EXHIBIT 5
EMPLOYMENT CONTRACT FOR XXXX XXXXXX
This agreement is made May 27, 1994, at the City of Fort
Lauderdale, County of Broward, State of Florida, between
INTERNATIONAL TRAINING & EDUCATION CORP., employer, and XXXX
XXXXXX, employee,
Employer is engaged in the development of computer software
for training and education material and maintains a business
in the City of Fort Lauderdale, County of Broward, State of
Florida,
Employee is willing to be employed by employer, and employer
is willing to employ employee, on the terms, covenants, and
conditions set forth in this agreement,
WHEREAS it is the intent of employer to obtain a full-time
employee with integrity and requisite qualifications who has
prior working experience with employer, to continue to act
in an executive management function with the corporation,
and it is the intent of XXXX XXXXXX to fulfill the intent of
employer and be compensated for such employment.
In consideration of the mutual covenants and promises of the
parties, employer and employee covenant and agree as
follows:
SECTION ONE: Employer does hire and employ employee as
Executive Vice-President and Vice-Chairman of its entire
corporation, and employee does accept and agree to such
hiring and employment. In consideration of the invaluable
and sustaining contributions during the inception, research
and development of the company, XXXX XXXXXX will, in
perpetuity, possess the title of co-founder and co-owner of
the company and its subsequent holdings. This title is not
related to continued employment or any amount of stock
holdings retained, Subject to the supervision and pursuant
to the orders, advice, and directions of employer, employee
shall direct all phases of said corporation, subject only to
the final direction of employer, and shall perform such
other duties as are customarily performed by one holding
such position in other similar businesses or enterprises as
that engaged in by employer, and shall also additionally
render such other and unrelated services and duties as may
be assigned to employee from time to time by employer,
1
SECTION TWO: Employee agrees to perform, at all times
faithfully, industriously, and to the best of his ability,
experience, and talent, all of the duties that may be
required of and from him pursuant to the express and
implicit terms of this agreement, to the reasonable
satisfaction of employer. Such duties shall be rendered at-
employer's Fort Lauderdale place of business and at such
other place or places as employer shall in good faith
require or as the interests, needs, business, and
opportunities of employer shall require or make advisable.
SECTION THREE: The term of this agreement shall be for a
period of five (5) years, commencing on May 27, 1994,, and
terminating on May 26, 1999, subject, however,, to prior
termination as provided below. Should employer cancel this
employment contract without cause employee shall receive a
lump sum liquidated amount of ONE MILLION ($li,000p,000,00)
DOLLARS as severance pay.
SECTION FOUR: Employer shall pay employee and employee
agrees to accept from employer, for employee's services
under this agreement, compensation at the gross rate of
FIFTY-FIVE THOUSAND ($55,,000.00) DOLLARS per year for
serving as Vice-Chairman and Executive VicePresident,
payable pro rata at the beginning of each month, Employer
shall increase employees salary by FIFTY (50%) PERCENT as
President and CEO if and/or when the employer's net income
doubles during any contractual year, In addition, employer
agrees to compensate employee at the net rate of TEN
THOUSAND ($10,000.00) DOLIARS per year for serving as Vice-
Chairman, payable pro rata at the beginning of each month.
Employer further agrees to compensate employee under an
"executive bonus plan" at the net rate of THREE THOUSAND
($3,OOO.OO) DOLLARS per month at the beginning of each month
for personal living expenses. It is expressly understood
that employee's compensation under this agreement may be
supplemented by additional stock option plans from employer.
In addition, employer agrees that it will reimburse it is
expressly understood that employee's compensation under this
agreement may be supplemented by additional stock option
plans from employer. In addition, employer agrees that it
will reimburse employee for any and all necessary,
customary, and usual expenses incurred by him on behalf of
the employer pursuant to employer's directions.
SECTION FIVE: Employer shall provide PPO family health
insurance as well as dental insurance to employee with no
contribution required from employee.
SECTION SIX: Employer shall provide life insurance in the
amount of $1,,000,,000.00 for the benefit of employee, and
shall also provide life insurance for employees spouse in
the amount of $500,000.00 for the benefit of employee.
SECTION SEVEN: Employer shall provide a company vehicle,
Lexus 400 LS, or the financial equivalent at employee's
option, to employee and provide all maintenance, insurance,
repair and fuel to said vehicle.
