Exhibit 4.03
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement, entered into as of the 20th
day of February 2004, between U.S. Telesis Holdings, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), with its principal address at X.X. Xxx 000, Xxxxxx, XX 00000 and
Xxxxxxxx Xxxxxxxxx residing at 00 Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (the
"Optionee").
1. The Corporation, pursuant to the terms and conditions hereinafter
set forth, grants as of the date hereof to the Optionee a nonqualified stock
option to purchase an aggregate of 167,000 shares of common stock, $.001 par
value per share ("Common Stock"), at an exercise price per share equal to the
fair market value of the share determined on the date this option becomes
exercisable with respect to the share (as provided in Paragraph 2). As of the
date hereof, the fair market value per share of the Common Stock is three cents
($0.03). Shares of Common Stock to be issued upon the exercise of this option
may, at the election of the Corporation, be either authorized and unissued
shares or shares previously issued and reacquired by the Corporation. This
option shall not be treated as an "incentive stock option" under Section 422 of
the Internal Revenue Code of 1986, as amended.
2. Subject to the provisions of Paragraphs 5 and 11 below, this option
shall become exercisable with respect to all of such shares on the date hereof
(the "Effective Date"). The right to purchase shares of Common Stock under this
Agreement shall be cumulative, so that if the full number of shares purchasable
at any given time shall not be purchased, then the balance may be purchased at
any time or from time to time thereafter, but not after the Expiration Date (as
defined in Paragraph 3).
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3. This option shall expire at the close of business on February 20,
2009 (the "Expiration Date"), provided that this option shall terminate
immediately if the Optionee's employment is terminated for cause. In the event
the Expiration Date falls during a period in which an underwriter has prohibited
sales of shares issuable upon exercise of this option as provided in Section
11(a), then the Expiration Date shall be extended to the ninetieth (90th) day
following the end of the period in which such sales are prohibited.
4. This option shall be exercised by the delivery by the Optionee (or
the executor, administrator, or other person who at the time is entitled by law
to exercise the rights of the deceased or incapacitated Optionee) of written
Notice of Exercise in the form annexed hereto to the Corporation at its
principal office, presently located at X.X. Xxx 000, Xxxxxx, XX 00000,
Attention: Secretary, stating that the Optionee is exercising this non-qualified
stock option, specifying the number of shares being purchased and accompanied by
payment in full of the aggregate purchase price therefor in cash or by certified
check. For this purpose, the "Fair Market Value" of a share of Common Stock on
any day shall mean (a) if the principal market for the Common Stock is a
national securities exchange, the average of the highest and lowest sales prices
per share of the Common Stock on such day as reported by such exchange or on a
composite tape reflecting transactions on such exchange, (b) if the principal
market for the Common Stock is not a national securities exchange and the Common
Stock is quoted on the Nasdaq Stock Market ("Nasdaq"), and (i) if actual sales
price information is available with respect to the Common Stock, the average of
the highest and lowest sales prices per share of the Common Stock on such day on
Nasdaq, or (ii) if such information is not available, the average between the
highest bid and the lowest asked prices per share of Common Stock on such day on
Nasdaq, or (c) if the principal market for the Common Stock is not a national
securities exchange and the Common Stock is not quoted on Nasdaq, the average of
the highest bid and lowest asked prices per share for the Common Stock on such
day as reported on the Nasdaq OTC Bulletin Board Service or by National
Quotation Bureau, Incorporated or a comparable service; provided that if clauses
(a), (b) and (c) of this paragraph are all inapplicable, or if no trades have
been made or no quotes are available for such day, the fair market value of a
share of Common Stock shall be determined by the Board of Directors of the
Corporation.
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5. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current at the time of exercise or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
exercise. The Optionee hereby represents and warrants to the Corporation that,
unless a Registration Statement is effective and current at the time of exercise
of this option, the shares of Common Stock to be issued upon the exercise of
this option will be acquired by the Optionee for his own account, for investment
only and not with a view to the resale or distribution thereof. In any event,
the Optionee shall notify the Corporation of any proposed resale of the shares
of Common Stock issued to him upon exercise of this option. Any resale or
distribution of such shares of Common Stock by him may be made only pursuant to
(x) a Registration Statement under the Securities Act which is effective and
current with respect to the shares of Common Stock being sold, or (y) a specific
exemption from the registration requirements of the Securities Act, but in
claiming such exemption, the Optionee shall prior to any offer of sale or sale
of such shares of Common Stock provide the Corporation with a favorable written
opinion of counsel satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, as to the applicability of such exemption to
the proposed sale or distribution. Such representations and warranties shall
also be deemed to be made by the Optionee upon each exercise of this option.
Nothing herein shall be construed as requiring the Corporation to register
shares subject to this option under the Securities Act.
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6. Within six months of the date on which the Corporation shall have
become a registered company pursuant to Section 12(g) of the Securities Exchange
Act of 1934, and shall have satisfied all other requirements for filing of a
Form S-8 registration statement with the Securities and Exchange Commission, the
Corporation shall make all commercially reasonable efforts to register the
shares of Common Stock that are subject to this Option by filing a Form S-8 with
respect to such shares with the Securities and Exchange Commission.
7. Nothing herein shall confer upon the Optionee any right to continue
as an employee of the Corporation or any of its subsidiaries or interfere in any
way with any right of the Corporation or any subsidiary to terminate such
relationship at any time for any reason without liability to the Corporation or
subsidiaries. Neither the Optionee nor his legal representatives shall have any
of the rights or privileges of a shareholder of the Corporation in respect of
any of the shares issuable upon the exercise of this option, unless and until
certificates representing such shares shall have been issued and delivered.
