EXHIBIT 99.31
EXCEPT AS PERMITTED BY SECTION 8 HEREOF, NO TRANSFER SHALL BE MADE AT
ANY TIME UNLESS THE COMPANY SHALL HAVE BEEN SUPPLIED WITH EVIDENCE
REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT IN VIOLATION OF
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
VITAFORT INTERNATIONAL CORPORATION
______________________
OPTION TO PURCHASE
SHARES OF COMMON STOCK
AS HEREIN DESCRIBED
DATED: AS OF JANUARY 6, 1995
THIS CERTIFIES THAT, FOR VALUE RECEIVED
NAME: Xxxxx Xxxxx
ADDRESS: 0000 Xxxxxx Xxx, Xxxx 000
Xxx Xxxxxxx, XX
00000
or registered assigns (the "Holder") are entitled, subject to the terms set
forth herein and in the Consulting Contract, as amended in January 1996
(incorporated by reference), to purchase from Vitafort International
Corporation (the "Company"), a Delaware corporation, having its offices at
Suite 000, 0000 Xxxxxx xx xxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, up to TWO
HUNDRED TWENTY FIVE Thousand (225,000) shares of the Company's common stock
subject to adjustment as set forth herein.
1. As used herein:
(a) "Common Stock" or "Common Shares" shall initially refer to the Company's
common stock including Underlying Securities, as more fully set forth in
Section 5 hereof.
(b) "Option Price" or "Common Share Price" shall be "EXERCISE PRICE" Cents ($
.15) per share.
(c) "Underlying Securities" or "Underlying Shares" or "Underlying Stock" shall
refer to the Common Shares or other securities or property issuable or
issued upon exercise of this Option.
(d) The options vest based upon mutual agreement based upon assigned projects
and approved time & expenses.
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2. (a) The purchase rights represented by this Option may be exercised by the
Holder hereof, in whole or in part (but not as to less than a whole
Common Share), at any time, and from time to time, during the period
commencing this date, until DECEMBER 31, 1997 (the "Expiration Date"),
by the presentation of this Option, with the purchase form attached duly
executed, at the Company's office (or such office or agency of the
Company as it may designate in writing to the Holder hereof by notice
pursuant to Section 14 hereof), specifying the number of Common Shares as
to which the Option is being exercised, and upon payment by the Holder to
the Company in cash or by certified check or bank draft, in an amount
equal to the Option Price times the number of Common Shares then being
purchased hereunder.
(b) The Company agrees that the Holder hereof shall be deemed the record
owner of such Underlying Securities as of the close of business on the
date on which this Option shall have been presented and payment made for
such Underlying Securities as aforesaid. Certificates for the Underlying
Securities so obtained shall be delivered to the Holder hereof within a
reasonable time, not exceeding seven (7) days, after the rights
represented by this Option shall have been so exercised. If this Option
shall be exercised in part only or transferred in part subject to the
provisions herein, the Company shall, upon surrender of this Option for
cancellation or partial transfer, deliver a new Option evidencing the
rights of the Holder hereof to purchase the balance of the Underlying
Shares which such Holder is entitled to purchase hereunder. Exercise in
full of the rights represented by this Option shall not extinguish the
rights granted under Section 9 hereof.
3. Subject to the provisions of Section 8 hereof, (i) this Option is
exchangeable at the option of the Holder at the aforesaid office of the
Company for other Options of different denominations entitling the Holder
thereof to purchase in the aggregate the same number of Common Shares as are
purchasable hereunder; and (ii) this Option may be divided or combined with
other Options which carry the same rights, in either case, upon presentation
hereof at the aforesaid office of the Company together with a written
notice, signed by the Holder hereof, specifying the names and denominations
in which new Options are to be issued, and the payment of any transfer tax
due in connection therewith.
4. Subject and pursuant to the provisions of this Section 4, the Option Price
and number of Common Shares subject to this Option shall be subject to
adjustment from time to time as set forth hereinafter in this Section 4.
(a) If the Company shall at any time subdivide its outstanding Common Shares
by recapitalization, reclassification, stock dividend, or split-up
thereof or other means, the number of Common Shares subject to this
Option immediately prior to such subdivision shall be proportionately
increased and the Option Price shall be proportionately decreased, and if
the Company shall at any time combine the outstanding Common Shares by
recapitalization, reclassification or combination thereof or other means,
the number of Common Shares subject to this Option immediately prior to
such combination shall be proportionately decreased and the Option Price
shall be proportionately increased. Any such adjustment and adjustment
to the Option Price shall become effective at the close of business on
the record date for such subdivision or combination.