SECTION EIGHT: Employer shall provide three (3) weeks annual
paid vacation and two (2) weeks annual paid sick leave to
employee. In addition to vacation and sick days, the
employee shall have the following designated holidays: New
Year's Day, Birthday of Xxxxxx Xxxxxx Xxxx, Xx. , Lincoln's
Birthday, Washington's Birthday,, Good Friday,, Memorial
Day,, July 4th, Labor Day,, Election Day,, Columbus Day?
Veterans' Day, Thanksgiving Day and the following Friday,
and Christmas Day (Note: Should any of the above dates fall
on a Saturday or Sunday,, the following Monday shall be
deemed as a holiday). Employee may accumulate unused
vacation and sick time and convert same to cash on a 100%
salary basis at the end of any contract year,
SECTION NINE: Employer shall compensate employee as a
'Performance Bonus" of SIX (6%) PERCENT override of the
gross of all contracts obtained for the benefit of employer.
Said performance bonus to be paid in lump sum to employee.
In addition to the above compensation, in consideration of
the potential product development resulting from the highly
creativeness of employee, should employee produce and/or
develop a program or product that is successfully marketed
in an existing format (computer) and existing market
(Criminal Justice, Medical, Elder Abuse, OSHA, HazMat or
Education), employee shall receive as a bonus a five-year
stock option for 50,000 shares of Common @ $0.10 per share.
Should employee develop a program or product that is
successfully marketed in a new format and/or new market
area, employee shall receive as a bonus a five-year stock
option for 200,000 shares of Common @ $0.10 per share.
SECTION TEN: Employer shall be responsible for all tax
liability of employee as a result of compensation received
by employee pursuant to this agreement.
SECTION ELEVEN: Notwithstanding anything in this agreement
to the contrary, employer has the option to terminate this
agreement in the event that during its term employee shall
become permanently disabled as the term permanently disabled
is defined below. Such option shall be exercised by
employer giving notice to employee by registered mail, The
giving of such notice this agreement and the term of this
agreement come to an end on the last day of the month in
which the notice is mailed, with the same force and effect
as is that day were originally set forth as the termination
date, For the purposes of the agreement, employee shall be
deemed to have become permanently disabled if, during any
year of the term of this agreement, because of ill health,
physical or mental disability, or for other causes beyond
his control, he shall have been continuously unable or
unwilling or have failed to perform his duties under this
contract for 30 consecutive days, or if, during any year of
the term of this agreement, - he shall have been unable or
unwilling or have failed to perform his duties for a total
period of 60 days, either consecutive or not, For the
purposes of this agreement, the term "any year of the term
of this agreement" is defined to mean any period of 12
calendar months commencing on the first day of May and
terminating on the last day of April of the following year
during the term of this agreement.
SECTION TWELVE: Employee shall devote all his time,
attention, knowledge, and skill solely and exclusively to
the business and interest of employer, and employer shall be
entitled to all of the benefits, emoluments,, profits,, or
other issues arising from or incident to any and all work,
services, and advice of employee, and employee expressly
agrees that during the term of this agreement he will not be
interested, directly or indirectly, in any form, fashion, or
manner, as partner, officer, director, stockholder, advisor,
employee, or in any other form or capacity,, in any other
business similar to employer's business or any allied
trade; provide however, that nothing shall be deemed to
prevent or limit the right of employee to invest any of his
funds in the capital stock or other securities of any
corporation whose stock or securities are publicly owned or
are regularly traded on any public exchange., nor shall
anything be deemed to prevent employee from investing or
limit employee's right to invest his funds in real estate.
SECTION THIRTEEN: Employee further specifically agrees that
he will not at any time, in any manner, either directly or
indirectly, communicate to any person, form, or corporation
any information of any kind concerning any matters affecting
or relating to the business of employer, including, without
limiting the generality of the foregoing, the names of any
of its customers,, the prices it obtains or has obtained or
at which it sells or has sold its products,, or any other
information of, about, or concerning the business of
employer, its manner of operation, its plans, processes, or
other date of any kind, nature, or description without
regard to whether any or all of the foregoing matters would
be deemed confidential, material, or important, the parties
stipulating- that as between them, the matters are
important, material,, and confidential and gravely affect
the effective and successful conduct of the business of the
employer, and its goodwill,, and that any breach of the
terms of this paragraph is a material breach of this
agreement,
SECTION FOURTEEN: Anything contained in this agreement to
the contrary notwithstanding, it is understood and agreed
that employee shall not have the right to make any contracts
or commitments for or on behalf of employer without the
written consent of employer.