8. The Corporation may withhold cash and/or shares of Common Stock in
the amount, if any, necessary to satisfy its obligations to withhold taxes or
other amounts by reason of the grant, exercise or disposition of the option or
the shares of Common Stock underlying the option, or may require the Optionee to
pay the Corporation such amount. The Optionee agrees to pay any such amount to
the Corporation in cash upon demand.
9. The Corporation may affix appropriate legends upon the certificates
for shares and may issue such "stop transfer" instructions to its transfer agent
in respect of such shares as it determines, in its discretion, to be necessary
or appropriate to (a) prevent a violation of, or to perfect an exemption from,
the registration requirements of the Securities Act, or (b) implement the
provisions of any agreement between the Corporation and the Optionee with
respect to such shares.
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10. The Optionee represents and agrees that he will comply with all
applicable laws relating to the grant and exercise of this option and the
disposition of the shares of Common Stock acquired upon exercise of this option,
including without limitation, Federal and state securities and "blue sky" laws.
11. Any sales of shares received by Optionee upon exercise of the
option may be sold only in compliance with applicable laws respecting the sale
of shares of securities of the Corporation by officers, directors and control
persons, and, without regard to the applicability of such limitations, only in
amounts that do not exceed the volume limitations on sales of securities by an
affiliate of an issuer imposed by Rule 144(e) promulgated under the Securities
Act of 1933.
12. This option is not transferable by the Optionee other than upon
his death by will or the laws of descent and distribution. Neither this option
nor any of the rights and privileges conferred hereby shall, except as
specifically permitted in the immediately preceding sentence, be transferred,
assigned, pledged (as collateral for a loan, or as security for the performance
of an obligation, or for any other purpose), or hypothecated in any way (whether
voluntarily, by operation of law or otherwise) or be subject to execution,
attachment, or similar process. Any attempted transfer, assignment, pledge (as
collateral for a loan or as security for the performance of any obligation, or
for any other purpose), hypothecation, execution, attachment or similar process,
which is not specifically permitted hereunder, shall be null and void and of no
force or effect.
13. In the event that, prior to the issuance by the Corporation of all
the shares pursuant to this option, there shall be any change in the outstanding
Common Stock of the Corporation by reason of a stock dividend, stock split,
spin-off, stock combination, recapitalization, merger in which the Corporation
is the surviving corporation or the like, the remaining number of shares still
subject to this option and the exercise price therefor shall be proportionally
adjusted by the Board of Directors of the Corporation to reflect such change.
Such adjustment may provide for the elimination of fractional shares which might
otherwise be
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subject to options, without payment therefor. The determination of the Board of
Directors with respect thereto shall be conclusive and binding on the parties,
provided the Board of Directors was acting in good faith in making such
determination. In the event of (a) a consolidation, (b) a merger (or a similar
transaction) in which the Corporation is not the surviving corporation, (c) a
merger (or a similar transaction) in which the Corporation is the surviving
corporation but more than 50% of the outstanding Common Stock is transferred or
exchanged for other consideration or in which the shares of Common Stock are
issued in an amount in excess of the number of shares of Common Stock
outstanding immediately preceding the merger (or similar transaction), or (d) a
sale of all or substantially all of the Corporation's assets, then, in each such
case, the Optionee, upon exercise of this option at any time after the
consummation of such consolidation, merger sale, or similar transaction, shall
be entitled to receive the stock or other securities or property to which the
Optionee would have been entitled upon such consummation if the Optionee had
exercised this option immediately prior thereto; and in each such case, the
terms of this option shall be applicable to the shares of stock or other
securities or property receivable upon exercise of this option after such
consummation. Upon the liquidation or dissolution of the Corporation, this
option shall terminate, unless other provision is made therefor.
14. The invalidity, unenforceability or illegality of any provision
herein shall not affect the validity, enforceability or legality of any other
provision.
15. This Agreement shall be binding upon and inure to the benefit of
any successor or assign of the Corporation and to any heir, distributee,
executor, administrator or legal representative entitled by law to the
Optionee's rights hereunder. This Agreement may not be amended except in writing
signed by the parties.
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16. Whenever notice is required to be given under the terms of this
Agreement, such notice shall be in writing and shall be deemed delivered:
(a) If to the Corporation, upon receipt by the Corporation, at the
Corporation's address set forth above, Attention: Secretary, or such other
address as the Corporation may designate by notice to the Optionee, effective
upon receipt of such notice by the Optionee.
(b) If to the Optionee, as of the day it is personally delivered,
or 5 days after mailing, by registered or certified mail, return receipt
requested, postage prepaid, at the Optionee's address set forth above, or such
other address as the Optionee may designate by notice to the Corporation,
effective upon receipt of such notice by the Corporation.
17. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to conflict of law
provisions.
18. This Agreement constitutes the entire understanding between the
parties with respect to the subject matter hereof and supersedes any prior
agreements with respect thereto.
19. The Corporation shall pay all issuance taxes with respect to the
shares of Common Stock upon exercise of this option, as well as all expenses
incurred by the Corporation in connection therewith.
20. This option shall not be construed or interpreted with any
presumption against the Corporation by reason of the Corporation causing this
Agreement to be drafted.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above set forth.
U.S. TELESIS HOLDINGS, INC.
By /s/ Xxxxx Xxxxx Prag IV
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Name: Xxxxx Xxxxx Prag IV
Title: Secretary
/s/ Xxxxxxxx Xxxxxxxxx
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Optionee
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