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(b) If the Company after the date hereof shall distribute to all of the
holders of its Common Shares any securities including, but not limited to
Common Shares, or other assets (other than a cash distribution made as a
dividend payable out of earnings or out of any earned surplus legally
available for dividends under the laws of the jurisdiction of
incorporation of the Company), the Board of Directors shall be required
to make such equitable adjustment in the Option Price and the type and/or
number of Underlying Securities in effect immediately prior to the record
date of such distribution as may be necessary to preserve to the Holder
of this Option rights substantially proportionate to and economically
equivalent to those enjoyed hereunder by such Xxxxxx immediately prior to
the happening of such distribution. Any such adjustment made reasonably
and in good faith by the Board of Directors shall be final and binding
upon the Holders and shall become effective as of the record date for
such distribution.
(c) No adjustment in the number of Common Shares subject to this Option or
the Option Price shall be required under this Section 4 unless such
adjustment would require an increase or decrease in such number of shares
of at least 1% of the then adjusted number of Common Shares issuable upon
exercise of the Option, provided, however, that any adjustments which by
reason of the foregoing are not required at the time to be made shall be
carried forward and taken into account and included in determining the
amount of any subsequent adjustment. If the Company shall make a record
of the Holders of its Common Shares for the purpose of entitling them to
receive any dividend or distribution and legally abandon its plan to pay
or deliver such dividend or distribution then no adjustment in the number
of Common Shares subject to the Option shall be required by reason of the
making of such record.
(d) In case of any capital reorganization or reclassification or change of
the outstanding Common Shares (exclusive of a change covered by
Section 4(a) hereof or which solely affects the par value of such Common
Shares) 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, change, capital reorganization or change in the
ownership of the outstanding Common Shares), or in the case of any sale
or conveyance or transfer of all or substantially all of the property of
the Company and in connection with which the Company is dissolved, the
Holder of this Option shall have the right thereafter (until the
expiration of the right of exercise of this Option) to receive upon the
exercise hereof, for the same aggregate Option Price payable hereunder
immediately prior to such event, the kind and amount of shares of stock
or other securities or property receivable upon such reclassification,
change, capital reorganization, merger or consolidation, or upon the
dissolution following any sale or other transfer, by a holder of the
number of Common Shares of the Company equal to the number of common
shares obtainable upon exercise of this Option immediately prior to such
event; and if any reorganization, reclassification, change, merger,
consolidation, sale or transfer also results in a change in Common Shares
covered by Section 4(a), then such adjustment shall be made pursuant to
both this Section 4(d) and Section 4(a). The provisions of this Section
4(d) shall similarly apply to successive reclassification, or capital
reorganizations, mergers or consolidations, changes, sales or other
transfers.
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(e) The Company shall not be required to issue fractional Common Shares upon
any exercise of this Option. As to any final fraction of a Common Share
which the Holder of this Option would otherwise be entitled to purchase
upon such exercise, the Company shall pay a cash adjustment in respect of
such final fraction in an amount equal to the same fraction of the market
value of a share of such stock on the business day preceding the day of
exercise or book value as determined by the Company's independent public
accountants if not publicly traded. The Holder of this Option, by his
acceptance hereof, expressly waives any right to receive any fractional
shares of stock upon exercise of this Option.
(f) As used herein, the current market price ("Market Price") per share at
any date shall be the price of Common Shares on the business day
immediately preceding the event requiring an adjustment hereunder and
shall be (A) if the principal trading market for such securities is an
exchange, the closing price on such exchange on such day provided if
trading of such Common Shares is listed on any consolidated tape, the
price shall be the closing price set forth on such consolidated tape or
(B) if the principal market for such securities is the over-the-counter
market, the high bid price on such date as set forth by NASDAQ or closing
price if listed on NASDAQ NMS or, if the security is not quoted on
NASDAQ, the high bid price as set forth in the NATIONAL QUOTATION BUREAU
sheet listing such securities for such day. Notwithstanding the
foregoing, if there is no reported closing price or high bid price, as
the case may be, on a date prior to the event requiring an adjustment
hereunder, then the current market price shall be determined as of the
latest date prior to such day for which such closing price or high bid
price is available.
