Optionor,
not less than one business day prior to the date specified in such Option
Exercise Notice for the closing of the purchase and sale of the Call Option
Shares or the Put Option Shares with respect to such Option Exercise Notice (the
"Option Closing Date") pursuant to either the Call Option or the Put Option, as
the case may be.
(b) In the case of the exercise of the Call Option, on the Option
Closing Date, the Option Holder shall deliver to the Optionor by wire transfer
of immediately available funds, the aggregate Call Exercise Price for the Call
Option Shares so acquired, against delivery by the Optionor to the Option Holder
of a stock certificate in proper form to transfer to the Option Holder the Call
Option Shares so acquired. Upon effecting the transfer of the Call Option
Shares, the Option Holder shall remit such payment to the Optionor.
(c) In the case of the exercise of the Put Option, on the Option
Closing Date, the Optionor shall deliver to the Option Holder a note in the same
form as the Convertible Note with an original principal balance equal to the
aggregate Put Exercise Price for the Put Option Shares so reacquired, against
delivery by the Option Holder to the Optionor of a duly executed assignment in
proper form to transfer the Put Option Shares back to the Optionor.
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2. Adjustment of Call Option Shares; Substitute Shares.
2.1. Changes in Capital Structure. The number and type of Call Option
Shares transferable by the Optionor upon exercise of the Call Option by the
Option Holder shall be equitably adjusted in the event of any stock split,
combination, stock dividend payable in shares of stock or recapitalization, or
conversion or exchange for other securities or property as a result of a merger,
sale, liquidation or reorganization of the Optionor or the issue of any
Distribution or Distribution Securities (as defined in Section 2.2), or other
similar change in capital structure of the Optionor or as a result of any other
disposition or conversion of the Call Option Shares or the proceeds therefrom
(including, without limitation, any Distribution or Distribution Securities).
2.2. Distribution Securities. If any Distribution (as hereinafter
defined) of securities or other property issued in connection with a transaction
contemplated by Section 2.1 ("Distribution Securities") with respect to the Call
Option Shares is due, the cash, certificates or other instruments evidencing
title to such Distribution or Distribution Securities, together with appropriate
instruments of transfer shall be delivered to the Option Holder upon exercise of
the Call Option. Any Distribution or Distribution Securities shall become a part
of the Call Option Shares to which it relates, and upon the exercise of the Call
Option shall be transferred to the Option Holder without extra cost. A
"Distribution" means any property receivable by the Optionor as owner of any
Call Option Shares, or as owner of any Distribution or Distribution Securities,
and shall include, without limitation, non-cash dividends, cash, securities or
other property arising from a reorganization, recapitalization, stock split,
liquidation, sale or merger of the Optionor or the issuer of any security which
is a Distribution or Distribution Security, or otherwise.
2.3. Below Call Exercise Price Issuances. If at any time while all or
any portion of the Call Option remains outstanding all or any portion of the
Call Option shall be exercised subsequent to (a) any sale of shares of Common
Stock at a price per share less than the Call Option Exercise Price then
applicable, or (b) any issuance of any security convertible into shares of
Common Stock with a conversion price per share less than the Call Option
Exercise Price then applicable, then in any and every such event, the Call
Option Exercise Price shall be reduced and shall be equal to such lower sales or
conversion price.
2.4. Purchase Price Adjustment. In the event that the purchase price
of the shares of the Optionor Common Stock to be agreed upon in the Purchase
Agreement (the "Purchase Price") is lower than the Call Exercise Price set forth
herein, the number of Call Option Shares shall be increased proportionally such
that the Call Exercise Price would have equaled such Purchase Price as of the
Option Closing Date.
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3. Representations, Warranties and Covenants of the Optionor.
3.1. Organization and Powers. The Optionor and each of its material
subsidiaries are corporations duly incorporated, validly existing and in good
standing under the laws of their states of incorporation, with all requisite
corporate power and authority to carry on the business in which they are engaged
and to own the properties they own, and the Optionor has all requisite power and
authority to execute and deliver this Option Agreement and to consummate the
transactions contemplated hereby. The Optionor and each of its material
subsidiaries are duly qualified and licensed to do business and are in good
standing in all jurisdictions where the nature of their business makes such
qualification necessary, except where the failure to be qualified or licensed
would not have a material adverse effect on the business of the Optionor and its
material subsidiaries, taken as a whole.
3.2. Litigation. There are no legal actions or administrative or
arbitration proceedings or investigations instituted, or to the best knowledge
of the Optionor threatened, against the Optionor, that could reasonably be
expected to have a material adverse effect on the business of the Optionor and
its subsidiaries taken as a whole, or which concerns the transactions
contemplated by this Option Agreement.
