EXHIBIT 10.26
NEITHER THIS OPTION NOR THE COMMON STOCK WHICH MAY BE ACQUIRED UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("ACT"), OR APPLICABLE STATE LAW. NEITHER THIS OPTION NOR SUCH COMMON STOCK MAY
BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW.
PURCHASE OPTION
For the Purchase of
499,484 Shares of Common Stock
of
XXXXXXXXXXXXXX.XXX INC.
(A New York Corporation)
1. Purchase Option.
THIS CERTIFIES THAT, for good and valuable consideration, the receipt
of which is hereby acknowledged, Xxxxx X. Xxxxxxx ("Holder"), with an address of
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, is entitled, at any time or from
time to time, commencing on the date hereof and expiring at 5:00 p.m., Eastern
Time, February 1, 2005 ("Expiration Date"), but not thereafter, to purchase and
receive from Xxxxxx Holding Corp. ("Xxxxxx"), in whole or in part up to 499,484
shares of common stock of XxxxxxxXxxxxxx.xxx Inc. ("Company"), $.001 par value
("Common Stock"). The shares of Common Stock are sometimes collectively referred
to herein as the "Option Shares." If the Expiration Date is a day on which
banking institutions are authorized by law to close, then this Purchase Option
may be exercised on the next succeeding day that is not such a day in accordance
with the terms herein. This Purchase Option is initially exercisable at $3.57
per share purchased; provided, however, that upon the occurrence of any of the
events specified in Section 5 hereof, the rights granted by this Purchase
Option, including the exercise price and the number of shares of Common Stock to
be received upon such exercise, shall be adjusted as therein specified. The term
"Exercise Price" shall mean the initial exercise price or the adjusted exercise
price of a share of Common Stock, depending on the context.
2. Exercise.
2.1. Exercise Form. In order to exercise this Purchase Option, the
exercise form attached hereto must be duly executed and completed and delivered
to Xxxxxx, together with this Purchase Option and payment of the Exercise Price
as provided in Section 2.2 for the Option Shares being purchased. If the rights
represented hereby shall not be exercised at or before 5:00 p.m., Eastern time,
on the Expiration Date, this Purchase Option shall become and be void without
further force or effect, and all rights represented hereby shall cease and
expire.
2.2. Payment of Purchase Price.
2.2.1. Cash Payment. The Holder shall make cash payments by
wire transfer, certified or bank check or personal check, in each case payable
to the order of Xxxxxx; Xxxxxx shall not be required to cause the Company to
deliver certificates for Option Shares until Xxxxxx has confirmed the receipt of
good and available funds in payment of the purchase price thereof.
2.2.2. Cashless Payment. At the election of the Holder, the
Holder may use Common Stock of Xxxxxx owned by him to pay the purchase price for
the Option Shares by delivery of stock certificates in negotiable form which are
effective to transfer good and valid title thereto to Xxxxxx, free of any liens
or encumbrances. Shares of Common Stock surrendered for this purpose shall be
valued at the fair market value, which shall be determined as of the date of
exercise as follows: "fair market value" of the Common Stock means, as of the
exercise date: (i) if the Common Stock is listed on a national securities
exchange or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or NASD
OTC Bulletin Board, the last sale price of the Common Stock in the principal
trading market for the Common Stock on the last day trading day preceding such
date, as reported by the exchange or Nasdaq, as the case may be; (ii) if the
Common Stock is not listed on a national securities exchange or quoted on the
Nasdaq National Market, Nasdaq SmallCap Market or NASD OTC Bulletin Board, but
is traded in the residual over-the-counter market, the average bid price of the
Common Stock on the last trading day preceding such date for which such
quotations are reported by the National Quotation Bureau, Incorporated or
similar publisher of such quotations; and (iii) if the fair market value of the
Common Stock cannot be determined pursuant to clause (i) or (ii) above, such
price as Xxxxxx shall determine, in good faith. Xxxxxx shall cause the Company
to issue a certificate or certificates evidencing the Option Shares as soon as
practicable after the exercise form and payment is received. The certificate or
certificates evidencing the Option Shares shall be registered in the name of the
person or persons so exercising the Purchase Option.
2.2.3. Exchange Act Compliance. Notwithstanding the
foregoing, Xxxxxx shall have the right to reject payment in the form of Common
Stock if in the opinion of counsel for Xxxxxx, (i) it could result in an event
of "recapture" under Section 16(b) of the Securities Exchange Act of 1934; or
(ii) such shares of Common Stock may not be sold or transferred to Xxxxxx.
2.3. Legend. Each certificate for Securities purchased under this
Purchase Option shall bear a legend as follows unless such Securities have been
registered under the Securities Act of 1933, as amended ("Act"):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended
("Act"), or applicable state law. The securities may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the Act
or pursuant to an exemption from registration under the Act
and applicable state law."
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3. Transfer. This Purchase Option shall not be transferred except by will
or the laws of descent upon the death of the Holder and unless and until the
Holder has received an opinion of counsel for the Holder, addressed to Xxxxxx,
that this Purchase Option may be transferred pursuant to an exemption from
registration under the Act.