(g) Irrespective of any adjustments pursuant to this Section 4 in the Option
Price or in the number, or kind, or class of shares or other securities
or other property obtainable upon exercise of this Option, and without
impairing any such adjustment the certificate representing this Option
may continue to express the Option Price and the number of Common Shares
obtainable upon exercise at the same price and number of Common Shares as
are stated herein.
(h) Until this Option is exercised, the Underlying Shares, and the Option
Price shall be determined exclusively pursuant to the provisions hereof.
(i) Upon any adjustment of this Option the Company shall give written
notice thereof to the Holder which notice shall include the number of
Underlying Securities purchasable and the price per share upon exercise
of this Option and shall set forth in reasonable detail the events which
resulted in such adjustment.
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5. For the purposes of this Option, the terms "Common Shares" or "Common Stock"
shall mean (i) the class of stock designated as the common stock of the
Company on the date set forth on the first page hereof or (ii) any other
class of stock resulting from successive changes or reclassification of such
Common Stock consisting solely of changes from par value to no par value, or
from no par value to par value or changes in par value. If at any time, as
a result of an adjustment made pursuant to Section 4, the securities or
other property obtainable upon exercise of this Option shall include shares
or other securities of another corporation or other property, then
thereafter, the number of such other shares or other securities or property
so obtainable 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 Common Shares contained in Section 4, and all other
provisions of this Option with respect to Common Shares shall apply on like
terms to any such other shares or other securities or property. Subject to
the foregoing, and unless the context requires otherwise, all references
herein to Common Shares shall, in the event of an adjustment pursuant to
Section 4, be deemed to refer also to any other shares or other securities
or property when obtainable as a result of such adjustments.
6. The Company covenants and agrees that:
(a) During the period within which the rights represented by this Option may
be exercised, the Company shall, at all times, reserve and keep
available out of its authorized capital stock, solely for the purposes
of issuance upon exercise of this Option, such number of its Common
Shares as shall be issuable upon the exercise of this Option and at its
expense will obtain the listing thereof on all quotation systems or
national securities exchanges on which the Common Shares are then
listed; and if at any time the number of authorized Common Shares shall
not be sufficient to effect the exercise of this Option, the Company
will take such corporate action as may be necessary to increase its
authorized but unissued Common Shares to such number of shares as shall
be sufficient for such purpose; the Company shall have analogous
obligations with respect to any other securities or property issuable
upon exercise of this Option;
(b) All Common Shares which may be issued upon exercise of the rights
represented by this Option will, upon issuance, be validly issued, fully
paid, non-assessable and free from all taxes, liens and charges with
respect to the issuance thereof; and
(c) All original issue taxes payable in respect of the issuance of Common
Shares upon the exercise of the rights represented by this Option shall
be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the
transfer of any Options.
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7. The Company may issue a call of this Warrant ("Call Notice") at any time
after the Effective Registration Date, but prior to the expiration of this
Warrant, by written notice to Warrant Holder, provided only that the Closing
Price (hereinafter defined) of the Company's Common Stock has theretofore
equalled or exceeded Forty-five Cents ($0.45) per Share for ten (10)
consecutive Trading Days after the Effective Registration Date. This Warrant
shall expire and become null and void thirty (30) days after the issuance
of the Call Notice. The Warrant Holder may exercise this Warrant and
purchase some or all of the Shares then subject to this Warrant within said
thirty (30)-day period, but may not thereafter exercise this Option or
purchase any of the Shares. If the Warrant is not exercised within said
thirty (30) day period, the Company will have the right to redeem any or
all outstanding and unexercised Options at a redemption price of $0.0001
per Warrant. For purposes of this Section 7.3, "Closing Price" means (a)
if the Common Stock is then listed on an established stock exchange or
exchanges, the average bid and ask price per share for each Trading Day on
the principal exchange on which the Common Stock is traded, as reported in
The Wall Street Journal; or (b) if the Common Stock is not then listed on
an exchange, the price per share for the Common Stock in the
over-the-counter market as quoted on NASDAQ (either National Market System
or Small Cap Issues or the OTC Electronic Bulletin Board), for each Trading
Day, as reported in The Wall Street Journal. If the Common Stock is not then
listed on an exchange or quoted on NASDAQ or the OTC Electronic Bulletin
Board, the Common Stock shall be deemed to have a Closing Price of less
Forty-five Cents ($0.45) per share on such Trading Day. For purposes of this
Section 7.3, the term "Trading Day" shall mean a day on which the New York
Stock Exchange is open for trading.