SECTION FIFTEEN: Employee,, recognized as co-founder and co-
owner of the company with ' Xxxx Xxxxxxxx, is granted a one
(1) year first right of refusal to purchase any and all
issued shares owned by Xxxx Xxxxxxxx upon the death of Xxxx
Xxxxxxxx. The price of the shares shall be the official
public listed price of said stock at the time of death of
Xxxx Xxxxxxxx. This section is personal in nature and may
only be exercised individually by Xxxx Xxxxxx,
SECTION SIXTEEN: This written agreement contains the sole
and entire agreement between the parties and shall supersede
any and all other agreements between the parties. The
parties acknowledge and agree that neither of them has made
any representation with respect to the subject matter of
this agreement or any representations inducing its execution
and delivery except such representations as are specifically
set forth in this writing and the parties acknowledge that
they have had the opportunity to have legal counsel of their
choice review this agreement prior to entering into the
same,
SECTION SEVENTEEN: It is agreed that no waiver or
modification of this agreement or of any covenant,
condition, or limitation contained in it shall be valid
unless it is in writing and duly executed by the party to be
charged with it, and that no evidence of any waiver or
modification shall be offered or received in evidence in any
proceeding, arbitration, or litigation between the parties
arising out of or affecting this agreement, or the rights or
obligations of any party under it, unless such waiver or
modification is in writing, duly executed as above. The
parties agree that the provisions of this paragraph may not
be waived except by a duly executed writing.
SECTION EIGHTEEN: The parties agree that it is their
intention and covenant that this agreement and performance
under it and all suits relating to it be construed in
accordance with and under and pursuant to the laws of the
State of Florida, with venue in Broward County,
SECTION NINETEEN: This agreement shall be binding on and
inure to the benefit of the respective parties and their
executors, administrators, heirs,, personal
representatives,, successors and assigns.
SECTION TWENTY: Severability, Should any portion of this
agreement be found to be unenforceable at law, the remaining
provisions of this agreement are to remain in full force and
effect.
NOTICE REQUIREMENTS SENT TO:
INTERNATIONAL TRAINING & EDUCATION CORP., 000 X. Xxxxxxx
Xxxxx Xxxx, Xxxxx 000 Xxxx Xxxxxxxxxx, XX 00000
XXXX XXXXXX
5400 8W 0 Xxxxx
Xxxxxxx, XX 00000
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and Xxxx
Xxxxxx (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Employment Agreement, dated October 3, 1996,
between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[120,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Employee/Director DigiMedia USA, Inc.
By By.
Dated: Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103630 120,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies Xxxx Xxxxxx, or
his registered
assigns ("Option Holder") ' is the registered owner of the
above indicated number of Options (hereinafter referred to
as the "Option") expiring on ("Expiration Date"). One (1)
Option entitles the Option Holder to purchase one (1) share
of common stock, $.000667 par value ("Share"), from
DigiMedia USA, Inc., a Nevada corporation ("Company"), at a
purchase price of One Hundred (100%) percent of the NASD
closing bid price for over-the-counter securities as of the
date vested per share of Common Stock ("Exercise Price"),
commencing on October 3, 1996 and terminating on the
Expiration Date ("Exercise Period"), upon surrender of this
Option Certificate with the exercise form hereon duly
completed and executed with payment of the Exercise Price at
the office of the Company being 0000 XX 00xx Xxxxxx, Xxxx
Xxxxxxxxxx, XX. 00000, subject only to the conditions set
forth herein and in an Option Agreement dated as of October
3, 1996 (the "Option Agreement") between the Company and
Employee. The Option Holder may exercise all or any number
of Options. Reference hereby is made to the provisions on
the following pages of this Option Certificate and to the
provisions of the Option Agreement, all of which are
incorporated by reference in and made a part of this Option
Certificate and shall for all purposes have the same effect
as though fully set forth at this place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
EMPLOYMENT CONTRACT FOR Xxxx X. Xxxxxxxx
This agreement is made May 27, 1994, at the City of Fort
Lauderdale, County of Broward, State of Florida, between
INTERNATIONAL TRAINING & EDUCATION CORP., employer, and Xxxx
X. Xxxxxxxx, employee,
Employer is engaged in the development of computer software
for training and education material and maintains a business
in the City of Fort Lauderdale, County of Broward, State of
Florida,
Employee is willing to be employed by employer, and employer
is willing to employ employee, on the terms, covenants, and
conditions set forth in this agreement,
WHEREAS it is the intent of employer to obtain a full-time
employee with integrity and requisite qualifications who has
prior working experience with employer, to continue to act
in an executive management function with the corporation,
and it is the intent of Xxxx X. Xxxxxxxx to fulfill the
intent of employer and be compensated for such employment.
