EXHIBIT 3.12
OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement"), dated as of July 3,
2000 is made by and between POWERSOURCE CORPORATION, a Nevada corporation (the
"Company") and E. Xxxxxxx Xxxxxxxx, an individual (the "Optionholder").
RECITALS
WHEREAS, the Company is engaged in the business of supplying
electrical power to residents through the state of California and various
business activities related to the development of its business model;
WHEREAS, the Optionholder has provided good and valuable
business consulting services to the Company.
WHEREAS, in exchange for the Optionholder services, the
Company has agreed to issue to the Optionholder an Option as hereinafter
described (the "Option") to purchase an aggregate of up to Five Hundred
eighty-one thousand twenty-six (581,026) (subject to adjustment pursuant to
Section 9 hereof) shares (the "Shares") of common stock, $0.001 par value (the
"Common Stock"), of the Company.
NOW, THEREFORE, in consideration of the foregoing and for the
purpose of defining the terms and provisions of the Option and the respective
rights and obligations thereunder, the Company and the Optionholder, for value
received, hereby agree as follows:
Section 1. GRANT OF OPTION. The Company hereby grants to the
Optionholder an option to purchase up to an aggregate of 581.026 Shares
according to the provisions set forth herein.
Section 2. TRANSFERABILITY AND FORM OF OPTION.
2.1 REGISTRATION. The Option shall be numbered and shall be
registered on the books of the Company when issued.
2.2 TRANSFER. The Option shall be transferable only on the
books of the Company maintained at its principal executive offices in Los
Angeles, California or wherever its principal executive offices may then be
located upon delivery thereof duly endorsed by the Optionholder or by its duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer. Upon any registration of
transfer, the Company shall execute and deliver a new Option to the person
entitled thereto.
2.3 LIMITATIONS ON TRANSFER OF THE OPTION. Subject to the
provisions of Section 12 hereof, the Option shall not be sold, transferred,
assigned or hypothecated by the Optionholder. Unless the context indicates
otherwise, the term "Optionholder" shall include any transferee or transferees
or designee or designees of the Optionholder pursuant to this subsection 2.3,
and the term "Option" shall include any and all options outstanding pursuant to
this Agreement, including those evidenced by a certificate or certificates
issued upon division, exchange, substitution or transfer pursuant to this
Agreement.
2.4 FORM OF OPTION. The text of the Option and of the form of
election to purchase Shares shall be substantially as set forth in Exhibit A
attached hereto. The Option shall be executed on behalf of the Company by its
President or other authorized officer, under its corporate seal reproduced
thereon, and attested by its Secretary or an Assistant Secretary.
An Option bearing the signature of an individual who was at
the time of execution hereof the proper officer of the Company shall bind the
Company, notwithstanding that such individual shall have ceased to hold such
office prior to the delivery of such Option.
The Option shall be dated as of the date of signature thereof
by the Company either upon initial issuance or upon division, exchange,
substitution or transfer.
2.5 INVESTMENT REPRESENTATION OF THE OPTIONHOLDER. The
Optionholder represents and warrants to, and agrees with, the Company that the
Optionholder is acquiring the Option and the Shares issued upon exercise of the
Option for its own account, for investment, and not with a view to the sale or
distribution of any part thereof, and that the Optionholder does not have any
present intention of distributing or selling the same.
2.6 LEGEND ON OPTION SHARES. Each certificate for Shares
initially issued upon exercise of this Option shall bear a legend substantially
in accordance with the following:
"The securities represented by this Certificate have not been registered under
the Securities Act of 1933, as amended, and may not be sold, exchanged,
hypothecated or transferred in any manner except in compliance with Section 12
of the Option Agreement pursuant to which they were issued."
Any certificate issued at any time in exchange or substitution
for any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act of 1933, as amended (the "Act") of the securities represented
thereby) shall also bear the above legend unless, in the opinion of counsel to
the Company, the securities represented thereby need no longer be subject to
such restrictions.
