THIS OPTION AND THE SHARES ISSUABLE UPON EXERCISE OF THIS OPTION HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY STATE BLUE SKY
LAWS. THIS OPTION AND THE SHARES ISSUABLE UPON EXERCISE OF THIS OPTION MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED IN ANY MANNER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT COVERING SUCH TRANSFER, OR EXCEPT UPON RECEIPT BY ORION
FINANCIAL, LTD. OF AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH SALE OR
TRANSFER IS NOT IN VIOLATION OF THE ACT OR ANY APPLICABLE SECURITIES LAWS.
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is effective as of the 16th day of
September, 1996, by and between Orion Financial, Ltd. ("Orion") and Xxxxxxx X.
Xxxxx ("Recipient").
1. Grant of Option. Orion hereby grants to Recipient an option to purchase
400,000 shares of Common Stock of Orion at a price of $.03 per share.
2. Exercise. Recipient may exercise the option in whole at any time or in
part from time to time by giving written notice of exercise together with
payment of the option price. The option shall expire on September 16, 2001.
3. Dilution or Other Agreement.
a. In the event that additional shares of Common Stock are issued
pursuant to a stock split, a stock dividend or similar event, the number of
shares of Common Stock then covered by each outstanding option granted
hereunder shall be increased proportionately with no increase in the total
purchase price of the shares then so covered.
b. In the event that the shares of Common Stock of the Company from
time to time issued and outstanding are reduced by a combination of shares,
the number of shares of Common Stock then covered by each outstanding
option granted hereunder shall be reduced proportionately with no reduction
in the total price of the shares then so covered.
c. In the event that the Company should transfer assets to another
corporation and distribute the stock of such other corporation without the
surrender of Common Stock of the Company, then the total purchase price of
the shares covered by each outstanding option shall be reduced by an amount
which bears the same ratio to the total purchase price then in effect as
the market value of the stock distributed in respect of a share of the
Common Stock of the Company, immediately following the distribution, bears
to the aggregate of the market value at such time of a share of the Common
Stock of the Company and the stock distributed in respect thereof.
d. In the event of a merger of the Company into another corporation,
then any options shall be exercisable into the number of shares and any
other consideration which the option holder would have received if he had
owned the shares subject to the option on the effective date of the merger.
All such adjustments shall be made by the Board, whose determination upon
the same shall be final and binding upon the optionees. No fractional shares
shall be issued, and any fractional shares resulting from the computations
pursuant to this Section shall be eliminated from the respective option. No
adjustment shall be made for cash dividends or the issuance to stockholders of
rights to subscribe for additional Common Stock or other securities.
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4. Listing and Registration of Shares. Each option shall be subject to the
requirement that if at any time the Board shall determine, in its discretion,
that the listing, registration or qualification of the shares covered thereby
upon any securities exchange or under any state or federal law or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the granting of such option or the issue or
purchase of shares thereunder, such option may not be exercised in whole or in
part unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board.
5. Representations and Warranties.
a. Recipient hereby makes the following covenants, representations and
warrants to Orion:
i) The shares of Common Stock to be acquired hereunder will be
acquired for his own account, are for investment, and without view to
the distribution of any portion thereof.
ii) That he is aware that no federal or state agency has made any
finding or determination as to the fairness of this investment, nor
any recommendation nor endorsement with respect to this investment.
iii) That he understands that he must bear the economic risk of
this investment for an indefinite period of time because the
securities have not been registered under the Securities Act of 1933
or any state securities laws and, therefore, cannot be sold unless
registered under such Act or such laws or an exemption from such
registration is available.
b. It shall be a condition to the transfer of the Common Stock to be
acquired hereunder that Recipient and any transferee take all steps which
in the opinion of Orion are necessary to ensure compliance with all state
and federal securities laws.
c. Recipient agrees that the certificates representing the Common
Stock to be acquired hereunder shall contain the legend set forth below and
that appropriate instructions shall be given to any transfer agent of such
stock to insure compliance with such legend:
The shares represented by this certificate have not
been registered under the Securities Act of 1933 (the "Act")
or any state blue sky laws. The shares represented by this
certificate may not be sold or otherwise transferred in any
manner except pursuant to an effective registration
statement covering such transfer, or except upon receipt by
Orion Financial, Ltd. of an opinion of counsel satisfactory
to it that such sale or transfer is not in violation of the
Act or any applicable securities laws.
d. Recipient agrees that this Option and the shares issuable upon
exercise hereof shall be transferable only in accordance with, in the case
of this Option, the legend hereon and in the case of the shares, the legend
set forth in Section c above.
6. Attorney Fees. In the event of litigation to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to payment
of all its costs and attorneys' fees incurred in connection therewith.
7. Notices. All notices required or authorized by this Agreement shall be
in writing and shall refer to this Agreement. All notices shall be effective
upon delivery if delivered in person or upon mailing if mailed first-class mail,
postage prepaid, as follows:
3
If to Orion: Orion Financial, Ltd.
c/o Xxxx X. Xxxxxxxx
Orion Financial, Ltd.
00 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
If to Recipient: Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Either party may change its address for receipt by notice given as indicated
herein.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
9. Severability. It is the desire and intent of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision or portion of
this Agreement shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed amended to delete herefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of this paragraph in the particular jurisdiction in
which such adjudication is made.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute but one and the same instrument.
11. Entire Agreement. This instrument sets forth the entire agreement and
understanding among the parties and supersedes all prior agreements,
arrangements and understandings related to the subject matter hereof. No
provision of this Agreement shall be altered, amended or revoked except by an
instrument in writing signed by the parties hereto.
12. Successors and Assigns. Except as herein set forth, this Agreement
shall extend to and be binding upon the successors, assigns, heirs and legal
representatives of the parties hereto. No party hereto shall have further rights
under this Agreement when he ceases to own any shares of Orion. If Recipient,
prior to his death, elects or becomes obligated to purchase shares hereunder,
the estate of Recipient shall purchase such shares and comply with all the
provisions hereof.
13. Miscellaneous. Words used herein, regardless of the number or gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires. As used herein "person" shall mean any natural person,
corporation, partnership, trust, state or other entity.
DATED as of October 13, 1996.
ORION FINANCIAL, LTD.,
a Colorado corporation
By:
----------------------------
Xxxx X. Xxxxxxxx, President
RECIPIENT:
--------------------------------
XXXXXXX X. XXXXX