8. Until exercised, this Option shall not entitle the Holder hereof to any
voting rights or other rights as a shareholder of the Company.
9. No transfer of all or a portion of the Option or Underlying Securities
shall be made at any time unless the Company shall have been supplied with
evidence reasonably satisfactory to it that such transfer is not in
violation of the Securities Act of 1933, as amended (the "Act"). Subject to
the satisfaction of the aforesaid condition and upon surrender of this
Option or certificates for any Underlying Securities at the office of the
Company, the Company shall deliver a new Option or Options or new
certificate or certificates for Underlying Securities to and in the name of
the assignee or assignees named therein. Any such certificate may bear a
legend reflecting the restrictions on transfer set forth herein.
10. If this Option is lost, stolen, mutilated or destroyed, the Company shall,
on such terms as to indemnity or otherwise as the Company may reasonably
impose, issue a new Option of like denomination, tenor and date. Any such
new Option shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Option shall be at any time enforceable by anyone.
11. Any Option issued pursuant to the provisions of Section 9 hereof, or upon
transfer, exchange, division or partial exercise of this Option or
combination thereof with another Option or Options, shall set forth each
provision set forth in Sections 1 through 15, inclusive, of this Option as
each such provision is set forth herein, and shall be duly executed on
behalf of the Company by its chief executive officer or chief operating
officer.
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12. Upon surrender of this Option for transfer or exchange or upon the exercise
hereof, this Option shall be cancelled by the Company, and shall not be
reissued by the Company and, except as provided in Section 2 in case of a
partial exercise, Section 3 in case of an exchange or Section 8 in case of a
transfer, or Section 9 in case of mutilation. Any new Option certificate
shall be issued promptly but not later than fifteen (15) days after receipt
of the old Option certificate.
13. This Option shall inure to the benefit of and be binding upon the Holder
hereof, the Company and their respective successors, heirs, executors, legal
representatives and assigns.
14. All notices required hereunder shall be in writing and shall be deemed given
when telegraphed, delivered personally or within two (2) days after mailing
when mailed by certified or registered mail, return receipt requested, to
the party to whom such notice is intended, at the address of such other
party as set forth on the first page hereof, or at such other address of
which the Company or Holder has been advised by the notice hereunder.
15. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
16. The validity, interpretation and performance of this Option and of the
terms and provisions hereof shall be governed by the laws of the State of
California applicable to agreements entered into and performed entirely
in such state.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by its
duly authorized officer as of JANUARY 6, 1996.
VITAFORT INTERNATIONAL CORPORATION
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, Chief Executive Officer
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PURCHASE FORM
TO BE EXECUTED
UPON EXERCISE OF OPTION
The undersigned record holder of the within Option hereby irrevocably elects to
exercise the right to purchase ___________ Common Shares evidenced by the within
Option, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full. The undersigned requests that
certificates for such shares and warrants shall be issued in the name set forth
below.
____________, 19__
___________________________
Signature
___________________________
Print Name of Signatory
___________________________
Name to whom certificates are to be issued if different from above
___________________________
(Street Address)
___________________________
(City, State Zipcode)
___________________________
(Tax Payer I.D. Number)
If said number of shares and warrants shall not be all the shares purchasable
under the within Option, the undersigned requests that a new Option for the
unexercised portion shall be registered in the name of:
___________________________
(Please Print)
___________________________
(Street Address)
___________________________
(City, State Zipcode)
___________________________
(Tax Payer I.D. Number)
___________________________
Signature
___________________________
Print Name of Signatory
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED __________________________, hereby sells, assigns and
transfers to _____________________________,(Social Security or I.D. No._______)
the within Option, or that portion of this Option purchasable for _______
common shares together with all rights, title and interest therein, and does
hereby irrevocably constitute and appoint _____________________________________
attorney to transfer such Option on the register of the within named Company,
with full power of substitution.
___________________________
(Signature)
Dated: ____________, 19__
Signature Guaranteed:
___________________________
(INTENTIONALLY BLANK)
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