EXHIBIT 10.2
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION THEREFROM
IS AVAILABLE.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement"), is made effective as of
December 14, 2001, between Xxx X. Xxxxxxxxx, an individual ("Optionor"), and NET
INTEGRATED SYSTEMS LTD., a Bermuda corporation ("Optionee"). Optionor and/or
Optionee are sometimes herein referred to individually as a "party" and
collectively as the "parties."
R E C I T A L S
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WHEREAS, this Agreement is entered into in connection with a loan
("Loan") from Optionee to Accesspoint Corporation, a Nevada corporation ("APC"),
evidenced by that certain Revolving Line of Credit Secured Promissory Note of
even date (the "Note");
WHEREAS, Optionee and APC have concurrently herewith entered into a
Secured Loan Agreement for the extension of credit to APC ("Secured Loan
Agreement");
WHEREAS, Pledgor is a significant shareholder of APC and desires that
APC obtain the Loan;
WHEREAS, Holder is willing to extend the said credit facility only upon
the granting of the option hereunder and the pledge by Pledgor of all of a
security interest in Pledgor's shares of common stock of APC as a secondary
method to secure the repayment of the Loan as evidenced by the Note and Secured
Loan Agreement;
WHEREAS, both parties desire to enter into this Agreement,
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Optionor and Optionee
agree as follows:
1. OPTION GRANTED. Optionor hereby grants Optionee an option ("Option") to
purchase up to 3,605,257 shares of common voting stock of APC representing all
of the shares of authorized and issued common voting stock owned by Optionor
("Shares") in APC at the purchase price of $2.00 per share. This option may be
exercised in whole-share units as a series of options for any lesser amount
until all of the Shares have been acquired or in a single exercise for the
entire amount, all subject to the terms and conditions of this Agreement.
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2. TIME OF EXERCISE OF OPTION. Optionee may exercise its Option commencing
on the effective date of this Agreement, at any time, and from time to time
until, as provided in Paragraph 10 below, termination of the Option.
3. METHOD OF EXERCISE. This Option shall be exercised by written notice
from Optionee to Optionor, stating the number of shares for which the Option is
being exercised. The notice must be accompanied by surrender of this original
Agreement and payment for the full amount of the exercise price representing
good and immediately available funds. This Option shall be deemed exercised when
good and immediately available funds are confirmed to the account of Optionor
(or to the account of APC, per the election of Optionor).
4. ELECTION. Optionor may, subject to the call provisions set forth below,
elect to direct the proceeds of any exercise hereunder to APC for use by APC in
repayment of the Note and the obligations secured pursuant to the Secured Loan
Agreement. Optionor's first resource for payment of the Note and Secured
Obligations shall be from the exercise proceeds potentially available to APC
under this Agreement. Upon the written request of Optionee, Optionor shall
promptly provide Optionee with the results of Optionor's election as to whether
or not Optionor shall direct the exercise proceeds to APC. If Optionor elects to
direct the exercise proceeds to APC, Optionee shall exercise its options under
this Agreement as a first and primary source of repayment of the Note and
Secured Obligations and Optionee shall first look to such proceeds for
satisfaction and payment, whether or not APC actually pays such proceeds to
Optionee as holder under the Note, or otherwise.
5. EQUAL EXERCISE. It is the intent of the parties that each of Xxx X.
Xxxxxxxxx, The Access Holdings Limited Partnership, and Xxxxxx Xxxxxx, shall
grant options to Optionee in the nature of the Option granted herein and that
each of them shall pledge shares of common voting stock of APC as security for
the obligations under the Note and Secured Loan Agreement. Optionee shall
exercise the Option granted herein equally, share-for-share and
dollar-for-dollar, against all shares of common voting stock of APC in which
Optionee shall have been granted an option by Xxx X. Xxxxxxxxx, The Access
Holdings Limited Partnership, and Xxxxxx Xxxxxx. This Agreement, and the Option
granted herein shall be void and unenforceable to the extent that Optionee fails
to exercise the Option equally with options granted by each of Xxx X. Xxxxxxxxx,
The Access Holdings Limited Partnership, and Xxxxxx Xxxxxx, on a share-for-share
and dollar-for-dollar basis.
