STOCK OPTION AGREEMENT
STOCK
OPTION AGREEMENT, made as of February 13, 2007 (the “Execution
Date”),
by
and between a21, Inc., a Delaware corporation (the “Company”),
and
Xxxxxx X. Xxxxx, an individual (the “Optionee”).
W
I T N E
S S E T H:
WHEREAS,
The Company granted the Optionee an option on the same terms and conditions
as
are contained in this Stock Option Agreement on January 2, 2004 (the
“Grant
Date”),
which
agreement has been lost, stolen, destroyed or was never delivered to the
Optionee; and
WHEREAS,
the Company and the Optionee are entering into this Stock Option Agreement
in
replacement of the agreement that was lost, stolen, destroyed or was never
delivered to the Optionee.
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the validity and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Grant
of Option.
Subject
to the terms and conditions of this Stock Option Agreement, the Company confirms
that it granted to the Optionee the right (the “Option”)
to
purchase all or any part of an aggregate of 1,505,514 shares of common stock
of
the Company, par value $.001 per share (“Common
Stock”).
2. Vesting
Schedule. This
Option is fully vested (i.e., exercisable) as of the Grant Date.
3. Exercise
Price.
The
price of each share of Common Stock purchased pursuant to this Option shall
be
U.S. $0.30.
4. Exercise
of Option.
The
Optionee may exercise the Option, in whole or in part, with respect to any
whole
number of vested shares of Common Stock subject to the Option. The Optionee
shall exercise the Option by giving the Company written notice, in a form
prescribed by the Company. Such notice shall specify the number of shares of
Common Stock to be purchased and shall be accompanied by payment, in U.S.
dollars, in cash or certified check or by official bank check, of an amount
equal to the Option exercise price per share of Common Stock, multiplied by
the
number of shares of Common Stock as to which the Option is being exercised;
provided, however, that the purchase price may be paid by (i) surrender or
delivery to the Company shares of Common Stock owned by the Optionee for at
least six months having a Fair Market Value (as defined below), on the date
of
exercise equal to the portion of the purchase price being so paid, or (ii)
the
delivery of funds equal to the purchase price by a broker, in accordance with
Regulation T promulgated by the Board of Governors of the Federal Reserve System
or as otherwise may be permissible by law. The Board may impose from time to
time such limitations as it deems appropriate on the use of shares of Common
Stock to exercise the Option.
For
purposes of this Stock Option Agreement, the term “Fair
Market Value”
means,
with respect to Common Stock on any given date, the closing sales price of
the
Common Stock for such date (or, in the event that the Common Stock is not traded
on such date, on the immediately preceding trading date) on any stock exchange
on which the Common Stock may be listed. If the Common Stock is not listed
on a
stock exchange, but is quoted on the OTC Bulletin Board or on the Pink Sheets,
the Fair Market Value of the Common Stock shall be the mean of the closing
bid
and asked prices per share of the Common Stock for such date. If the Common
Stock is not quoted or listed as set forth above, Fair Market Value shall be
determined by the Board in good faith by any fair and reasonable
means.
5. Delivery
of Common Stock Certificate.
Subject
to Section 6, as soon as practicable after receipt of the notice and payment
referred to in Section 4 above, the Company shall deliver to the Optionee (or,
in the case of a broker financed exercise described in clause (ii) of Section
4,
to the broker) a certificate or certificates for such shares of Common Stock;
provided, however, that the time of such delivery may be postponed by the
Company for such period of time as the Company may require for compliance with
any law, rule or regulation applicable to the issuance or transfer of shares
of
Common Stock.
6. Payment
of Taxes.
Prior
to or concurrently with delivery by the Company to the Optionee of a certificate
or certificate(s) representing such shares of Common Stock, the Optionee shall,
if required by the IRS, upon notification of the amount due, promptly pay or
cause to be paid, in cash, any amount necessary to satisfy any tax requirements
(or otherwise satisfy such requirements in a manner satisfactory to the
Company).
7. Termination
of Option.
This
Option and all rights of the Optionee to purchase shares of Common Stock
hereunder shall terminate on January 31, 2008 (the “Expiration
Date”)
unless
terminated earlier in accordance with the terms hereof.
8. Notice.
All
notices, request, demands, waivers and communications required or permitted
to
be given hereunder shall be in writing and shall be delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by facsimile,
as follows:
To
Company:
a21,
Inc.