2.7 DEMAND REGISTRATION RIGHTS; NOTICE OF DEMAND. If the
Company receives a written notice from the Optionholders, upon exercise of the
options, demanding that the Company register such Optionholders' Shares issued
upon exercise, then the Company shall give written notice of such demand to all
Optionholders and will use its commercial best efforts to include in a
registration statement all Shares requested to be so included by all
Optionholders upon written notice to the Company at anytime within the Company's
current fiscal quarter in which the written notice of such demand was given.
2.8 REGISTRATION. Promptly after receipt of a demand for
registration as set forth in Section 2.7 of this Agreement, the Company shall
prepare and file with the SEC a registration statement, on a quarterly basis, on
the applicable form deemed most appropriate by the Company, for all Shares for
which registration is demanded, and the Company shall use its commercial best
efforts to cause such registration statement to become effective as soon as
practicable.
2.9 DEFERRAL OF REGISTRATION. If the Optionholders demand a
registration hereunder, the Company may defer filing such registration statement
with the SEC for up to thirty (30) days after the effective date of a
registration statement that the Company had filed with the SEC or had been
declared effective prior to the demand by the Optionholders if market conditions
do not warrant the sale of shares under registration at the time of the
effective date.
Section 3. EXCHANGE OF OPTION CERTIFICATE. Any Option certificate may
be exchanged for another certificate or certificates, in amounts of no less than
1,000 Shares each, entitling the Optionholder to purchase a like aggregate
number of Shares as the certificate or certificates surrendered then entitled
such Optionholder to purchase. To exchange an Option certificate, the
Optionholder shall make such request in writing delivered to the Company, and
shall surrender, properly endorsed, the certificate evidencing the Option to be
so exchanged. Thereupon, the Company shall execute and deliver to the person
entitled thereto a new Option certificate as so requested.
Section 4. TERM OF OPTION; EXERCISE OF OPTION. Subject to the terms of
this Agreement, the Optionholder shall have the right, at any time until 5:00
p.m., Pacific Standard Time, on July 3, 2010 (the "Termination Date"),
regardless of whether the Optionholder is employed by the Company, to purchase
from the Company up to the number of fully paid and nonassessable Shares which
the Optionholder may at the time be entitled to purchase pursuant to this
Agreement, upon surrender to the Company, at its principal executive offices of
the certificate evidencing the Option to be exercised, together with the
purchase form on the reverse thereof duly filled in and signed, and upon payment
to the Company of the Option Price (as defined and determined in accordance with
the provisions of Sections 8 and 9 hereof), for the number of Shares in respect
of which such Option is then exercised, but in no event for less than 1,000
Shares unless less than 1,000 Shares remain issuable upon exercise of the
Option. Payment of the aggregate Option Price shall be made in cash or by bank
certified check.
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Upon such surrender of the Option and payment of such Option
Price as aforesaid, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Optionholder and in such
name or names as the Optionholder may designate a certificate or certificates
for the number of full Shares so purchased upon the exercise of the Option,
together with cash, as provided in Section 10 hereof, in respect of any
fractional Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
Shares as of the date of the surrender of the Option and payment of the Option
Price, as aforesaid, notwithstanding that the certificates representing such
Shares shall not actually have been delivered or that the stock transfer books
of the Company shall then be closed. The Option shall be exercisable, at the
election of the Optionholder, either in full or from time to time in part and,
in the event that a certificate evidencing the Option is exercised in respect of
less than all of the Shares specified therein at any time prior to the
Termination Date, a new certificate evidencing the remaining Option will be
issued by the Company.
Section 5. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of the Shares, provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any secondary transfer of the Option or the Shares.
Section 6. MUTILATED OR MISSING OPTION. In case the certificate or
certificates evidencing the Option shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Optionholder, issue and
deliver in exchange and substitution for and upon cancellation of the mutilated
certificate or certificates, or in lieu of and substitution for the certificate
or certificates lost, stolen or destroyed, a new Option certificate or
certificates of like tenor and representing an equivalent right or interest, but
only upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction of such Option and of bond of indemnity, if requested, also
satisfactory in form and amount at the applicant's cost. Applicants for such
substitute Option certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
Section 7. RESERVATION OF SHARES. There has been reserved, and the
Company shall at all times keep reserved so long as the Option remains
outstanding, out of its authorized Common Stock, such number of shares of Common
Stock as shall be subject to purchase under the Option. The Company will keep a
copy of this Agreement on file with every transfer agent for the Common Stock
and other securities of the Company issuable upon the exercise of the Option.
