Exhibit 10.02
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NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of January 22, 2004 by and between CERISTAR,
INC., a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx (the
"Optionee").
W I T N E S S E T H:
WHEREAS, Optionee, is an officer and director of the Company;
WHEREAS, the Company desires to grant an option to purchase shares of
its common stock, $.001 par value per share (the "Common Stock"), to Optionee;
and
WHEREAS, Optionee and the Company desire to establish the terms and
conditions of such options in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. Subject to and upon the terms and conditions set
forth in this Agreement, the Company hereby grants to Optionee a Non-Qualified
Stock Option (sometimes hereinafter referred to as "Option") to purchase One
Million Five Hundred Thousand (1,500,000) shares (the "Option Shares") during
the specified term of this Option, at a price equal to forty-six cents ($0.46)
per share.
2. Specified Term; Time of Exercise. This Option shall vest in its
entirety and shall be exercisable subject to the provisions of Section 6 hereof.
All rights with respect to any unexercised Option Shares shall expire, and this
option shall become null and void on January 22, 2014.
3. Transferability of Option. This Option shall not be transferable by
the Optionee other than at death of Optionee, and this Option is exercisable
during the Optionee's lifetime only by the Optionee. In the event an Option
Transfer due to death of Optionee, all terms and conditions of the Option
continue in force.
4. Adjustment in the Event of Change in Capital Structure,
Reorganization, Anti-Dilution or Accounting Changes. In the event of a change in
the corporate structure or shares of the Company, subject to any required action
by the shareholders, the Company shall make such equitable adjustments with
respect to dilution or accretion as it may deem appropriate in the number, kind
and in the exercise price of the unexercised Option Shares granted by this
Agreement. For purposes of this section, a change in the corporate structure or
shares of the Company shall include, but is not limited to, changes resulting
from a recapitalization, stock split, reverse split, or stock dividend,
reorganization or liquidation. This Agreement shall not in any way affect the
right of the Company to make changes in its capital structure including, without
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limitation, the issuance of any additional shares of any class of its capital
stock, or to merge or dissolve, liquidate or sell all or any part of its
business or assets. In no event shall Optionee be entitled to any adjustments as
a result of the issuance of any additional shares of any class of the Company's
capital stock where the Company receives consideration.
5. Privilege of Stock Ownership. Optionee shall not be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any Option
Shares unless and until the Option shall have been exercised pursuant to the
terms hereof, the Company shall have issued and delivered the shares to
Optionee, and Optionee's name shall have been entered as a stockholder of record
on the books of the Company. Thereupon, Optionee shall have full voting and
other ownership rights with respect to such shares.
6. Manner of Exercising Option.
a. This Option may be exercised only as to whole shares and only by
written notice signed by Optionee (or in the case of exercise after Optionee's
death or disability, by Optionee's legal representative, executor,
administrator, heir or legatee, as the case may be) and mailed or delivered to
the President or Secretary of the Company at its principal office, which notice
shall: (i) specify the number of Option Shares with respect to which Option is
being exercised; (ii) be accompanied by payment in full in cash; (iii) if the
shares of Common Stock issuable upon exercise of the Option are not then covered
by a current registration statement of the Company under the Securities Act of
1933, as amended (the "Securities Act"), include a statement to the effect that
Optionee, or other person exercising the Option, is purchasing the Option Shares
for investment and not with a view to, or for sale in, any distribution thereof;
and (iv) if the Option is being exercised by a person or persons other than
Optionee, be accompanied by proof satisfactory to the Company and its counsel,
that such person or persons have the right to exercise the Option. Prior to the
issuance of the Option Shares hereunder, Optionee shall: (i) execute and deliver
to the Company such other representations in writing as may be reasonably
requested by the Company in order for it to comply with the applicable
requirements of Federal and State securities laws and (ii) pay to the Company an
amount equal to the federal withholding tax obligation with respect to the
exercised Option Shares, as reasonably determined by the Company.
b. This Option shall be deemed to have been exercised with respect to
the Option Shares specified in said notice at the time of receipt by the Company
of: (i) the notice specified in Section 6(a) hereof; (ii) any representations
reasonably required by the Company pursuant to Section 7(a) hereof; and (iii)
the payments required in Section 6(a) hereof.
c. Unless the shares of Common Stock issuable upon exercise of the
Option are covered by a then current registration statement of the Company under
the Securities Act, the certificates representing the Option Shares issued or to
be issued hereunder shall be stamped or otherwise imprinted with legends
substantially in the following form:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE, AND HAVE BEEN ACQUIRED FOR AN INVESTMENT AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL ACCEPTABLE TO COUNSEL
FOR THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH LAWS.
7. Securities Law Requirements.
a. No Option granted hereunder shall be exercisable, in whole or in
part, and the Company shall not be obligated to sell any Option Shares if such
exercise and sale would, in the opinion of counsel for the Company, violate the
applicable requirements of Federal or State securities laws. Each Option shall
be subject to the further requirement that, if at any time the Company shall
determine in its discretion that the listing or qualification of the Option
Shares under any securities exchange requirements or under any applicable law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the issuance of the Option
Shares, such Option may not be exercised in whole or in part unless such
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Company.
b. If any law or regulation of any State or Federal commission or
agency having jurisdiction shall require the Company or the Optionee to take any
action with respect to the Option Shares, then the date upon which the Company
shall deliver or cause to be delivered the certificate or certificates for the
Option Shares shall be postponed until full compliance shall have been made with
all such requirements.
8. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, except by a writing signed by the party
as to whom enforcement of any such amendment, supplement, waiver or modification
is sought and making specific reference to this Agreement.
9. Assignments. The Optionee may not assign this Agreement.
10. Further Assurances. The parties hereby agree from time to time to
execute and deliver such further and other transfers, assignments and documents
and do all matters and things, which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
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11. Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns.
12. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Delaware without regard to principles of
conflicts of laws.
13. Entire Agreement. This agreement represents the entire
understanding and agreement among the parties with respect to the subject matter
hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CERISTAR, INC.: OPTIONEE:
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxxxxx Xxxxxx
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Its: Chairman Xxxxxxx Xxxxxx
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FORM OF EXERCISE
(to be executed by the registered holder hereof)
The undersigned hereby exercised the right to purchase 1,500,000 shares
of common stock, $.001 per value ("Common Stock"), of CERISTAR, INC. (the
"Company"), evidenced by the within Non-Qualified Stock Option Agreement and
herewith makes payment of the purchase price in full. The undersigned represents
to the Company that the undersigned is purchasing the Common Stock for
investment and not with a view to, or for sale in, any distribution thereof.
Kindly issue certificates for shares of Common Stock in accordance with
the instruction given below:
Dated:
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Optionee
Instructions for registration of stock
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Name (Please Print)
Social Security or other identifying Number:
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Address:
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City
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State and Zip Code
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