EXHIBIT 10.9
EQUIFIN, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
(THE "OPTION AGREEMENT")
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (OR ANY SECURITIES FOR
WHICH SUCH SECURITIES ARE EXERCISABLE) HAVE BEEN ACQUIRED BY THE HOLDER
SOLELY FOR HIS OWN ACCOUNT FOR THE PURPOSE OF INVESTMENT AND NOT WITH A
VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION OF ANY SUCH
SECURITIES. THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR STATE SECURITIES LAWS AND MAY NOT
BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER THE
ACT OR AN EXEMPTION THEREFROM.
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, ENCUMBRANCE, OR OTHER DISPOSITION
OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE (OR ANY SECURITIES FOR
WHICH SUCH SECURITIES ARE EXERCISABLE), OR ANY INTEREST IN SUCH
SECURITIES, IS RESTRICTED BY THE TERMS AND CONDITIONS OF THIS STOCK OPTION
AGREEMENT.
EQUIFIN, INC., a Delaware corporation (the "Company"), has granted,
effective October 24, 2001, to Xxxxx Xxxxx, having a mailing address at 00
XxxxxxXxxx Xxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Optionee"), an option to
purchase a total 200,000 shares (the "Shares") of the Company's common stock,
par value $.01 per share, ("Common Stock"), at $.40 per share (the "Option").
1. NATURE OF THE OPTION. This Option is not intended to qualify as an Incentive
Stock Option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. EXERCISE PRICE. The exercise price is $.40 per Share.
3. EXERCISE OF OPTION. Subject to the terms and conditions contained herein,
this Option shall be exercisable in whole or in part during its term (the
conditions to accelerated exercisability contained in the original grant having
been satisfied); provided, however, that this Option may not be exercised for a
fraction of a share. This Option shall be exercisable (in whole or in part) by
written notice attached hereto as Exhibit "A" which shall state the election to
exercise the Option, the number of Shares in respect of which the Option is
being exercised, and shall be delivered with such other representations and
agreements as to the holder's investment intent with respect to such shares of
Common Stock as may be required by the Company hereunder or as may be further
amended by written notice to Optionee in compliance with law or the requirements
of the exchange(s) upon which the stock is listed. Such written notice shall be
signed by the Optionee and shall be delivered in person
or by certified mail to the Secretary of the Company. The written notice shall
be accompanied by payment of the exercise price.
No Shares will be issued pursuant to the exercise of an Option
unless such issuance and such exercise shall comply with all relevant provisions
of law and the requirements of any stock exchange upon which the Shares may then
be listed.
4. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable pursuant to
the exercise of this Option have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), at the time this Option is exercised,
Optionee shall, concurrently with the exercise of all or any portion of this
Option, deliver to the Company his Investment Representation Statement in the
form attached hereto as Exhibit "B". As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by cash or
certified check.
6. PROHIBITED ACTIONS. Optionee acknowledges the Shares underlying this Option
are not registered pursuant to the Securities Act of 1933, as amended, and
therefore are subject to certain limitations imposed by state and federal law
and as definitively set forth above. Optionee is subject to such restrictions
concerning the Option and the Shares.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any required
action by the stockholders of the Company, the number of shares of Common Stock
covered by the Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split or the payment of a stock dividend with respect to the Common Stock or any
other increase or decrease in the number of issued shares of Common Stock
effected without receipt or payment of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board of Directors of the Company (the "Board"),
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to the Option.
In the event of the proposed dissolution or liquidation of the Company, or
in the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Board may, in the exercise of its sole discretion in such instances, declare
that this Option shall terminate as of a date fixed by the Board and give the
Optionee the right to exercise the Option as to all or any part of the Shares.
8. TERMINATION OF STATUS AS AN EMPLOYEE, CONSULTANT OR DIRECTOR. Except as
otherwise expressesly provided herein, if Optionee ceases to be an employee,
consultant of director of the Company or any of its subsidiaries, he may,
exercise the Option to the extent that
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he was entitled to exercise it at the date of such termination, but only within
ninety (90) days after the later of (i) the date he ceased to be a consultant or
director of the Company or any of its subsidiaries, or (ii) the date the Company
or any of its subsidiaries is no longer required to make payments to Optionee
pursuant to any employment agreement, including, without limitation, severance
payments or payments not to compete that the Company or any of its subsidiaries
may be required to pay to Optionee in connection with the termination of his
employment.
9. DEATH OF OPTIONEE. Subject to Section 11, in the event of the death of an
Optionee during the term of this Option and while an employee, consultant or
director of the Company or any of its subsidiaries and having been in continuous
status (no break in employment, consultant or director relationship with the
Company or any of its subsidiaries or one of its wholly-owned subsidiaries)
("Continuous Status") as an employee, director or consultant since the date of
grant of the Option, the Option may be exercised, at any time within one (1)
year following the date of death, by Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent of the right to exercise the Option that had vested on or prior to
the date of death.
10. RESERVATION OF SHARES. The Company, during the term of the Option, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of this Option. The inability of the
Company to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
11. TRANSFERABILITY OF OPTION. The Option may not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner except by will or by the
laws of descent or distribution. The terms of this Option Agreement shall be
binding upon the executors, administrators, heirs, successors and assigns and
transferees of the Optionee.
12. STAMP TAX. The Company will pay any documentary stamp taxes attributable to
the sale of the Shares upon the exercise of the Options; provided, however, that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the delivery of any certificates for
Shares in a name other than that of the Optionee (or its designee) in respect of
which such Shares are issued.
