EXHIBIT 4.5
SEPTIMA ENTERPRISES, INC.
STOCK OPTION AGREEMENT
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STOCK OPTION AGREEMENT ("Agreement"), made as of the 22nd day of February
1994, by and between SEPTIMA ENTERPRISES, INC., a Colorado corporation (the
"Company"), and XXXXXXX XXXXXX (the "Optionee");
W I T N E S S E T H:
WHEREAS, the Company and the Optionee have provided for the issuance to the
Optionee of an option to purchase the Company's common stock, all as more
particularly set forth herein:
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, it is hereby agreed as follows:
1. Grant of Option. Subject to and upon the terms and conditions set
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forth in this Agreement, the Company hereby grants to the Optionee a stock
option (the "Option") to purchase up to Twenty Thousand (20,000) shares of the
Company's common stock (collectively, the "Shares"), during the specified term
of this Option, at a price of One Dollar ($1.00) per Share.
2. Specified Term. The term of the Option shall be the period commencing
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on February 22, 1994, and ending on February 22, 1999 (the "Term"). The Option
shall be of no further force and effect and shall not be exercisable to any
extent after the expiration of the Term.
3. No Transferability. The Option may not be transferred or assigned
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except by will or by the laws of descent and distribution, subject to the terms
of Section 9 of this Agreement.
4. Partial Exercise. Exercise of the Option may be made in one or more
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installments at any time and from time-to-time within the above limits, except
that the Option may not be exercised for a fraction of a Share. Any fractional
Share with respect to which an installment of the Option cannot be exercised
because of the limitation contained in the preceding sentence shall remain
subject to the Option and shall be available for later purchase by the Optionee
in accordance with the terms hereof.
5. Method of Payment. The Option exercise price is payable in United
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States dollars and must be paid either in cash, by certified or cashier's check,
by delivery of Shares having an aggregate fair market value (as determined by
the Company) equal as of the date of exercise to the Option exercise price, or
by any combination of the foregoing, equal in amount to the Option exercise
price.
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6. Method of Exercising Option. Subject to the terms and conditions of
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this Agreement, the Option may be exercised by written notice to the Company, at
the principal executive office of the Company. Such notice shall state the
election to exercise the Option and the number of Shares in respect of which it
is being exercised and shall be signed by the Optionee. Such notice shall be
accompanied by payment of the full purchase price of such Shares, and the
Company shall deliver a certificate or certificates representing such Shares as
soon as practicable after the notice and such payment have been received. The
certificate or certificates for the Shares as to which the Option shall have
been so exercised shall be registered in the name of the Optionee or permitted
assignee and shall be delivered to the Optionee or permitted assignee. All
Shares that shall be purchased upon the exercise of the Option as provided
herein shall be fully paid and non-assessable. The Optionee shall not have the
rights of a shareholder with respect to the Shares covered by the Option
hereunder until the date of issuance of a stock certificate to the Optionee for
such Shares.
7. Restricted Shares; Purchase for Investment. Optionee understands that
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the Shares to be purchased upon an exercise of the Option have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), or
under the laws of any jurisdiction. Optionee agrees that Optionee is, either
alone or through advisors, sophisticated and experienced in financial, business
and investment matters and, as a result, Optionee is in a position to evaluate
the merits and risks of an investment in the Company. Optionee agrees that (i)
the Optionee's purchase of Shares upon an exercise of the Option will not be
made with a view toward the "distribution" of such Shares, as defined in the
1933 Act; (ii) such Shares may not be transferred or hypothecated unless, in the
opinion of counsel to the Company, such transfer or hypothecation would be in
compliance with the registration provisions of the 1933 Act or pursuant to an
exemption therefrom; and (iii) the Optionee agrees to sign a certificate to such
effect at the time of exercising the Option and agrees that the certificate for
the Shares so purchased may be inscribed with a legend to ensure compliance with
the 1933 Act.