6. CALL. Optionor may call the Options, or any part thereof, at any time
after the expiration of eighteen (18) months from the effective date of this
Agreement. Upon Optionor's call of the Options, or any part thereof, Optionee
shall promptly either exercise the Option as called or determine not to exercise
the Option. To the extent that Optionee shall determine not to exercise the
Option as called, the Option, and this Option Agreement, shall then terminate as
to the Option so called and the Shares shall no longer be subject to the terms
and conditions of this Agreement with regard thereto. The above call shall be
made in writing and Optionee shall, within three (3) days of the date of the
call, either decline to exercise by a writing returned to Optionor so stating,
or exercise the Option by tender of the payment set forth at Section 3, above
(without the notice of exercise set forth thereat). All of the exercise proceeds
from exercise on call up to the amount of the then outstanding indebtedness
under the Note shall be directed to
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APC for use by APC in repayment of the Note and the obligations secured pursuant
to the Secured Loan Agreement; Optionor shall not be obligated to direct
exercise proceeds in excess of the then outstanding indebtedness under the Note
to APC.
7. MERGER AND CONSOLIDATION. Following the merger of one or more
corporations into APC or any consolidation of APC and one or more corporations
in which APC is the surviving corporation, the exercise of this Option shall
apply to the shares of the surviving corporation. Notwithstanding any other
provision of this Agreement, this Option shall terminate on the dissolution or
liquidation of APC, or on any merger or consolidation in which APC is not the
surviving corporation.
8. RIGHTS AS SHAREHOLDER. Optionee will not be deemed to be a holder of
any shares pursuant to the exercise of this Option until Optionee pays the
exercise price for the shares subject to exercise and a stock certificate or
certificates representing such shares is delivered to Optionee and Optionee is
reflected as a shareholder of APC on the transfer ledger maintained by APC's
transfer agent. No adjustment shall be made for dividends or other rights to
which the record date is prior to the date the stock certificate is delivered.
9. VOTING AND DIVIDEND RIGHTS. Nothing contained in this Agreement or with
regard to the Option will be construed as conferring upon Optionee the right to
vote or to consent or to receive notice as a shareholder of APC or any other
matters or any rights whatsoever as a shareholder of the APC prior to exercise
hereunder and the occurrence of the events set forth at Section 7, above.
Optionee acknowledges that no dividends or interest will be payable or accrued
in respect of this Option or the interest represented hereby or the Shares
purchasable hereunder until, and only to the extent that, the Option has been
exercised and the actions set forth at Section 7, above, shall have been
accomplished.
10. OPTIONS TRANSFERABLE. Subject to compliance with applicable Federal
and state securities laws, rules and regulations (including, without limitation,
Rule 144, to the extent applicable) and the restrictions, if any, imposed by any
other written agreement between Optionee and APC, this Option and all rights
hereunder are transferable, in whole or in part, upon surrender of this
Agreement and the Option represented hereby to Optionor properly endorsed and in
compliance with the provisions of this warrant.
11. TERM OF OPTION. This Option shall be for a term of five (5) years from
the Option's grant, which shall be deemed to be the effective date of this
Agreement, subject to earlier termination upon call as set forth at Section 6 of
this Agreement.
12. SECURITIES COMPLIANCE. Notwithstanding anything contained in this
Agreement to the contrary, this Agreement, the Option, and the rights granted to
Optionee hereunder, shall be, and are, expressly subject to all SEC and
securities, laws, rules, regulations and reporting and disclosure requirements,
to the extent applicable to the Optionor, Optionee, the Shares, and\or APC as a
reporting company (or to any of its subsidiaries), including, but not limited
to, shareholder voting and proxy solicitation rules. All assignments, sales,
transfers, or other dispositions of the Shares hereunder shall be made in
compliance with all applicable securities laws, rules and regulations, and
pursuant to registration of securities under the Securities Act of
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1933 ("Act") (and qualification under General Corporation Law of California) or
pursuant to an exemption from registration under the Act (and qualification
under General Corporation Law of California). Holder acknowledges that the
Shares may be subject to the restrictions on transfer set forth in Rule 144 of
the Rules promulgated under the Act. Any and all offers, sales, transfer or
other dispositions of the Shares shall be made only in compliance with Rule 144.
Holder shall comply with all policies and procedures established by the APC with
regard to Rule 144 matters.