The Company will supply such transfer agent, if any, with duly executed shares
and other certificates for such purpose and will provide or otherwise make
available any cash which may be payable as provided in Section 10 hereof.
Section 8. OPTION PRICE. The price per share (the "Option Price") at
which the Shares shall be purchasable upon the exercise of the Option shall be
$0.001 subject to further adjustment pursuant to Section 9 hereof.
Section 9. ADJUSTMENT OF OPTION PRICE AND NUMBER OF SHARES. The number
and kind of securities purchasable upon the exercise of the Option and the
Option Price shall be subject to adjustment from time to time upon the happening
of certain events, as follows:
9.1 ADJUSTMENTS. The number of Shares purchasable upon
exercise of the Option and the Option Price shall be subject to adjustment as
follows:
(a) In case the Company shall (i) subdivide its
outstanding Common Stock, (ii) combine its outstanding Common Stock into a
smaller number of shares of Common Stock or (iii) issue by reclassification of
its Common Stock other securities of the Company, the number of Shares
purchasable upon exercise of the Option immediately prior thereto shall be
adjusted so that the Optionholder shall be entitled to receive the kind and
number of Shares or other securities of the Company which it would have owned or
would have been entitled to receive after the happening of such event or any
record date with respect thereto. Any adjustment made pursuant to this
subsection 9.1(a) shall become effective immediately after the effective date of
such event retroactive to the record date, if any, for such event.
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(b) Whenever the number of Shares purchasable upon
the exercise of the Option is adjusted as provided in (a) above, the Option
Price payable upon exercise of the Option shall be adjusted by multiplying such
Option Price immediately prior to such adjustment by a fraction, of which the
numerator shall be the number of Shares purchasable upon the exercise of the
Option immediately prior to such adjustment, and of which the denominator shall
be the number of Shares so purchasable immediately thereafter.
(c) Whenever the number of Shares purchasable upon
the exercise of the Option or the Option Price is adjusted as herein provided,
the Company shall cause to be promptly mailed to the Optionholder by first class
mail, postage prepaid, notice of such adjustment or adjustments and a
certificate of the Company setting forth the number of Shares purchasable upon
the exercise of the Option and the Option Price after such adjustment, a brief
statement of the facts requiring such adjustment and the computation by which
such adjustment was made.
(d) For the purpose of this Section 8, the term
"Common Stock" shall mean (i) the class of stock designated as the Common Stock
of the Company at the date of this Agreement and (ii) any other class of stock
resulting from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par value, or
from no par value to par value. In the event that at any time, as a result of an
adjustment made pursuant to this Section 9, the Optionholder shall become
entitled to purchase any shares of the Company other than Common Stock,
thereafter the number of such other shares so purchasable upon exercise of the
Option and the Option Price of such shares shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Shares contained in this Section 9.
9.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in
subsection 9.1 hereof, no adjustment in respect of any dividends shall be made
during the term of the Option or upon the exercise of the Option.
9.3 PRESERVATION OF PURCHASE RIGHTS UPON RECLASSIFICATION,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the Optionholder
an agreement that the Optionholder shall have the right thereafter upon payment
of the Option Price in effect immediately prior to such action to purchase upon
exercise of the Option the kind and amount of shares and other securities and
property which the Optionholder would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had the Option been exercised immediately prior to such action. In the event of
a merger described in Section 368(a)(2)(E) of the Internal Revenue Code of 1986,
as amended, in which the Company is the surviving corporation, the right to
purchase Shares under the Option shall terminate on the date of such merger and
thereupon the Option shall become null and void but only if the controlling
corporation shall agree to substitute for the Option its option which entitles
the holder thereof to purchase upon its exercise the kind and amount of shares
and other securities and property which the Optionholder would have owned or had
been entitled to receive had the Option been exercised immediately prior to such
merger.
The agreements referred to in this subsection 9.3 shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The provisions of
this subsection 9.3 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
9.4 STATEMENT OF OPTION. Where any adjustment which by reason
of Section 9.1(c) hereof is not required to be made immediately shall be carried
forward and taken into account in any subsequent adjustment and the Option
certificate or certificates theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in the Option
initially issuable pursuant to this Agreement.