3.3. SEC Documents. The Optionor's audited consolidated financial
statements as of December 31, 2000, contained in its Annual Report on Form 10-K
for the year ended December 31, 2000 (the "Form 10-K"), including the notes
contained therein, fairly present the consolidated financial position of the
Optionor at the respective dates thereof and the results of its consolidated
operations for the periods purported to be covered thereby. Such financial
statements have been prepared in conformity with generally accepted accounting
principles consistently applied with prior periods subject to any comments and
notes contained therein. All liabilities, contingent and other, of the Optionor
and its subsidiaries, are set forth in the financial statements as of September
30, 2001 contained in its Quarterly Report on Form 10-Q for the nine months
ended September 30, 2001 (the "Form 10-Q"), excepting only liabilities incurred
in the ordinary course of business subsequent to December 31, 2000, and
liabilities of the type not required under generally accepted accounting
principles to be reflected in such financial statements. Since September 30,
2001, there has been no material adverse change in the financial condition of
the Optionor from the financial condition stated in such financial statements.
Prior to the issuance of shares contemplated by this Option Agreement, the
Optionor has __________________ shares of Common Stock outstanding and _________
shares of Common Stock outstanding on a fully diluted basis (taking into account
all outstanding warrants, options and convertible securities). All of such
outstanding shares of capital stock have been, or upon issuance will be, validly
issued, fully paid and non-assessable. No shares of capital stock of the
Optionor are subject to preemptive rights or any other similar rights of the
stockholders of the Optionor. Except as disclosed in the Form 10-K or Form 10-Q,
(i) the Optionor has no indebtedness for borrowed money and no agreement
providing for indebtedness for borrowed money, (ii) the Optionor has no share
purchase agreements, rights plans or agreements containing similar provisions
and no agreements containing anti-dilution provisions, and (iii) no
anti-dilution provisions which have, individually or in the aggregate, any
dilutive effect on the Option Holder's investment are triggered as a result of
any of the transactions contemplated hereby.
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3.4. No Brokers. The Optionor has not employed any broker, agent,
finder or investment banker in connection with any transaction contemplated by
this Option Agreement.
3.5. Authorization. The Optionor, by appropriate and required
corporate action, has (i) duly authorized the execution of this Option Agreement
and the issuance and delivery of the Call Option Shares and (ii) reserved for
issuance sufficient shares of Common Stock as may be necessary from time to time
to be issued upon exercise of the Call Option. The Call Option Shares are not
subject to preemptive or other rights of any stockholders of the Optionor and
when issued in accordance with the terms of this Option Agreement and the
Certificate of Incorporation of the Optionor, the Call Option Shares will be
validly issued, fully paid and nonassessable and free and clear of all pledges,
liens and encumbrances.
3.6. No Conflicts. Performance of this Option Agreement and compliance
with the provisions hereof will not violate any provision of any applicable law
or of the Certificate of Incorporation or Bylaws of the Optionor, or of any of
its subsidiaries, and, will not conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon, any of
the properties or assets of the Optionor, or of any of its subsidiaries,
pursuant to the terms of any indenture, mortgage, deed of trust or other
agreement or instrument binding upon the Optionor, or any of its subsidiaries,
other than such breaches, defaults or liens which would not have a material
adverse effect on the Optionor and its subsidiaries taken as a whole.
3.7. Full Disclosure. The Form 10-K, the Form 10-Q and the other
documents (the "Disclosure Documents"), filed by the Optionor subsequent to
December 31, 2000, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), taken together, do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein to make the
statements contained therein not misleading. No representation or warranty made,
nor any document, statement, or financial statement prepared or furnished by the
Optionor in connection herewith, taken together, contains any untrue statement
of material fact, or omits to state a material fact necessary to make the
statements or facts contained herein or therein not misleading.
3.8. Validity and Binding Nature. This Option Agreement, has been duly
executed and delivered by the Optionor and constitutes a legal, valid and
binding obligation of the Optionor, enforceable against the Optionor in
accordance with its terms.
3.9. Consents. No registration, authorization, approval, qualification
or consent of any court or governmental authority or agency is necessary in
connection with the execution and delivery and performance of this Option
Agreement or the offering, issuance or sale of the Call Option Shares under this
Option Agreement.
3.10. Timely Filings. The Optionor has timely filed with the SEC all
documents required to zbe filed by the Optionor under the Exchange Act.
3.11. Investment Company. The Optionor is not now, and after the sale
of the Call Option Shares under this Option Agreement and the application of the
net proceeds from the sale of the Call Option Shares will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
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3.12. No Registration. Subject to the accuracy of the Option Holder's
representations and warranties in Section 4 of this Agreement, the offer, sale,
and issuance of the Call Option Shares in conformity with the terms of this
Option Agreement constitute transactions exempt from the registration
requirements of Section 5 of the Securities Act and from the registration or
qualification requirements of the laws of any applicable state or United States
jurisdiction.