0000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attn:
Telecopy:
_______________
To
Optionee:
To
the
address of the Optionee
on
file
with the Company.
or
to
such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. In
the
case of mailing, all such notices, requests, demands, waivers and communications
shall be deemed to have been received on the third business day after the date
of the mailing. In the case of facsimile after 5:00 P.M. local time at the
place
of delivery or on a day that is not a business day, all such notices, requests,
demands, waivers and communications shall be deemed to have been received on
the
next business day.
9. Certain
Adjustments.
(a) In
the
event that the Company or the division, subsidiary or other affiliated entity
for which the Optionee performs services is sold (including a stock or an asset
sale), spun off, merged, consolidated, reorganized or liquidated, the Board
may
determine that (i) the Option shall be assumed, or a substantially equivalent
Option shall be substituted, by an acquiring or succeeding entity (or an
affiliate thereof) on such terms as the Board determines to be appropriate;
(ii)
upon written notice to the Optionee, provide that the Option shall terminate
immediately prior to the consummation of the transaction unless exercised by
the
Optionee within a specified period following the date of the notice (such period
of time to be no less than 20 days); (iii) in the event of a sale or similar
transaction under the terms of which holders of Common Stock receive a payment
for each share of Common Stock surrendered in the transaction (the “Sales
Price”),
make
or provide for a payment to each Optionee equal to the amount by which (A)
the
Sales Price times the number of shares of Common Stock subject to the Option
(to
the extent such Option is then exercisable) exceeds (B) the aggregate exercise
price for all such shares of Common Stock; or (iv) may make such other equitable
adjustments as the Board deems appropriate.
(b) In
the
event of any stock dividend or split, recapitalization, combination, exchange
or
similar change affecting the Common Stock, the Board shall make any or all
of
the following adjustments as it deems appropriate to equitably reflect such
event: (i) adjust the option price to be paid for any or all shares subject
to this Stock Option Agreement, (ii) adjust the number of shares of Common
Stock (or such other security as is designated by the Board) subject to this
Stock Option Agreement and (iii) make any other equitable adjustments or
take such other equitable action as the Board, in its discretion, shall deem
appropriate.
(c) Any
and
all adjustments or actions taken by the Board pursuant to this Section shall
be
conclusive and binding for all purposes.
10. No
Restriction on the Right of the Company to Effect Corporate
Changes.
The
Option granted hereunder shall not affect in any way the right or power of
the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company’s capital
structure or its business, or any merger or consolidation of the Company, or
any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior
to or
affect the Common Stock or the rights of holders thereof or which are
convertible into or exchangeable for Common Stock, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
11. No
Stockholder Rights.
The
Optionee shall have no rights as a stockholder of the Company with respect
to
shares of Common Stock subject to the Option until payment for such shares
shall
have been made in full and until the date of the issuance of stock certificates
for such shares of Common Stock. If the Optionee pays the Option exercise price
with shares of Common Stock, the Optionee shall continue to be the stockholder
of record with respect to the shares which it has tendered as exercise payment
until the Optionee becomes the holder of record of the shares covered by the
Option.
12. Nontransferability.
(a) Except
as
provided in paragraph (b) or by
will
or the laws of descent and distribution,
the
Option is not transferable, and may be exercised only by the Optionee. In the
event of any attempt by the Optionee to transfer, assign, pledge, hypothecate
or
otherwise dispose of the Option or of any right hereunder, except as provided
for herein, or in the event of the levy of any attachment, execution or similar
process upon the rights or interest hereby conferred, the Company may terminate
the Option by notice to the Optionee and it shall thereupon become null and
void.
(b) Notwithstanding
paragraph (a), the Optionee may transfer the Option, by gift or a domestic
relations order, to a family member of the Optionee.
(c) Notwithstanding
paragraphs (a) or (b), the Optionee may transfer the Option with the express,
prior written consent of the Board, which consent may be withheld for any
reason
or for no reason.
13. Representations
By and Covenants of Optionee.
The
following representations, warranties and covenants by Optionee are made as
of
the date of this Stock Option Agreement and, unless stated otherwise herein,
are
also made as of each date of exercise of this Stock Option
Agreement.
(a) If
applicable, the Optionee understands and consents to the placement of a legend
on any certificate or other document evidencing the Shares stating that they
have not been registered under the Securities Act and setting forth or referring
to the restrictions on transferability and sale thereof.
(b) Optionee
hereby represents that the address of Optionee furnished by him on the signature
page of this Stock Option Agreement is accurate and that said address is the
Optionee’s principal residence. Optionee understands that the Company is relying
on the accuracy of this representation for purposes of its compliance with
United States state “blue sky” laws.
