Exhibit 10.4
OPTION AGREEMENT dated as of March 1, 2006 between, Energy Venture,
Inc., a Delaware corporation (the "Company"), and ___________ ("__________") and
his assignees or designees (each hereinafter sometimes referred to as a
"Holder").
RECTIALS
A. The Company has agreed to issue Options to [ ] (the "Options") to
purchase XXXXXXX shares of the Company's common stock (the "Shares") on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant. The Company hereby grants to the ___________ Options to
purchase the Shares at an initial exercise price of $0.___ per share (the
"Exercise Price"). The Options shall be exercisable at any time from the date
hereof until 5:30 p.m., New York time, March 1, 2011. The number of shares
subject to the Options granted hereunder and the Exercise Price shall be subject
to adjustment as provided in Section 8 hereof.
2. Exercise of Options.
2.1 Method of Exercise. The Options initially are exercisable at the
Exercise Price (subject to adjustment as provided below). Upon surrender of the
original copy of this Agreement with the annexed Form of Election to Purchase
duly executed, together with payment of the Exercise Price for the number of the
Shares to be purchased, to the Company c/o Eaton & Xxx Xxxxxx, acting as Option
Agent, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the Holder shall be entitled to
receive a certificate or certificates for the Shares so purchased. The purchase
rights granted hereby are exercisable at the option of the Holder, in whole or
in part (but not as to fractional shares of common stock underlying the Options
and not as to less then 25,000 shares at any one time or, if less, the number of
Options represented hereby). In the case of the purchase of less than all of the
Shares purchasable hereunder, the Company shall execute and deliver a new Option
Agreement of like tenor for the balance of the shares purchasable hereunder.
2.2 Exercise by Surrender of Options. In addition to the method of
payment set forth in Section 2.1 and in lieu of any cash payment required
thereunder, the Holder(s) of the Options shall have the right at any time and
from time to time to exercise the Options in full or in part by surrendering
this Agreement in the manner specified in Section 2.1 in exchange for the number
of the Shares equal to the product of (x) the number of the Shares as to which
the Options are being exercised, multiplied by (y) a fraction, the numerator of
which is the Market Price (as hereinafter defined) of the Shares minus the
Exercise Price of the Shares and the denominator of which is the Market Price
per Share. As used in this Agreement, the phrase "Market Price" at any date
shall be deemed to be the last reported sale price, or, in case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last three (3) trading days, in either case as officially reported by the
principal securities exchange on which the Shares are listed or admitted to
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Exhibit 10.4
trading, or, if the Shares are not listed or admitted to trading on any
exchange, the average closing sale price as furnished by the NASD through The
NASDAQ Stock Market, Inc. ("NASDAQ") or similar organization if NASDAQ is no
longer reporting such information, or if the Shares are not quoted on NASDAQ, as
determined in good faith by resolution of the Board of Directors of the Company,
based on the best information available to it. Solely for the purposes of this
Section, Market Price shall be calculated either (i) on the date on which the
form of election attached hereto is deemed to have been sent to the Option Agent
pursuant to Section 13 hereof ("Notice Date") or (ii) as the average of the
Market Price for each of the five trading days immediately preceding the Notice
Date, whichever of (i) or (ii) results in a greater Market Price.
3. Issuance of Certificates. Upon the exercise of any Options, the
issuance of certificates for the Shares, properties or rights underlying such
Options shall be made forthwith (and in any event within five (5) business days
thereafter) without charge to the Holder including, without limitation, any tax,
other than income taxes, which may be payable in respect of the issuance
thereof, and such certificates shall be issued in the name of, or in such names
as may be directed by, the Holder; provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Holder and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
The certificates representing the Shares or other securities,
property or rights issued upon exercise of any Options shall be executed on
behalf of the Company by the manual or facsimile signature of the then present
President or any Vice President of the Company reproduced thereon, attested to
by the manual or facsimile signature of the then present Secretary or any
Assistant Secretary of the Company.
4. Transfer of Options. Subject to all applicable securities laws,
the Options shall be transferable only on the books of the Company maintained at
the office of the Option Agent, upon delivery of this Agreement or a suitable
instrument of transfer duly endorsed by the Holder or by its duly authorized
attorney or representative accompanied by proper evidence of succession,
assignment or authority to transfer. Upon any registration transfer, the Company
shall execute and deliver a new copy of this Agreement to the person entitled
thereto.
5. Exercise Price and Number of Securities. Except as otherwise
provided in Section 8 hereof, each Option is exercisable to purchase one Share
at an initial exercise price equal to the Exercise Price. The Exercise Price and
the number of the Shares for which each Option may be exercised shall be the
price and the number of the Shares which shall result from time to time from any
and all adjustments in accordance with the provisions of Section 8 hereof.