Section 10. FRACTIONAL INTERESTS. The Company shall not be required to
issue fractional Shares on the exercise of the Option. If any fraction of a
Share would, except for the provisions of this Section 10, be issuable on the
exercise of the Option (or specified portion thereof), the Company shall pay an
amount in cash equal to the then current market price multiplied by such
fraction.
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Section 11. NO RIGHTS AS SHAREHOLDER; NOTICES TO OPTIONHOLDER. Nothing
contained in this Agreement or in any of the certificates representing the
Option shall be construed as conferring upon the Optionholder or its transferees
any rights as a shareholder of the Company, including the right to vote, receive
dividends, consent or receive notices as a shareholder in respect to any meeting
of shareholders for the election of directors of the Company or any other
matter. If, however, at any time prior to the expiration of the Option and prior
to its exercise, any of the following events shall occur:
(a) any action which would require an adjustment
pursuant to Section 9.1 or 9.3; or
(b) a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of its
property, assets and business as an entirety or substantially as an entirety)
shall be proposed; then in any one or more of said events, the Company shall
give notice in writing of such event to the Optionholder as provided in Section
13 hereof at least 20 days prior to the date fixed as a record date or the date
of closing the transfer books for the determination of the shareholders entitled
to any relevant rights in connection with such action or for the determination
of shareholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be.
Section 12. RESTRICTIONS ON TRANSFER. The Optionholder agrees that
prior to making any disposition of the Option or the Shares, the Optionholder
shall give written notice to the Company describing briefly the manner in which
any such proposed disposition is to be made; and no such disposition shall be
made if the Company has notified the Optionholder that in the opinion of counsel
satisfactory to the Optionholder (which may be Company counsel) a registration
statement or other notification or post-effective amendment thereto (hereinafter
collectively a "Registration Statement") under the Act of is required with
respect to such disposition and no such Registration Statement has been filed by
the Company with, and declared effective, if necessary, by the Securities and
Exchange Commission. Furthermore, the Optionholder acknowledges that the Shares
are restricted securities, as that term is defined in the Act and, as such, any
resale of the Shares as permitted by this Section 12 may only be made pursuant
to a Registration Statement under the Act or an exemption from registration
under the Act, including Rule 144 promulgated under the Act.
Section 13. NOTICES. Any notice pursuant to this Agreement by the
Company or by the Optionholder shall be in writing and shall be deemed to have
been duly given if delivered, including by telecopy, or mailed by certified
mail, return receipt requested:
(a) If to the Optionholder:
E. Xxxxxxx Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
(b) If to the Company:
POWERSOURCE CORPORATION
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
or to such other address as either party shall designate by written notice,
similarly given, to the other party. Any notice if given or made by certified or
registered first class mail letter, return receipt requested, shall be deemed to
have been received on the earlier of the date actually received or the date
three (3) days after the same was posted (and in proving such it shall be
sufficient to prove that the envelope containing the same was properly addressed
and posted as aforesaid) and if given or made by telecopy transmission shall be
deemed to have been received at the time of dispatch, unless such date of deemed
receipt is not a business day on which banks are open in Los Angeles,
California, in which case the date of deemed receipt shall be the next
succeeding business day on which banks are open in Los Angeles, California.
Section 14. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Optionholder shall bind
and inure to the benefit of their respective successors and assigns hereunder.
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Section 15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All statements
contained in any schedule, exhibit, certificate or other instrument delivered by
or on behalf of the parties hereto, or in connection with the transactions
contemplated by this Agreement, shall be deemed to be representations and
warranties hereunder. Notwithstanding any investigations made by or on behalf of
the parties to this Agreement, all representations, warranties and agreements
made by the parties to this Agreement or pursuant hereto shall survive, except
that, if a party hereto has or, with the exercise of due care would have, actual
knowledge at the date hereof of facts which would constitute a breach of the
representations and warranties contained herein, such breaches shall be deemed
waived by such party if such party consummates the transactions contemplated by
this agreement.