(c) This
Stock Option Agreement has been duly executed and delivered by the Optionee
and
constitutes the legal, valid and binding obligation of the Optionee, enforceable
in accordance with its terms.
14. NSO.
It is
intended that this Option shall be a non-qualified stock option and shall not
constitute an incentive stock option for purposes of Section 422 of the Internal
Revenue Code of 1986, as amended.
15. Compliance
with Law; Registration of Shares.
(a) The
Option grant provided hereunder shall be subject to all applicable laws, rules,
and regulations of any applicable jurisdiction or authority or agency thereof
and to such approvals by any regulatory or governmental authority or agency
or
securities exchange which, in the opinion of Company’s counsel, may be required
or appropriate.
(b) Notwithstanding
any other provision of this Stock Option Agreement, the Company shall not be
required to issue or deliver any certificate or certificates for shares of
Common Stock under this Stock Option Agreement prior to fulfillment of all
of
the following conditions:
(i) Effectiveness
of any registration or other qualification of such shares of the Company under
any law or regulation of any applicable jurisdiction, authority or agency that
the Board, in its absolute discretion or upon the advice of counsel, deems
necessary or advisable; and
(ii) Grant
of
any other consent, approval or permit from any applicable jurisdiction or
authority or agency thereof or securities exchange which the Board shall, in
its
absolute discretion or upon the advice of counsel, deem necessary or
advisable.
The
Company shall use all reasonable efforts to obtain any consent, approval or
permit described above.
16. Replacement
of Prior Agreements.
This
Stock Option Agreement replaces and supersedes in its entirety the agreement
that was or should have been delivered to the Optionee as of January 2, 2004,
but does not supersede any agreements between the Optionee and the Company
subsequent to January 2, 2004.
17. Headings.
The
headings of sections and subsections herein are included solely for convenience
of reference and shall not affect the meaning of any of the provisions of this
Stock Option Agreement.
18. Severability.
In the
event that any one or more provisions of this Stock Option Agreement, or any
action taken pursuant to this Stock Option Agreement, should, for any reason,
be
unenforceable or invalid in any respect under the laws of the United States,
any
state of the United States or any other jurisdiction, such unenforceability
or
invalidity shall not affect any other provision of this Stock Option Agreement,
but in such particular jurisdiction and instance this Stock Option Agreement
shall be construed as if such unenforceable or invalid provision had not been
contained therein or if the action in question had not been taken
thereunder.
19. Board
Determinations.
In the
event that any question or controversy shall arise with respect to the nature,
scope or extent of any one or more rights conferred by the Option, or any
provision of this Stock Option Agreement, the good faith determination by the
Board of the rights of the Optionee shall be conclusive, final and binding
upon
the Optionee and upon any other person who shall assert any right pursuant
to
this Option.
20. Governing
Law.
This
Stock Option Agreement and all rights hereunder shall be construed in accordance
with and governed by the internal laws of the State of Delaware.
21. Jurisdiction;
Venue.
Each of
the Company and the Optionee irrevocably (i) agrees that any suit, action
or proceeding arising out of or relating to this Stock Option Agreement may
be
brought in the State or Federal courts located in Jacksonville, Florida;
(ii) consents to the exclusive jurisdiction of each such court in any suit,
action or proceeding relating to or arising out of this Stock Option Agreement;
(iii) waives any objection which it may have to the laying of venue in any
such
suit, action or proceeding in any of such court; and (iv) agrees that
service of any court paper may be made in such manner as may be provided under
applicable laws or court rules governing service of process, including, without
limitation, by the mailing of copies thereof by registered or certified mail,
postage pre-paid, to the other party at its address set forth in Section 8
or on
the signature page hereto, such service to become effective five (5) business
days after such mailing.
22. Amendment.
This
Stock Option Agreement may not be changed or modified except by an instrument
in
writing signed by both of the parties hereto.
23. Counterparts.
This
Stock Option Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN
WITNESS WHEREOF, the Company and the Optionee have executed this Stock Option
Agreement effective as of the Grant Date specified above.
| a21, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |
|
|
||
|
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Executive Chairman
|
||
| OPTIONEE: | ||
| |
|
|
| : | By: | /s/ Xxxxxx X. Xxxxx |
|
|
||
| Xxxxxx X. Xxxxx | ||
| Optionee’s Address: | ||
|
|
||
|
|
||
|
|
||
