1
EXHIBIT 10.16
EXECUTION COPY
ISSUER OPTION AGREEMENT
This Issuer Option Agreement (this "Agreement") is made and entered
into effective this 10th day of April, 2000, by and among eVentures Group, Inc.,
a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Stockholder")
on the terms and conditions set forth below:
WHEREAS, the Stockholder is currently the owner of 1,500,000 shares of
common stock of the Company, par value $0.00002 per share ("Common Stock");
WHEREAS, the Stockholder wishes to grant an option to the Company to
purchase 300,000 shares of Common Stock owned by him, subject to the adjustments
set forth in this Agreement (the "Option Shares");
WHEREAS, the Company wishes to purchase, and the Stockholder wishes to
grant to the Company, an option to purchase the Option Shares from the
Stockholder;
NOW THEREFORE, for good and valuable consideration, the parties agree
as follows:
1. Grant of Option. Upon the terms and subject to the conditions
contained in this Agreement, the Company is entitled, upon written notification
to the Stockholder as provided in Section 6 below, to purchase from the
Stockholder at one or more times prior to the Expiration Date (as defined below)
a portion or all of the Option Shares for an exercise price (the "Exercise
Price") of (a) $15.00 per Option Share for any exercise of the Option during the
period from the date hereof to and including September 22, 2000; and (b) $20.00
per Option Share for any exercise of the Option during the period from and
including September 23, 2000 to and including September 22, 2001 (the "Option").
The Option may be exercised one or more times until all Option Shares have been
transferred to the Company.
2. Purchase Price for Option. The purchase price for the Option shall
be $100,000 (the "Purchase Price"). The Company shall pay the Purchase Price on
the date two days after the date hereof by wire transfer in immediately
available funds to an account designated in writing to the Company by the
Stockholder prior to the date hereof.
3. Expiration of Option. The Option shall expire at 11:59 p.m. on
September 22, 2001, Central Time (United States) (the "Expiration Time").
4. Exercise of Option. The Option may not be exercised:
(a) during any period that the Company is engaged in a
"distribution" as that term is defined in Regulation M promulgated under the
Securities Exchange Act of 1934 ("Regulation M");
2
(b) during any period that the Stockholder is a "distribution
participant" or an "affiliated purchaser" as those terms are defined in
Regulation M;
(c) during any "restricted period" or "reference period", as
those terms are defined in Regulation M; or
(d) at any time the independent bid price on the Nasdaq (as
defined in Regulation M) stock market for shares of Common Stock (or other
market if the Common Stock is not trading on the Nasdaq) is less than the
Exercise Price then in effect under this Agreement.
5. Adjustment of Option Shares. The number of Option Shares shall be
subject to adjustment as follows:
(a) If the Company:
(i) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common
Stock into a greater number of shares;
(iii) combines its outstanding shares of Common
Stock into a smaller number of shares;
(iv) makes a distribution on its Common Stock in
shares of its capital stock other than Common Stock; or
(v) issues by reclassification of its Common Stock
any shares of its Common Stock (including any such
reclassification in connection with a consolidation or merger in
which the Company is the surviving corporation),
then the Option Shares immediately prior to such action shall be
adjusted to apply to the aggregate number and kind of shares of Common
Stock (or such shares of capital stock other than Common Stock) of the
Company that the Company would have owned immediately following such
action if the Company had exercised the Option immediately prior to
such action.
(b) The adjustment shall become effective on the record date in
the case of a dividend or distribution and on the effective date in the case of
a subdivision, combination or reclassification.
(c) Whenever the number of Option Shares is adjusted under this
Section 5, the Company shall promptly mail to the Stockholder a notice of such
adjustment.
2
3
6. Exercise Procedures; Closing.
(a) To exercise the Option with respect to all Option Shares held
by the Stockholder, the Company shall deliver a notice to the Stockholder, prior
to the Expiration Time, indicating that the Company wishes to exercise the
Option for all Option Shares held by the Stockholder, and stating that the
Stockholder is to deliver all Option Shares held by the Stockholder.