13. MISCELLANEOUS.
13.1. NON-WAIVER OF BREACH. No delay or failure by either party to
detect, protest, or remedy the failure of the other party to perform an
obligation under this Agreement will constitute a waiver of the aggrieved
party's rights. No waiver of any provision of this Agreement or any rights or
obligations of either party hereunder will be effective, except pursuant to a
written instrument signed in advance by an authorized officer of the party or
parties waiving compliance; any such waiver will be effective only in the
specific instance and for the specific purpose specified in such writing.
13.2. RELATIONSHIP OF PARTIES. Nothing contained herein will be deemed
or construed as creating a joint-venture, franchise, partnership, agency or
similar relationship between Optionor and Optionee. Both parties agree that
Optionee may not bind Optionor to any legal obligation with any third party in
regards to this Agreement.
13.3. HEADINGS NOT CONTROLLING; SEVERABILITY; LANGUAGE OF THE CONTRACT.
The headings of this Agreement are provided for convenience and will not control
the interpretation of the Agreement. In the event that any provision hereof is
found invalid or unenforceable pursuant to a final judicial decree or decision,
the remainder of this Agreement will remain valid and enforceable according to
its terms. Both parties agree that the English language shall be the language
for interpretation of this Agreement.
13.4. ENTIRE AGREEMENT. This Agreement constitutes the entire under-
standing and agreement between Optionor and Optionee with respect to the subject
matter of the Agreement and supersedes any prior or contemporaneous oral or
written communications with respect to the subject matter hereof, all of which
are merged herein. This Agreement may not be amended or in any way altered
except by a written instrument signed by Optionor and Optionee.
13.5. NOTICES. Any notices permitted or required to be given between
the parties hereto will be made in writing and sent by certified,
return-receipt-requested mail, or by hand delivery with receipt obtained. Except
as specifically provided above, notices will be deemed delivered on the date of
receipt. Notices will be sent to the addresses noted below which may be changed
upon written notice:
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To Optionor:
Xxx X. Xxxxxxxxx
00000 Xxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
With copy to (which copy shall not constitute notice):
ACCESSPOINT CORPORATION
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Optionee:
NET INTEGRATED SYSTEMS, INC.
Xxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX XX
BERMUDA
With copy to (which copy shall not constitute notice):
Xxxxxxx X. Xxxxxx
c/o Sheraton Gateway Hotel
Penthouse Suite
0000 X. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
13.6. FRACTIONAL SHARES. No fractional shares of Common Stock will be
transferred upon exercise of this Option. This Option may be exercised in whole
shares, and multiple of whole shares, only.
13.7. RECOVERY OF LITIGATION COSTS. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover as an
element of their damages, reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which they may be
entitled.
13.8. GOVERNING LAW; VENUE. This Agreement will be construed and
enforced in accordance with, and the rights of the parties will be governed by,
the laws of the State of
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California without regard to or application of conflict of laws principles.
Venue in any action arising by reason of this Agreement shall lie exclusively in
Los Angeles County, California.
13.9. FORUM SELECTION. Any litigation hereunder shall be brought and
litigated exclusively in the state courts sitting in Los Angeles County,
California, or in the United States District Court(s) sitting in Los Angeles
County, California. All parties hereto consent to the personal jurisdiction of
such courts and waive any defense of forum non-conveniens. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such action, suit
or proceeding brought in such a court and any claim that any such action, suit
or proceeding brought in such a court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written, and that they have read, understood, agreed to
be bound by, and received a copy of, this Agreement.
OPTIONOR:
[NAME]
By:/s/ XXX X. XXXXXXXXX
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Xxx X. Xxxxxxxxx, an individual
OPTIONEE:
NET INTEGRATED SYSTEMS LTD.
By:/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, President
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CONSENT OF SPOUSE
I certify that:
(1) I am the spouse of the person who signed the foregoing Agreement.
(2) I have read and approve the provisions of that Agreement, including
but not limited to those relating to the grant of the Option and the purchase,
sale, or other disposition of the shares of stock described therein.
(3) I agree to be bound by and accept those provisions of the foregoing
Agreement in place of all other interests that I may have in the entities
described therein, whether the interest may be community property or otherwise.
Executed on December 13, 2001.
By: /s/ XXXXXX XXXXXXXXX
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Xxxxxx Xxxxxxxxx
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