Exhibit 99.9
CALL OPTION AGREEMENT
THIS AGREEMENT is made as of the 19th day of December, 2002.
B E T W E E N:
WASANDA ENTERPRISES INC.
(the "Optioner")
- and -
XXXXX X'XXXXXX
(the "Optionee")
RECITALS:
WHEREAS the Optioner is the registered and beneficial owner of a warrant
dated as of the date hereof (the "Warrant") entitling the Optioner to purchase
up to 5,000,000 common shares (the "Shares") in the capital stock of D'Angelo
Brands, Inc. (the "Corporation") at any time within five (5) years from and
after the date thereof at the exercise price of six cents (.06) per Share in
lawful currency of the United States of America, all on and subject to the terms
and conditions set out in the Warrant;
AND WHEREAS the Optioner has agreed to grant to the Optionee, who is the
President of, and a director of, the Corporation, an option to purchase the
Warrant from the Optioner or the Shares issued to the Optioner upon the exercise
of the Warrant in whole or in part (the "Option"), all upon and subject to the
terms and conditions set forth in this agreement;
NOW THEREFORE, the parties agree as follows:
1. Call Option - The Optioner hereby grants to the Optionee the irrevocable
Option, exercisable as set out below in Section 2, to purchase from the
Optioner, and to require the Optioner to sell the Warrant or the Shares issued
to the Optioner upon the exercise of the Warrant in whole or in part, in
accordance with this Agreement. The Option is exercisable by the Optionee at any
time and from time to time within seven (7) days after the date on which the
Optioner exercises its right pursuant to the Warrant to acquire Shares, PROVIDED
that the Optionee is then an executive officer and/or director of the
Corporation. The Option shall only be exercisable in respect of the number of
Shares for which the Optioner has exercised its right to acquire Shares. The
within Option, if not exercised within the said time period, shall expire and be
of no further force or effect in respect of the Shares for which the Warrant was
exercised. In the event that the Warrant is exercised in part, the within Option
shall remain in full force and effect, on the terms set out herein, in respect
of that number of Shares for which the Optioner has not exercised its rights
pursuant to the Warrant. This Option may only be exercised by the Optionee for
the whole of the Shares for which the Optioner has exercised its right to
acquire shares pursuant to the Warrant, and may not be exercised in part.
2. Manner of Exercise of Call Option - The Option may be exercised by the
Optionee giving written notice to the Optioner (the "Call Notice") that the
Option is being exercised, which Call Notice may be given at any time during the
said seven (7) day period. In the event that Shares issued as a result of the
exercise of the Warrant are issued to the Optioner prior to the expiry of the
seven (7) day period, such Shares shall be transferred, assigned and conveyed to
the Optionee in satisfaction of the Optioner's obligations hereunder, subject
only to receipt of payment for same upon the terms set out herein. In the event
that the Corporation has not issued the Shares to the Optioner at the time that
the Optionee exercises the within Option, the Optioner shall direct the
Corporation to issue the Shares resulting from the exercise of the Warrant to
the Optionee directly, subject only to receipt of payment for same upon the
terms set out herein.
3. Action by the Parties - In the event the Optionee exercises the Option:
(a) Purchase Price - Upon the exercise of the within Option and compliance
by the Optionee with the terms hereof, the Optioner shall sell to the
Optionee and the Optionee shall purchase from the Optioner the Shares
issued to the Optioner from time to time pursuant to the Warrant for
an aggregate purchase price calculated in lawful currency of the
United States of America equal to the "Market Price" (as that term is
defined in the Warrant) multiplied by the number of Shares in respect
of which the Optioner exercised the Warrant. The amount, so
determined, shall be the "Purchase Price". The Purchase Price shall be
payable in lawful currency of the United States of America by
certified cheque or bank draft concurrently with the giving of the
Notice, failing which the exercise of the Option in respect of such
Shares shall be null, void and of no force or effect.
(b) Delivery of Certificates, etc. - Subject to payment of the Purchase
Price in the manner and at the time specified in Section 3(a) hereof,
the Optioner shall transfer and deliver to the Optionee, and the
Optionee shall accept from the Optioner either a direction to the
Corporation as provided for in Section 2 hereof or certificates
representing the Shares duly endorsed in blank for transfer or
accompanied by irrevocable security transfer powers of attorney duly
executed in blank.
4. Place of Delivery and Payment - Delivery of the direction or the share
certificates as required by Section 3(b) hereof shall take place at 10:00 a.m.
at the office of the Optioner on the third (3rd) clear business day after
receipt by the Optioner of the Purchase Price.
5. No Disposition or Agreement to Dispose of Option Shares - The Optioner
represents and warrants that it is the legal and beneficial owner of the Warrant
with good and valid title thereto free and clear of any liens, pledges,
encumbrances, security interests, charges, adverse claims, covenants or
obligations of any kind or nature whatsoever and that it has full capacity,
right and authority to enter into this Option and to perform and satisfy its
obligations hereunder. The Optioner covenants that it shall not either directly
or indirectly dispose of, alienate, charge, pledge or encumber the Warrant or
enter into any agreement which does or could have the effect of limiting or
restricting the rights of the Optionee hereunder to acquire the Warrant or the
Shares, to the extent and at the time or times provided for herein. The Optioner
further covenants that the foregoing representations and warranties will be
accurate and complete in all respects at the time of delivery of the share
certificates or direction pursuant to section 3(b) hereof.