4. New Purchase Options to be Issued.
4.1. Partial Exercise. This Purchase Option may be exercised in whole
or in part. In the event of the exercise in part only, upon surrender of this
Purchase Option to Xxxxxx, together with the duly executed exercise form and
funds sufficient to pay any Exercise Price, Xxxxxx shall cause to be delivered
to the Holder a new Purchase Option of like tenor to this Purchase Option
reflecting the balance of Option Shares purchasable thereunder.
4.2. Partial Transfer. Subject to the restrictions in Section 3
hereof, this Purchase Option may be assigned in whole or in part. In the event
of the assignment hereof in part only, upon surrender of this Purchase Option to
Xxxxxx for cancellation, together with the duly executed assignment form, Xxxxxx
shall cause to be delivered to the Holder new Purchase Options of like tenor to
this Purchase Option in the names of the Holder and the transferee evidencing
the rights of the Holder and the transferee to purchase the aggregate number of
Option Shares purchasable hereunder and reflecting the transfer.
4.3. Lost Certificate. Upon receipt by Xxxxxx of evidence of the
loss, theft, destruction or mutilation of this Purchase Option and reasonably
satisfactory indemnification, Xxxxxx shall execute and deliver a new Purchase
Option of like tenor and date. Any such new Purchase Option executed and
delivered as a result of such loss, theft, mutilation or destruction shall
constitute a substitute contractual obligation on the part of Xxxxxx.
5. Adjustments.
5.1. Adjustments to Exercise Price and Number of Securities. The
Exercise Price and the number of Option Shares shall be subject to adjustment
from time to time as hereinafter set forth:
5.1.1. Stock Dividends, Recapitalization, Reclassification,
Split-Ups. If after the date hereof the number of Option Shares is increased by
a stock dividend payable in shares of Common Stock or by a split-up,
recapitalization or reclassification of shares of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of Common Stock
that may be purchased upon exercise of this Purchase Option shall be increased
in proportion to such increase in the number of Option Shares. For example, if
the Company declares a two-for-one stock dividend and at the time of such
dividend this Purchase Option is for the purchase of 499,484 shares at $3.57 per
share, upon effectiveness of the dividend, this Purchase Option will be adjusted
to allow for the purchase of 998,968 shares at $1.785 per share.
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5.1.2. Aggregation of Shares. If after the date hereof the
number of Option Shares is decreased by a consolidation, combination or
reclassification of shares of Common Stock or other similar event, then, upon
the effective date thereof, the number of shares of Common Stock that may be
purchased upon exercise of the Purchase Option shall be decreased in proportion
to such decrease in the number of Option Shares. For example, if the Company
effects a one-for-two reverse stock split and at the time of such reverse stock
split this Purchase Option is for the purchase of 499,484 shares at $3.57 per
share, upon effectiveness of the reverse stock split, this Purchase Option will
be adjusted to allow for the purchase of 249,742 shares at $7.14 per share.
5.1.3. Adjustments in Exercise Price. Whenever the number of
shares of Common Stock purchasable upon the exercise of this Purchase Option is
adjusted, as provided in this Section 5.1, the Exercise Price shall be adjusted
(to the nearest one-tenth of one cent) by multiplying such Exercise Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise of
this Purchase Option immediately prior to such adjustment, and (y) the
denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter. If the Holder exercises this Purchase Option
after an adjustment which requires an aggregate payment in an amount which is
not evenly divisible by one cent, the aggregate amount to be paid shall be
rounded up to the nearest whole cent. For example, if the Holder exercises a
portion of this Purchase Option, which exercise would give him 10,000 shares of
Common Stock for an aggregate payment of $14,999.993, the Holder shall be
required to pay $15,000.
5.1.4. Replacement of Securities Upon Reorganization, Etc. In
case of any reclassification or reorganization of the outstanding shares of
Common Stock other than a change covered by Section 5.1.1 hereof or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, if and to the extent Xxxxxx, as the holder of the Option Shares
purchasable upon exercise of this Purchase Option, has the right to receive
shares of stock or other securities or property (including cash) upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution
following any such sale or other transfer, the Holder of this Purchase Option
shall have the right thereafter (until the expiration of the right of exercise
of this Purchase Option) to receive from Xxxxxx, upon the exercise hereof, for
the same aggregate Exercise Price payable hereunder immediately prior to such
event, the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such reclassification, reorganization, merger
or consolidation, or upon a dissolution following any such sale or other
transfer, by Xxxxxx with respect to the Option Shares purchasable upon exercise
of this Purchase Option immediately prior to such event; and if any
reclassification also results in a change in shares of Common Stock covered by
Section 5.1.1, then such adjustment shall be made pursuant to Sections 5.1.1,
5.1.3 and this Section 5.1.4. The provisions of this Section 5.1.4 shall
similarly apply to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
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5.1.5. Changes in Form of Purchase Option. This form of
Purchase Option need not be changed because of any change pursuant to this
Section, and Purchase Options issued after such change may state the same
Exercise Price and the same number of shares of Common Stock as are stated in
the Purchase Options initially issued pursuant to this Agreement. The acceptance
by any Holder of the issuance of new Purchase Options reflecting a required or
permissive change shall not be deemed to waive any rights to a prior adjustment
or the computation thereof.