6. Registration Rights.
6.1 Registration Under the Securities Act of 1933. The Holder by his
acceptance hereof, covenants and agrees that the Options are being acquired as
an investment and not with a view to the distribution thereof. Each certificate
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Exhibit 10.4
representing the Shares and any of the other securities issuable upon exercise
of an Option (collectively, the "Option Shares") shall bear the following legend
unless (i) the Options or Option Shares are distributed to the public or sold to
the underwriters for distribution to the public pursuant to a registration
statement filed under the Securities Act of 1933, as amended (the "Act"), or
(ii) the Company has received an opinion of counsel, in form and substance
reasonably satisfactory to counsel for the Company, that such legend is
unnecessary for any such certificate:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH
ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES), OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT IS AVAILABLE.
6.2 Piggyback Registration. If, at any time commencing after the
date hereof and expiring five (5) years thereafter, the Company proposes to
register any of its securities under the Act (other than in connection with an
initial public offering of shares of the Company or in connection with a merger
or pursuant to Form S-4 or Form S-8 or successor form thereto) it will give
written notice by registered mail, at least thirty (30) days prior to the filing
of each such registration statement, to the Holders of its intention to do so.
If any of the Holders notify the Company within twenty (20) days after mailing
of any such notice of its or their desire to include any such securities in such
proposed registration statement, the Company shall afford such Holders the
opportunity to have any such Option Shares registered under such registration
statement. In the event that such registration relates to an underwritten public
offering and the managing underwriter for said offering advises the Company in
writing that in its opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering without
causing a diminution in the offering price or otherwise adversely affecting the
offering, the Company will include in such registration (a) first, the
securities the Company proposes to sell, (b) second, the securities held by the
entities that made the demand for registration, and (c) third, the Option Shares
or other securities requested to be included in such registration which in the
opinion of such underwriter can be sold, pro rata among the Holders and other
owners on the basis of the number of Option Shares or other securities requested
to be registered by such Holders and other owners.
Notwithstanding the provisions of this Section, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement or to withdraw the same after the filing but prior to the
effective date thereof.
6.3. Covenants of the Company With Respect to Registration. In
connection with any registration under Section 6.2, the Company covenants and
agrees as follows:
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Exhibit 10.4
(a) The Company shall pay all costs (excluding fees and
expenses of Holder(s)' counsel and any underwriting or selling commissions),
fees and expenses in connection with all registration statements filed pursuant
to Section 6.2 including, without limitation, the Company's legal and accounting
fees, printing expenses, blue sky fees and expenses.
(b) The Company will take all necessary action which may be
required in qualifying or registering the Option Shares included in a
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably are requested by the Holder(s), provided that
the Company shall not be obligated to execute or file any general consent to
service of process or to qualify as a foreign corporation to do business under
the laws of any such jurisdiction.
(c) The Company shall indemnify the Holder(s) of the Option
Shares to be sold pursuant to any registration statement and each person, if
any, who controls such Holders within the meaning of Section 15 of the Act or
Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), against all loss, claim, damage, expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending against
any claim whatsoever) to which any of them may become subject under the Act, the
Exchange Act or otherwise, arising from such registration statement.
(d) Nothing contained in this Agreement shall be construed as
requiring the Holder(s) to exercise the Options prior to the initial filing of
any registration statement or the effectiveness thereof.
(e) The Company shall furnish to each Holder participating in
the offering and to each underwriter, if any, a signed counterpart, addressed to
such Holder or underwriters, of (i) an opinion of counsel to the Company, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), and (ii) a "cold comfort" letter
dated the effective date of such registration statement (and, if such
registration relates to an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement) signed by the independent
public accountants who have issued a report on the Company's financial
statements included in such registration statement, in each case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) and, in the case of such accountants' letter,
with respect to events subsequent to the date of such financial statements, as
are customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities.
(f) The Company shall as soon as practicable after the
effective date of any registration statement filed pursuant to this Section 6,
and in any event within 15 months thereafter, make "generally available to its
security holders" (within the meaning of Rule 158 under the Act) an earnings
statement (which need not be audited) complying with Section 11(a) of the Act
and covering a period of at least 12 consecutive months beginning after the
effective date of the registration statement.
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Exhibit 10.4
(g) The Company's obligations under this Section shall
terminate on the fifth anniversary of the date hereof or, in respect of any
Holder, when the Option Shares and other Shares held by such Holder represent
less than 1% of the shares of such class then issued and outstanding.