(b) To exercise the Option with respect to a portion of the
Option Shares, the Company shall deliver a notice to the Stockholder, prior to
the Exercise Time, indicating that the Company wishes to exercise the Option for
less than all Option Shares and specifying how many Option Shares are to be
delivered by the Stockholder.
(c) Within five days of delivery of such notice pursuant to
Section 6(a) or (b), the Company and the Stockholder shall agree upon a date for
the delivery of Option Shares and payment of the exercise price being paid
therefor (the "Closing"), which shall not be later than ten days from the date
of delivery of such notice. At the Closing, the Company shall tender the
exercise price by wire transfer or cashier's check upon delivery of certificates
representing such number of Option Shares for which the Option has been
exercised.
(d) If the Company exercises the Option for less than all Option
Shares and the Stockholder delivers a certificate or certificates representing
shares in excess of the number of Option Shares for which the Option has been
exercised (the "Excess Shares"), upon delivery of such certificate or
certificates the Company shall or shall cause its transfer agent to issue a new
certificate to the Stockholder representing the Excess Shares.
(e) The Stockholder shall execute such documents and take such
actions as may be necessary to effectuate the transfer of Option Shares to the
Company upon an exercise of the Option.
7. Pro Rata Exercise. The Stockholder acknowledges that the Company is
entering into option agreements with other stockholders on the same terms as
this Agreement and that the Company intends to exercise the Option and the
options under the other option agreements in equal amounts pro rata among the
stockholders.
8. Stop Transfer Order. The Stockholder acknowledges that the Company
may register a stop transfer order in respect of transfers of the Option Shares
other than to the Company in the books and records of the Company which shall be
effective until the Expiration Time.
9. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to the Company as follows, as of the date hereof
and each Closing:
(a) The Stockholder has good and marketable title to the Option
Shares, free and clear of all liens, encumbrances, claims, rights of first
refusal, options, security interests,
3
4
charges, pledges or restrictions on transfer of any nature whatsoever
(collectively, "Encumbrances"), with the exception of restrictions of transfer
set forth in the Registration Rights Agreement, dated September 22, 1999,
between the Company and certain stockholders of the Company, including the
Stockholder. Other than this Agreement, there is no subscription, option,
warrant, call, right, agreement or commitment relating to the sale, delivery or
transfer by either of them of the Option Shares. Upon the sale of the Option
Shares to the Company at a Closing, the Stockholder will transfer to the Company
the entire legal and beneficial interest in all Option Shares being delivered at
such Closing, free and clear of any Encumbrances. The Stockholder is not a party
to any agreement or understanding with respect to the voting, control or
beneficial ownership of the Option Shares, nor is a proxy in effect for any of
the Option Shares.
(b) This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
(c) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Stockholder is
required in connection with the consummation of the transactions contemplated by
this Agreement.
(d) The execution, delivery and performance of this Agreement
does not and will not violate (i) with or without notice or the lapse of time,
the terms of any contract, agreement, obligation, commitment, license,
indenture, mortgage, deed of trust, loan or credit agreement or any other
agreement or instrument to which the Stockholder is a party or (ii) any
judgment, decree, order, statute, rule or regulation of any federal, state or
local government or agency applicable to the Stockholder.
10. Representations and Warranties of the Company; Transfers. The
Company hereby represents and warrants to the Stockholder, as of the date hereof
and each Closing, that this Agreement has been duly and validly executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies. The Company will
not transfer, assign or pledge this Agreement in a manner which violates the
Securities Act of 1933 or any other applicable laws.