3.13. No Offers. Neither the Optionor, nor any of its affiliates, nor
any person acting on its or their behalf, has directly or indirectly made any
offers or sales in any security or solicited any offers to buy any security
under circumstances that would require registration under the Securities Act of
the issuance of the Call Option Shares to the Option Holder. The issuance of the
Call Option Shares to the Option Holder will not be integrated with any other
issuance of the Optionor's securities (past, current or future) for purposes of
the Securities Act or any applicable rules of the American Stock Exchange. The
Optionor will not make any offers or sales of any security (other than the Call
Option Shares) that would cause the offering of the Call Option Shares to be
integrated with any other offering of securities by the Optionor for purposes of
any registration requirement under the Securities Act or any applicable rules of
the American Stock Exchange.
3.14. Compliance with Laws. The business and operations of the
Optionor and its subsidiaries have been and are being conducted in compliance
with all applicable state and local laws, ordinances, rules, regulations and
orders except those laws, ordinances, rules, regulations and orders the failure
with which to comply would not, in the aggregate, have a material adverse
effect.
3.15. Tax Returns and Audits. The Optionor and its subsidiaries have
duly filed all income, franchise and other federal, state and local tax returns,
notices and reports which they individually or collectively have been or are
required to file except where the failure to file such returns would not have a
material adverse effect. The provisions for federal, state and local taxes
reflected in the financial statements included in the Disclosure Documents, as
they relate to the Optionor, are adequate to cover the liabilities of the
Optionor for such taxes with respect to the periods then ended and for all prior
periods.
3.16. Employee Benefit Plans.
(a) All Employee Plans and their related trusts have been and are
maintained in material compliance with applicable requirements of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code") and all other federal and state
statutes and regulations relating to employee benefit plans. "Employee Plans"
shall be defined to include all employee welfare benefit plans (as defined in
Section 3(1) of ERISA), employee pension benefit plans (as defined in Section
3(2) of ERISA) and all bonus, stock option, stock purchase, benefit, profit
sharing, savings, vacation, retirement, disability, insurance, incentive,
deferred compensation and other similar fringe or employee benefit plans,
programs or arrangements for the benefit of, or relating to, any employee of the
Optionor or its subsidiaries which the Optionor or its subsidiaries contribute
to or maintain.
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(b) Except as provided in the Disclosure Documents, neither the
Optionor nor any of its subsidiaries has any material liability with respect to
any "employee benefit plan," as defined in Section 3(3) of ERISA, currently or
formerly maintained by the Company.
3.17. Further Assurances. Upon the reasonable request of the Option
Holder, the Optionor will prepare, execute and deliver any further instruments
and do any further acts that may be necessary to carry out more effectively the
purpose of this Option Agreement.
4. Representations and Covenants of the Option Holder.
4.1. Investment Representations.
(a) The Call Option Shares are being acquired (i) for the Option
Holder's own account, not for the account of any other person and (ii) for
investment and not with a view to distribution or resale except in compliance
with applicable laws regulating securities;
(b) The Option Holder is capable of evaluating the merits and
risks of its investment in the securities;
(c) The Option Holder understands and acknowledges that an
investment in the Optionor as represented by the Call Option Shares is
speculative in nature and is subject to a risk of loss in whole or in part; and
(d) The Option Holder understands and acknowledges that it must
bear the economic risk of investment for an indefinite period of time because
the transfer to the Option Holder of the Call Option Shares and the Distribution
and Distribution Securities has not been registered under the Securities Act,
and the Call Option Shares and the Distributions and Distribution Securities
cannot be transferred by the Option Holder unless such transfer is registered
under the Securities Act or registration is not required in connection with such
transfer.
5. Miscellaneous.
5.1. Amendment. This Agreement may only be amended by a writing signed
by the Optionor and the Option Holder.
5.2. Assignment.
(a) The Optionor may not assign this Option Agreement or any of
the Call Option Shares, Distributions or Distribution Securities without the
prior written consent of the Option Holder. Any attempt to assign this Option
Agreement, any interest therein or any such Call Option Shares, Distributions or
Distribution Securities and any levy of execution, attachment, or similar
process on such securities or property shall be null and void. Subject to the
foregoing, this Option Agreement shall be binding on and inure to the benefit of
the successors and assigns of the Optionor.
(b) The Option Holder may not assign any of its right, title and
interest in this Option Agreement other than to an affiliate of the Option
Holder without the prior consent of the Optionor, which shall not be
unreasonably withheld. Following any permitted assignment, this Option Agreement
shall be binding upon and inure to the benefit of any successor and assign. Such
assignment shall be conditioned on compliance with any applicable state and
federal securities laws and, upon request by the Optionor, the Option Holder
shall furnish an opinion of counsel to such effect, reasonably satisfactory to
the Optionor.