8. Legends. The certificates representing the Shares issued or to be
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issued hereunder shall be stamped or otherwise imprinted with legends
substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND HAVE BEEN ACQUIRED FOR AN INVESTMENT AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AN OPINION OF COUNSEL ACCEPTABLE TO COUNSEL FOR THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER SUCH LAWS.
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9. Death of Optionee. If the Optionee dies, the Option may be exercised
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during the ninety (90) day period beginning with the date of the Optionee's
death, to the extent of the number of Shares with respect to which the Optionee
could have exercised on the date of the Optionee's death, by the Optionee's
estate, personal representative or beneficiary to whom this Option has passed
pursuant to Section 3. At the expiration of such 90-day period or the scheduled
expiration date, whichever is the earlier, the Option shall terminate and the
only rights hereunder shall be those as to which the Option was properly
exercised before such termination.
10. Notices. All notices, requests, consents and other communications
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required or permitted under this Agreement shall be in writing (including
electronic transmission) and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, electronically
transmitted, or mailed (airmail if international) by registered or certified
mail (postage prepaid), return receipt requested, addressed to:
If to the Optionee: If to the Company:
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Xxxxxxx Xxxxxx Septima Enterprises, Inc.
P. O. Box 1731 Attention: R. Xxxxx Xxxxxx
Xxxxxxxx XX 00000 000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx:___________ Xxxx Xxxx XX 00000
Telefax:_____________ Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by electronic transmission; and (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
11. No Obligation to Exercise Option. The grant and acceptance of the
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Option hereunder imposes no obligation on the Optionee to exercise the Option.
12. Entire Agreement. This Agreement represents the entire understanding
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and agreement between the parties with respect to the subject matter hereof and
supersedes all other negotiations, understandings and representations (if any)
made by and between such parties.
13. Enforcement Costs. If any civil action, arbitration or other legal
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proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy
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and post-judgment proceedings), incurred in that civil action, arbitration or
legal proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys' fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use taxes and all
other charges billed by the attorney to the prevailing party.
14. Governing Law. This Agreement and all transactions contemplated by
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this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida.
15. Amendments. The provisions of this Agreement may not be amended,
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supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
16. Binding Effect. All of the terms and provisions of this Agreement
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shall be binding upon, inure to the benefit of, and be enforceable by the
parties and their respective administrators, executors, legal representatives,
heirs, successors and permitted assigns, whether so expressed or not.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Confirmation of execution
by electronic transmission of a facsimile signature page shall be binding upon
any party so confirming.
18. Jurisdiction and Venue. Any civil action or legal proceeding arising
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out of or relating to this Agreement shall be brought in the courts of record of
the State of Florida in Palm Beach County or the United States District Court,
Southern District of Florida, West Palm Beach Division. Each party consents to
the jurisdiction of such court in any such civil action or legal proceeding and
waives any objection to the laying of venue of any such civil action or legal
proceeding in such court. Service of any court paper may be effected on such
party by mail, as provided in this Agreement, or in such other manner as may be
provided under applicable laws, rules of procedure or local rules.
19. No Construction Against Draftsmen. The parties acknowledge that this
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is a negotiated agreement, and that in no event shall the terms hereof be
construed against either party on the basis that such party, or its counsel,
drafted this Agreement.
20. Severability. If any provision of this Agreement or any other
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agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in
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two or more ways, one of which would render the provision invalid or otherwise
voidable or unenforceable and another of which would render the provision valid
and enforceable, such provision shall have the meaning which renders it valid
and enforceable.
21. Waivers. The failure or delay of any party at any time to require
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performance by another party of any provision of this Agreement, even if known,
shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by any
party of any breach of any provision of this Agreement should not be construed
as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on any party in any circumstance shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SEPTIMA ENTERPRISES, INC.
By: /s/ R. Xxxxx Xxxxxx
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R. Xxxxx Xxxxxx
President and Chief Executive Officer
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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