Section 16. APPLICABLE LAW. This Agreement shall be deemed to be a
contract made under the laws of the State of California and for all purposes
shall be construed in accordance with the internal laws of said State.
Section 17. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company and the
Optionholder any legal or equitable right, remedy or claim under this Agreement,
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Optionholder.
Section 18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but when taken
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed, all as of the date and year first above written.
FOR: POWERSOURCE CORPORATION
By: /s/ Xxxxx Xxxx
-----------------------------------
Xxxxx Xxxx, Chief Executive Officer
FOR: OPTIONHOLDER
By: /s/ E. Xxxxxxx Xxxxxxxx
-----------------------------------
E. Xxxxxxx Xxxxxxxx
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EXHIBIT A
OPTION TO PURCHASE 581,026 SHARES
OF COMMON STOCK OF
POWERSOURCE CORPORATION
--------------------------------
INCORPORATED UNDER THE LAWS OF THE STATE OF NEVADA
This certifies that, for value received, E. Xxxxxxx Xxxxxxxx,
the registered holder hereof or assigns (the "Optionholder") is entitled to
purchase from POWERSOURCE CORPORATION, (the "Company"), at any time subject to
the terms of the Option Agreement referred to below until 5:00 p.m., Los Angeles
time on July 3, 2010, at the purchase price per share as set forth in that
certain Option Agreement, dated as of July 3, 2000 (the "Option Price"), the
number of shares of Common Stock $0.001 par value, of the Company set forth
above (the "Shares"). The number of Shares purchasable upon exercise of this
Option and the Option Price per share shall be subject to adjustment from time
to time as set forth in the Option Agreement referred to below.
This Option shall be subject to the following:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, and may not be
sold, exchanged, hypothecated or transferred in any manner except in
compliance with Section 12 of the Option Agreement pursuant to which
they were issued."
This Option may be exercised in whole or in part by
presentation of this Option with the Purchase Form on the reverse side hereof
duly executed and simultaneous payment of the Option Price (subject to
adjustment) at the principal office of the Company, Los Angeles, California.
Payment of such price shall be made at the option of the Optionholder in cash or
by bank check.
This Option evidences the right to purchase an aggregate of up
to 581,026 Shares and is issued under and in accordance with the Option
Agreement dated, as of July 3, 2000 (the "Option Agreement") between the Company
and the Optionholder and is subject to the terms and provisions contained in the
Option Agreement, to all of which the Optionholder by acceptance hereof
consents.
Upon any partial exercise of this Option, there shall be
signed and issued to the Optionholder a new Option in respect of the Shares as
to which this Option shall not have been exercised. This Option may be exchanged
at the office of the Company by surrender of this Option properly endorsed for
one or more new Options of the same aggregate number of Shares as are evidenced
by the Option or Options exchanged. No fractional shares will be issued upon the
exercise of rights to purchase hereunder, but the Company shall pay the cash
value of any fraction upon the exercise of one or more Options. This Option is
transferable at the office of the Company in the manner and subject to the
limitations set forth in the Option Agreement.
This Option does not entitle any Optionholder to any of the
rights of a shareholder of the Company.
PowerSource Corporation
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, Chief Executive Officer
Attest: /s/ Xxxxx Xxxxxx
-----------------------------
Xxxxx Xxxxxx, Secretary
Dated: July 3, 2000
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PURCHASE FORM
------------------------
------------------------
------------------------
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Option for, and to purchase
thereunder, _____ shares of Common Stock (the "Shares") provided for therein,
and requests that certificates for the Shares be issued in the name of: (Please
Print Name, Address and Social Security Number) _____________
______________________________________________________________________________
_____________________________________________________________ and, if said
number of Shares shall not be all the Shares purchasable hereunder, that a new
Option certificate for the balance of the Shares purchasable under the within
Option certificate be registered in the name of the undersigned Optionholder or
his Assignee as below indicated and delivered to the address stated below:
Dated:____________________, 20__
Name of Optionholder:
(Please Print)
Address:_____________________________________________________
Signature:___________________________________________________
Signature Guaranteed:
Note: The above signature must correspond with the name as written upon the face
of this Option certificate in every particular, without alteration or
enlargement or any change whatever, unless this Option has been assigned.