6. Change of Address. As long as this Purchase Option is outstanding, the
Company's books and records shall indicate that the address of the record holder
of the Option Shares is Xxxxxx and all cash, securities or other property that
may be distributed upon the occurrence of an event described in Section 5 shall
be delivered to Xxxxxx at its address. All cash delivered via a written
instrument (e.g., a check) or wire transfer shall be payable to Xxxxxx; provided
however, that the Holder of this Purchase Option shall have the right thereafter
(until the expiration of the right of exercise of this Purchase Option) to
receive from Xxxxxx, upon the exercise hereof, for the same aggregate Exercise
Price payable hereunder immediately prior to an event described in Section 5,
the kind and amount of shares of stock or other securities or property
(including cash) receivable upon the occurrence of such event.
7. Notices. All notices, requests, consents and other communications under
this Purchase Option shall be in writing and shall either be delivered
personally or sent by certified mail, return receipt requested, postage prepaid,
or by Federal Express next business day service with signed receipt required,
and addressed as follows, and shall be deemed duly given hereunder when so
delivered: (i) if to the registered Holder of the Purchase Option, to the
address of such Holder as set forth above or (ii) if to Xxxxxx or the Company,
0000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000, or such other address as a party
may designate by notice to all of the other parties given as provided herein.
8. Miscellaneous.
8.1. Headings. The headings contained herein are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Purchase
Option.
8.2. Entire Agreement. This Purchase Option constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
8.3. Binding Effect. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder, Xxxxxx and the Company, and
their respective successors, legal representatives and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Purchase Option or any
provisions herein contained.
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8.4. Governing Law; Submission to Jurisdiction. This Purchase Option
shall be governed by and construed and enforced in accordance with the laws of
the State of New York, without giving effect to conflict of laws. Xxxxxx and the
Company hereby agree that any action, proceeding or claim against Xxxxxx or the
Company arising out of, or relating in any way to this Purchase Option shall be
brought and enforced in the courts of the State of New York or of the United
States of America for the Southern District of New York, and irrevocably submit
to such jurisdiction, which jurisdiction shall be exclusive. Xxxxxx and the
Company hereby waive any objection to such exclusive jurisdiction and that such
courts represent an inconvenient forum. Any process or summons to be served upon
Xxxxxx or the Company may be served by transmitting a copy thereof by registered
or certified mail, return receipt requested, postage prepaid, addressed to such
party at its address set forth on the signature page hereof. Such mailing shall
be deemed personal service and shall be legal and binding upon Xxxxxx or the
Company, as the case may be, in any action, proceeding or claim. Xxxxxx and the
Company agree that the prevailing party(ies) in any such action shall be
entitled to recover from the other party(ies) all of its reasonable attorneys'
fees and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
8.5. Waiver, Etc. The failure of Xxxxxx, the Holder or the Company to
at any time enforce any of the provisions of this Purchase Option shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
affect the validity of this Purchase Option or any provision hereof or the right
of Xxxxxx, the Holder or the Company to thereafter enforce each and every
provision of this Purchase Option. No waiver of any breach, non-compliance or
non-fulfillment of any of the provisions of this Purchase Option shall be
effective unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought; and no
waiver of any such breach, non-compliance or non-fulfillment shall be construed
or deemed to be a waiver of any other or subsequent breach, non-compliance or
non-fulfillment.
IN WITNESS WHEREOF, Xxxxxx has executed this Purchase Option
as of the 2nd day of February, 2000.
XXXXXX HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Address: 0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
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Form to be used to exercise Purchase Option:
Xxxxxx Holding Corp.
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Date:_________________, 200__
The undersigned hereby elects irrevocably to exercise the
within Purchase Option and to purchase from you ________________ shares of
Common Stock of XxxxxxxXxxxxxx.xxx Inc. As payment for my shares, enclosed is
(check and complete applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to the order
of "Xxxxxx Holding Corp." in the sum of $_________;
|_| confirmation of wire transfer in the amount of $_____________; and/or
|_| certificate for ____ shares of Xxxxxx'x Common Stock, free and clear of
any encumbrances, duly endorsed, having a fair market value (as such
term is defined in Section 2.2.2) of $_________.
Please deliver the Common Stock as to which this Purchase Option is exercised in
accordance with the instructions given below.
___________________________________
Signature
INSTRUCTIONS FOR DELIVERY OF SECURITIES
Name:______________________________________________________________________
(Print in Block Letters)
Address: _______________________________________________________________
_______________________________________________________________
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Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the Holder to effect a transfer of the
within Purchase Option):
FOR VALUE RECEIVED, ________________________________________
does hereby sell, assign and transfer unto ___________________________________
the right to purchase ______________ shares of Common Stock to purchase shares
of Common Stock of XxxxxxxXxxxxxx.xxx Inc. evidenced by the within Purchase
Option.
Dated:___________________, 200__
______________________________________
Signature
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