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5.3. Entire Agreement; Controlling Document. This Option Agreement
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes any and all prior negotiations, correspondence and
understandings between the parties with respect to the subject matter hereof,
whether oral or in writing.
5.4. Notices. All notices and other communications under this Option
Agreement shall be in writing, shall be effective when received, and shall in
any event be deemed to have been received on the date of delivery if delivered
personally or by telecopier; on the second business day after the business day
of deposit with the U.S. Postal Service for delivery by first class mail,
registered or certified, postage prepaid; or on the first business day after the
business day of deposit with a courier for overnight delivery, freight prepaid;
in each such case, addressed as follows (until any such address is changed by
notice duly given):
To Option Holder: Third Security LLC The Governor
With a Copy to: Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: X. Xxxxxx Xxxxxxx, Esq.
To Optionor: Xxxxxxx Global Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (212) ___________
Attention: Xx. Xxxxx Xxxxxxxx
With a Copy to: Beckman, Millman, Barandes & Xxxxxxx, LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
5.5. Counterparts. This Option Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.6. Severability. If any provision of this Option Agreement shall be
determined to be invalid or unenforceable, the remainder shall be valid and
enforceable to the maximum extent possible.
5.7. Headings. The section headings used in this Option Agreement are
intended principally for convenience and shall not by themselves determine the
rights and obligations of the parties to this Option Agreement.
5.8. Delay and Waiver. No delay on the part of any party in exercising
any right under this Option Agreement shall operate as a waiver of such right.
The waiver by any party of any other term or condition of this Option Agreement
shall not be construed as a waiver of a subsequent breach or failure of the same
term or condition or a waiver of any other term or condition contained in this
Option Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement the
day and year first above written.
OPTIONOR:XXXXXXX GLOBAL CORP.
By:_______________________________
Xxxxx Xxxxxxxx
Chairman and Chief Executive Officer
OPTION HOLDER:
THIRD SECURITY, LLC
By:_______________________________ Xxxxxx X. Xxxx Manager
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Exhibit A
Call Option Exercise Notice
December __, 2001
Xxxxxxx Global Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Chairman and Chief Executive Officer
Dear Xx. Xxxxxxxx:
1. Exercise of Call Option. Effective as of the above date, the undersigned
hereby exercises its option to purchase _____ shares of Common Stock of Xxxxxxx
Global Corp., pursuant to the Call and Put Option Agreement (the "Option
Agreement"), dated December 4, 2001, by and between Xxxxxxx Global Corp. (the
"Optionor") and Third Security LLC (the "Option Holder"). The exercise price per
share is $_______ for an aggregate purchase price of $_______. Capitalized terms
used but not defined herein shall have their respective meanings as set forth in
the Option Agreement.
2. Delivery of Payment. The undersigned has wire transferred the above
aggregate purchase price to the Optionor and attached is a confirmation of such
transfer.
3. Delivery of Shares. You are instructed to deliver the share certificates
representing the Call Option Shares to the undersigned as required by the Option
Agreement.
Submitted by:
THIRD SECURITY, LLC
By:_______________________________ Xxxxxx X. Xxxx Manager
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Exhibit B
Put Option Exercise Notice
____________, 200_
Xxxxxxx Global Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Chairman and Chief Executive Officer
Dear Xx. Xxxxxxxx:
1. Exercise of Put Option. Effective as of the above date, the undersigned
hereby exercises its option to sell _____ shares of Common Stock of Xxxxxxx
Global Corp., pursuant to the Call and Put Option Agreement (the "Option
Agreement"), dated December 4, 2001, by and between Xxxxxxx Global Corp. (the
"Optionor") and Third Security LLC (the "Option Holder"). The exercise price per
share is $_______ for an aggregate sales price of $_______ (the "Aggregate Put
Exercise Price"). Capitalized terms used but not defined herein shall have their
respective meanings set forth in the Option Agreement.
2. Delivery of Payment. You are instructed to issue and deliver a note
payable in the name of the Option Holder in the same form as the Convertible
Note with an original principal balance equal to the Aggregate Put Exercise
Price (the "Put Shares Convertible Note") for the Put Option Shares set forth
herein.
3. Delivery of Shares. Upon receipt of the Put Shares Convertible Note, the
undersigned will deliver to your attention the share certificates representing
the Put Option Shares together with duly exercised assignments in proper form to
transfer the Put Option Shares as required by the Option Agreement.
Submitted by:
THIRD SECURITY, LLC
By:_______________________________ Xxxxxx X. Xxxx Manager