7. Obligations of Holders. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 6 hereof that
each of the selling Holders shall:
(a) Furnish to the Company such information regarding
themselves, the Option Shares held by them, the intended method of sale or other
disposition of such securities, the identity of and compensation to be paid to
any underwriters proposed to be employed in connection with such sale or other
disposition, and such other information as may reasonably be required to effect
the registration of their Option Shares.
(b) Notify the Company, at any time when a prospectus relating
to the Option Shares covered by a registration statement is required to be
delivered under the Act, of the happening of any event with respect to such
selling Holder as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
(c) The Holder(s) of the securities to be sold pursuant to a
registration statement, and their successors and assigns, shall severally, and
not jointly, indemnify the Company, its officers and directors and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or
liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become
subject under the Act, the Exchange Act or otherwise, arising from information
furnished by or on behalf of such Holders, or their successors or assigns, for
specific inclusion in such registration statement; provided, however, that the
indemnity of such Holder(s) shall be limited to the net proceeds received by
such Holder(s) in the sale of securities pursuant to the respective registration
statement to the same extent and with the same effect as the provisions
contained in Section 6 of the Placement Agent Agreement pursuant to which the
Placement Agent has agreed to indemnify the Company.
8. Adjustments to Exercise Price and Number of Securities. The
Exercise Price in effect at any time and the number and kind of securities
purchased upon the exercise of any Option shall be subject to adjustment from
time to time only upon the happening of the following events:
(a) Stock Dividend, Subdivision and Combination. In case the
Company shall (i) declare a dividend or make a distribution on its outstanding
Shares in Shares, (ii) subdivide or reclassify its outstanding Shares into a
greater number of shares, or (iii) combine or reclassify its outstanding Shares
into a smaller number of shares, the Exercise Price in effect at the time of the
record date for such dividend or distribution or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that it shall
equal the price determined by multiplying the Exercise Price by a fraction, the
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Exhibit 10.4
denominator of which shall be the number of Shares outstanding after giving
effect to such action, and the numerator of which shall be the number of Shares
outstanding immediately prior to such action. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) Adjustment in Number of Securities. Upon each adjustment
of the Exercise Price pursuant to the provisions of this Section, the number of
Option Shares issuable upon the exercise at the adjusted Exercise Price of each
Option shall be adjusted to the nearest number of whole Shares by multiplying a
number equal to the Exercise Price in effect immediately prior to such
adjustment by the number of Option Shares issuable upon exercise of the Options
immediately prior to such adjustment and dividing the product so obtained by the
adjusted Exercise Price.
(c) Definition of Shares. For the purpose of this Section, the
term "Shares" shall mean (i) the Shares, or (ii) any other class of securities
resulting from successive changes or reclassifications of such Shares.
(d) Merger or Consolidation. In case of any consolidation of the
Company with, or merger of the Company into, another entity (other than a
consolidation or merger which does not result in any reclassification or change
of the outstanding Shares), the entity formed by such consolidation or merger
shall execute and deliver to the Holder a supplemental Option agreement
providing that the Holder of each Option then outstanding or to be outstanding
shall have the right thereafter (until the expiration of such Option) to
receive, upon exercise of such Option, the kind and amount of shares of and
other securities and property receivable upon such consolidation or merger by a
holder of the number of Shares for which such Option might have been exercised
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental Option agreement shall provide for adjustments that shall be
identical to the adjustments provided in Section 8. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
(e) No Adjustment of Exercise Price in Certain Cases. No adjustment
of the Exercise Price shall be made if the amount of said adjustment shall be
less than two cents ($.02) per share; provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least two cents ($.02) per share.
9. Exchange and Replacement of Agreements. This Agreement is
exchangeable, without expense, upon the surrender hereof by the registered
Holder to the Company c/o the Option Agent for a new Option Agreement of like
tenor and date representing in the aggregate the right to purchase the same
number of Option Shares in such denominations as shall be designated by the
Holder thereof at the time of such surrender. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of any Option Agreement, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to it and reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of the Agreement, if mutilated, the Company will make and deliver a
new Option Agreement of like tenor, in lieu thereof.
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Exhibit 10.4
10. Elimination of Fractional Interests. The Company shall not be
required to issue certificates representing fractions of shares upon the
exercise of any Option, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of shares or other securities, properties or rights.