13. LOST, STOLEN OR MUTILATED CERTIFICATES. In case this Option Agreement shall
be mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for, and upon cancellation of, the mutilated Option
Agreement, or in lieu of and substitution for the Option Agreement, lost, stolen
or destroyed, a new Option Agreement of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and an indemnity,
if requested, also reasonably satisfactory to it.
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14. TERM OF OPTION. This Option may not be exercised after June 30, 2006, and
may be exercised during such term only in accordance with the terms and
conditions contained herein.
15. MODIFICATIONS. Neither this Option Agreement nor any portion or provision
hereof may be changed, waived or amended orally or in any manner other than by
an agreement in writing signed by the Optionee and the Company.
16. RIGHTS OF HOLDER. No Optionee shall be deemed to be the holder of Common
Stock or any other securities of the Company that may at any time be deliverable
on the exercise hereof for any purpose nor shall anything contained herein be
construed to confer upon the Optionee any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof or to give or withhold consent
to any corporate action (whether upon any reorganization, issuance of stock,
reclassification or conversion of stock, change of par value, consolidation,
merger, conveyance, or otherwise) or to receive notice of meetings or to receive
dividends or subscription rights or otherwise until an Option shall have been
exercised and the Common Stock purchasable upon the exercise thereof shall have
become issuable.
17. NOTICES. Except as otherwise provided in this Option Agreement, all notices,
requests, demands and other communications required or permitted hereunder or by
law shall be in writing and shall be deemed to have been duly given, made and
received only when delivered against receipt or when deposited in the United
States mails, certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
The Company: EquiFin, Inc.
0000 Xxxxxxx 00
Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Holder: At the address given on the
face of this Option Agreement
18. SEVERABILITY. If any provision of this Option Agreement is prohibited by or
is unlawful or unenforceable under any applicable law of any jurisdiction, such
provision shall, as to such jurisdiction be in effect to the extent of such
prohibition without invalidating the remaining provisions hereof; provided,
however, that any such prohibition in any jurisdiction shall not invalidate such
provision in any other jurisdiction; and provided, further that where the
provisions of any such applicable law may be waived, that they hereby are waived
by the Company and the Optionee to the full extent permitted by law and to the
end that this Option Agreement shall be deemed to be a valid and binding
agreement in accordance with its terms.
19. NO OBLIGATIONS TO EXERCISE OPTION. The granting of the Option shall impose
no obligations upon the Optionee to exercise such Option.
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20. GOVERNING LAW. The parties hereby agree that this Option Agreement shall be
governed, construed and enforced in accordance with the substantive law of the
State of New Jersey (regardless of any provisions of the law of conflicts, if
any, requiring other applicable law).
IN WITNESS WHEREOF, the parties have executed this Agreement as of
December __, 2001 with respect to an Option Grant on October 24, 2001.
EQUIFIN, INC..
a Delaware Corporation
By:
-----------------------------------
Name:
Title:
OPTIONEE
--------------------------------------
Xxxxx Xxxxx
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EXHIBIT A
FORM OF ELECTION TO EXERCISE
[To be executed only upon exercise of Option]
To [_____________________]:
The undersigned holder of the within Option hereby irrevocably exercises
such Option for, and purchases thereunder, ______ shares of Common Stock, par
value $.01 per share, of EquinFin, Inc. and herewith makes payment of the
purchase price therefor in the form of cash or a certified check in the amount
of U.S. $____________ and requests that the certificates for such shares be
issued in the name of, and delivered to ________________________________, whose
address is _______________________________.
Dated: _____________________________________________________
(Signature must conform in all respects to name of
holder as specified on face of Option.)
_____________________________________________________
(Xxxxxx Xxxxxxx)
_____________________________________________________
(City) (State) (Zip Code)
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EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:_______________________
COMPANY: EQUIFIN, INC.
SECURITY: COMMON STOCK
DATE:
In connection with the purchase of the above-listed Securities, I, the
Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial condition,
and have acquired sufficient information about the Company to reach an informed
and knowledgeable decision to acquire the securities. I am purchasing these
securities for my own account for investment purposes only and not with a view
to, or for the resale in connection with, any "distribution" thereof for
purposes of the Securities Act of 1933 ("Securities Act").
(b) I understand that the Securities have not been registered under the
Securities Act in reliance upon a specific exemption therefrom, which exemption
depends upon, among other things, the bona fide nature of my investment intent
as expressed herein.
(c) I further understand that the Securities must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from registration is otherwise available. In addition, I understand that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) I am familiar with the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
the availability of certain public information about the Company; (2) the resale
occurring not less than one year after the party has purchased, and made full
payment within the meaning of Rule 144, for the securities to be sold; and, in
the case of an affiliate, or of a non-affiliate who has held the securities not
less than two years, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934) and
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the amount of securities being sold during any three-month period not exceeding
the specified limitations stated in Rule 144, if applicable.
(e) I further understand that at the time I wish to sell the Securities
there may be no public market upon which to make such a sale, and that, even if
such a public market then exists, the Company may not be satisfying the current
public information requirements of Rule 144, and that, in such event, I would be
precluded from selling the Securities under Rule 144 even if the one-year
minimum holding period is satisfied.
(f) I further understand that in the event all of the applicable
requirements of Rule 144 are not satisfied, registration under the Securities
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
(g) I understand that the certificate evidencing the Securities will be
imprinted with a legend noting the above restrictions on sale.
Date: ____________
Signature of Purchaser:
________________________________
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