11. Indemnification. The Stockholder hereby agrees to indemnify, defend
and hold harmless the Company against and in respect of any and all Indemnified
Damages (as defined below) that result to the Company from (i) any breach or
inaccuracy of any representation or
4
5
warranty or any material omission made by the Stockholder in or pursuant to this
Agreement, and (ii) any breach or default in the performance by the Stockholder
of any of the obligations to be performed by the Stockholder hereunder. For
purposes of this Section 11, the term "Indemnified Damages" means any and all
claims, actions, demands, losses, costs, expenses, liabilities, penalties, and
other damages, including without limitation, reasonable attorneys' fees and
other costs and expenses reasonably incurred in investigating or attempting to
avoid same, in opposing the imposition of the same, and/or in enforcing this
indemnity. The Stockholder shall obtain the prior written consent of the
Company, which shall not be unreasonably withheld, before ceasing to defend
against such claim or entering into any settlement, adjustment, or compromise of
such claim unless such settlement, adjustment, or compromise involves only the
payment of monetary consideration by the Stockholder and does not involve any
admission of fact that might have a material adverse effect on the future
business or operations of the Company or that might reasonably prejudice the
Company in subsequent or other litigation. The Stockholder shall reimburse the
Company on demand for any payment made or damages sustained by the Company at
any time after a Closing, whether based upon the judgment of any court of
competent jurisdiction, pursuant to a bona fide compromise or settlement of
claims, demands or actions, or otherwise in respect of any Indemnified Damages.
12. Miscellaneous.
(a) All notices given, and payments made, hereunder shall be
effectuated by either personal delivery or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to the Company, to:
eVentures Group, Inc.
Xxx Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Vice President and Chief Financial Officer
Telephone: (000) 000-0000
Facsimile Number: (000) 000-0000
with a copy to:
eVentures Group, Inc.
c/o HW Partners, L.P.
0000 Xxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile Number: (000) 000-0000
5
6
If to the Stockholder, to:
AxisTel Communications, Inc.
Xxx Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile Number: (000) 000-0000
(b) All representations and warranties of the Stockholder and the
Company contained in or made pursuant to this Agreement shall be deemed to be
material and shall be deemed to have been relied upon by the party to whom such
representations and warranties are made, as a material inducement to enter into
and close this Agreement and to consummate the transfer of the Option Shares.
The representations and warranties of the Stockholder and the Company contained
in this Agreement shall survive the execution and delivery of this Agreement and
any Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Stockholder or the Company.
(c) The Company may assign all of its rights under this Agreement
at any time, including the right to exercise the Option, without the consent of
the Stockholder, provided that any assignment is made in compliance with all
applicable securities laws. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto, including any
transferee of Option Shares.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(e) This Agreement contains the entire agreement of the parties
with respect to the option described herein, and supersedes all prior and
contemporaneous oral or written agreements, understandings, and the like among
the parties. There shall be no modification or amendment of this Agreement, nor
any waiver of any rights under this Agreement, unless expressly embodied in a
writing signed by the party to be charged.
(f) If one or more of the provisions of this Agreement or any
part of any provision of this Agreement is deemed to be void, voidable or
unenforceable for any reason, the remaining provisions or parts of a provision
will be severable therefrom and remain in full force and effect.
(g) In the event of any demand, action or proceeding arising out
of this Agreement, the prevailing party shall be entitled to an award of
attorneys' fees, costs and expenses (whether or not considered taxable costs) in
addition to any other relief to which he or she may be entitled.
6
7
(h) The Stockholder acknowledges that monetary damages would not
be an adequate remedy for a failure by the Stockholder to deliver the Option
Shares as provided herein, and agree that the Company shall be entitled to seek
specific performance in such event.
(i) Any dispute related to or arising out of this Agreement shall
be resolved by binding arbitration before, and pursuant to the rules of, the
American Arbitration Association in New York, New York.
* * * *
7
8
Dated: April 24, 2000 /s/ Xxxxxxx X. Xxxxxxx President
--------------------------------------------
eVentures Group, Inc.
Dated: April 10, 2000 /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
8