6. Subdivision, Consolidation or Reclassification - In the event of any
amendment to the Warrant or the Optioner's rights and entitlements thereunder
resulting from a "Material Change" (as that term is defined in the Warrant), the
Optioner shall deliver, at the time of any exercise thereafter of the Option
hereby granted, such number of Shares or the entitlement thereto as would result
from the Material Change if such exercise of the Option hereby granted had been
prior to the date of such Material Change.
The Optioner shall take all steps and do all things necessary within its
control to ensure compliance with the provisions of this section, including
delivery and surrender of the certificate or certificates representing the
Warrant or the Shares to permit the issuance of any replacement certificates
necessary to give effect to any Material Change as specified herein.
7. Notices - Any notice or other writing required or permitted to be given under
this Agreement or for the purposes of this Agreement (referred to in this
section as a "Notice") shall be sufficiently given if delivered or transmitted
by facsimile or other form of recorded communication tested prior to
transmission to such party:
(a) in the case of a notice to the Optioner
to: Wasanda Enterprises Inc.
000 Xxxxxx Xxxxx
Xxxxxx XX X0X 0X0
Attention: Xxxxxxx Xxxxxxxx
Fax No.: 000-000-0000
(b) in the case of a notice to the Optionee
to: Xxxxx X'Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx XX X0X 0X0
Fax No.: 905-
or at such other address as the party to whom such Notice is to be given shall
have last notified the party giving same, in the manner provided in this
Section. Any Notice delivered to the party to whom it is addressed as provided
in this Section shall be deemed to have been given and received on the day it is
so delivered at such address, provided that it is delivered during normal
business hours and further provided if such day is not a business day then the
Notice shall be deemed to have been given and received on the business day next
following such day. Any Notice transmitted by facsimile or other form of
recorded communication shall be deemed given and received on the first (1st)
business day after its transmission.
8. Governing Law - This Agreement shall be interpreted, enforced and governed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as an Ontario contract.
The parties expressly attorn to the jurisdiction of the courts of the Province
of Ontario.
9. Representations of Optionee - The Optionee acknowledges, represents and
warrants to the Optioner as follows:
(a) The Optionee understand that the sale and transfer of the Warrant or
Shares to him by Optioner is intended to be exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act"),
based, in part, upon the representations, warranties and agreements of
the Optionee contained herein;
(b) The Optionee is an accredited investor within the meaning of Rule
501(a) under the Securities Act and the Warrant or Shares to be
acquired by him from the Optioner are being acquired for his own
account and not with a view toward, or for sale in connection with,
any distribution thereof except in compliance with applicable United
States federal and state securities law;
(c) The Optionee has such knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and
risks of his investment in the Warrant or Shares and is capable of
bearing the economic risks of such investment; and the Optionee has
previously invested in securities similar to the Warrant or Shares;
(d) The Optionee may have to bear the economic risk of the investment
indefinitely because none of the Warrant or Shares may be sold,
hypothecated or otherwise disposed of unless subsequently registered
under the Act and applicable state securities laws or an exemption
from registration is available. Legends may be placed on the Warrant
or Shares to this effect and with reference to applicable state
securities laws, to which legends the Optionee agrees, and appropriate
notations thereof may be made in the Company's stock books. The
Optionee will not sell or transfer the shares until they are
registered for resale under the Securities Act or unless an exemption
from registration under the Securities Act is available;
(e) The Optionee has adequate means of providing for his current needs and
foreseeable personal contingencies and has no need for the investment
in the Warrant or Shares to be liquid;
(f) The Optionee is aware that an investment in the Warrant or Shares
involves a number of very significant risks and is able to bear the
loss of his entire investment.
10. Time of Essence - Time shall be of the essence of this Agreement and every
part thereof.
11. Amendments - No supplement, modification, amendment, waiver or termination
of this Agreement shall be binding upon the parties hereto unless agreed to by
such parties in writing.
12. Headings - The division of this Agreement into articles, sections and
paragraphs and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of this Agreement.
13. Entire Agreement - This Agreement constitutes the entire understanding and
agreement between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, negotiations, discussions or understandings
with respect to the subject matter hereof.
14. Further Assurances - Each of the Optioner and the Optionee hereby covenants
and agrees that it shall, at any time or times and from time to time, upon the
request of the other and with reasonable diligence, do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, assignments, transfers, conveyances, assurances and proxies
as may be required or desirable to better carry out and perform the intent and
terms of this Agreement.
15. Enurement - This Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties have hereunto duly executed this Agreement.
SIGNED SEALED AND DELIVERED )
)
in the presence of: ) /s/ Xxxxx X'Xxxxxx
) ------------------
) Xxxxx X'Xxxxxx
--------------------------- )
WASANDA ENTERPRISES INC.
Per: /s/ Xxxxxxx Xxxxxxxx
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c/s