11. Reservation and Listing of Securities. The Company shall at all
times reserve and keep available out of its authorized shares, solely for the
purpose of issuance upon the exercise of the Options, such number of Shares or
other securities, properties or rights as shall be issuable upon the exercise
thereof. Every transfer agent ("Transfer Agent") for the Shares and other
securities of the Company issuable upon the exercise of the Options will be
irrevocably authorized and directed at all times to reserve such number of
authorized shares of Shares and other securities as shall be requisite for such
purpose. The Company will keep a copy of this Agreement on file with every
Transfer Agent for the Shares and other securities of the Company issuable upon
the exercise of the Options. The Company will supply every such Transfer Agent
with duly executed stock and other certificates, as appropriate, for such
purpose. The Company covenants and agrees that, upon exercise of the Options and
payment of the Exercise Price therefor, all Shares and other securities issuable
upon such exercise shall be duly and validly issued, fully paid, non-assessable
and not subject to the preemptive rights of any stockholder. As long as any
Options shall be outstanding, the Company shall use its best efforts to cause
all Shares issuable upon the exercise of the Options to be listed (subject to
official notice of issuance) on all securities exchanges on which the Shares
issued to the public in connection herewith may then be listed and/or quoted on
The NASDAQ Stock Market.
12. No Rights as a Stockholder; Notices to Holders in Certain
Circumstances. Nothing contained in this Agreement shall be construed as
conferring upon the Holders the right to vote or to consent or to receive notice
as a stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder of the Company. If, however, at any time prior to the expiration of
the Options and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its securities
for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or
distribution payable otherwise than out of current or retained
earnings, as indicated by the accounting treatment of such dividend
or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its securities any
additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the
Company, or any option, right or warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of the Company (other
than in connection with a consolidation or merger) or a sale of all
or substantially all of its property, assets and business as an
entirety shall be proposed;
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Exhibit 10.4
then in any one or more of said events, the Company shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, winding up or sale.
13. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly made and sent when delivered, or mailed by registered or certified mail,
return receipt requested:
(a) if to the registered Holder(s) of the Options, to the addresses
of such Holder as shown on the books of the Company; or
(b) if to the Company, at c/o Eaton & Xxx Xxxxxx LLP, 0 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxxxx X. XxXxxx, Esq.; or
(c) if to the Option Agent, at 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: Xxxxxxx X. XxXxxx, Esq.
14. Supplements; Amendments; Entire Agreement. This Agreement
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought. The Company may from time to time supplement or amend this
Agreement without the approval of any holders of Options in order to cure any
ambiguity, to correct or supplement any provision contained herein which may be
defective or inconsistent with any provisions herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
may deem necessary or desirable and which the Company deems shall not adversely
affect the interests of the Holders.
15. Successors. All of the covenants and provisions of this
Agreement shall be binding upon and inure to the benefit of the Company, the
Holders and their respective successors and assigns hereunder.
16. Survival of Representations and Options. All statements in any
schedule, exhibit or 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.
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Exhibit 10.4
17. Governing Law. This Agreement shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
construed in accordance with the laws of said State without giving effect to the
rules of said State governing the conflicts of laws.
18. Severability. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
19. Captions. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
20. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
registered Holder(s) of the Options and the Option Shares any legal or equitable
right, remedy or claim under this Agreement. This Agreement shall be for the
sole and exclusive benefit of the Company and any Holder(s) of the Options or
Option Shares.
21. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
ENERGY VENTURE, INC.
By:
---------------------------
Name:
Title:
-------------------------------
9
Exhibit 10.4
FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 2.1
The undersigned hereby irrevocably elects to exercise the right,
represented by the Option Agreement dated ____________, to purchase ______
Shares and herewith tenders in payment for such securities a check payable in
New York Clearing House Funds to the order of Energy Venture, Inc. (the
"Company") in the amount of $________, all in accordance with the terms of
Section 2.1 of the Option Agreement. The undersigned requests that a certificate
for such securities be registered in the name of __________________, whose
address is __________________________________________ and that such certificate
be delivered to ____________________ , whose address is
__________________________________________ , and if said number of shares shall
not be all the shares purchasable under the Option Agreement, that a new Option
Agreement for the balance of the Options exercisable under the Option Agreement
be registered in the name of the undersigned Option holder or his assignee as
below indicated and delivered to the address stated below.
Dated:
Signature:
---------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Option Agreement)
Address:
------------------------------------
------------------------------------
--------------------------------------------
(Insert Social Security or Other Identifying
Number of Holder)
10
Exhibit 10.4
FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 2.2
The undersigned hereby irrevocably elects to exercise the right,
represented by the Option Agreement dated ___________, to purchase __________
Shares all in accordance with the terms of Section 2.2 of the Option Agreement.
The undersigned requests that certificates for such securities be registered in
the name of _______________________ whose address is
_______________________________ and that such certificates be delivered to
__________________________ whose address is
______________________________________.
Dated:
Signature:
---------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Option Agreement)
Address:
------------------------------------
------------------------------------
--------------------------------------------
(Insert Social Security or Other Identifying
Number of Holder)
11