In consideration of the mutual covenants and promises of the
parties, employer and employee covenant and agree as
follows:
SECTION ONE: Employer does hire and employ employee as
Executive Vice-President and Vice-Chairman of its entire
corporation, and employee does accept and agree to such
hiring and employment. In consideration of the invaluable
and sustaining contributions during the inception, research
and development of the company, XXXX XXXXXX will, in
perpetuity, possess the title of co-founder and co-owner of
the company and its subsequent holdings. This title is not
related to continued employment or any amount of stock
holdings retained, Subject to the supervision and pursuant
to the orders, advice, and directions of employer, employee
shall direct all phases of said corporation, subject only to
the final direction of employer, and shall perform such
other duties as are customarily performed by one holding
such position in other similar businesses or enterprises as
that engaged in by employer, and shall also additionally
render such other and unrelated services and duties as may
be assigned to employee from time to time by employer,
SECTION TWO: Employee agrees to perform, at all times
faithfully, industriously, and to the best of his ability,
experience, and talent, all of the duties that may be
required of and from him pursuant to the express and
implicit terms of this agreement, to the reasonable
satisfaction of employer. Such duties shall be rendered at-
employer's Fort Lauderdale place of business and at such
other place or places as employer shall in good faith
require or as the interests, needs, business, and
opportunities of employer shall require or make advisable.
SECTION THREE: The term of this agreement shall be for a
period of five (5) years, commencing on May 27, 1994,, and
terminating on May 26, 1999, subject, however,, to prior
termination as provided below. Should employer cancel this
employment contract without cause employee shall receive a
lump sum liquidated amount of TWO MILLION ($2,000,000,00)
DOLLARS as severance pay.
SECTION FOUR: Employer shall pay employee and employee
agrees to accept from employer, for employee's services
under this agreement, compensation at the gross rate of
FIFTY-FIVE THOUSAND ($85,000.00) DOLLARS per year for
serving as Chairman and President, payable pro rata at the
beginning of each month, Employer shall increase employees
salary by FIFTY (50%) PERCENT as President and CEO if and/or
when the employer's net income doubles during any
contractual year, In addition, employer agrees to compensate
employee at the net rate of TEN THOUSAND ($10,000.00)
DOLIARS per year for serving as Chairman, payable pro rata
at the beginning of each month. Employer further agrees to
compensate employee under an "executive bonus plan" at the
net rate of THREE THOUSAND ($5,OOO.OO) DOLLARS per month at
the beginning of each month for personal living expenses.
It is expressly understood that employee's compensation
under this agreement may be supplemented by additional stock
option plans from employer. In addition, employer agrees
that it will reimburse it is expressly understood that
employee's compensation under this agreement may be
supplemented by additional stock option plans from employer.
In addition, employer agrees that it will reimburse employee
for any and all necessary, customary, and usual expenses
incurred by him on behalf of the employer pursuant to
employer's directions.
SECTION FIVE: Employer shall provide PPO family health
insurance as well as dental insurance to employee with no
contribution required from employee.
SECTION SIX: Employer shall provide life insurance in the
amount of $2,000,,000.00 for the benefit of employee, and
shall also provide life insurance for employees spouse in
the amount of $500,000.00 for the benefit of employee.
SECTION SEVEN: Employer shall provide a company vehicle,
Lexus 400 LS, or the financial equivalent at employee's
option, to employee and provide all maintenance, insurance,
repair and fuel to said vehicle.
SECTION EIGHT: Employer shall provide three (3) weeks annual
paid vacation and two (2) weeks annual paid sick leave to
employee. In addition to vacation and sick days, the
employee shall have the following designated holidays: New
Year's Day, Birthday of Xxxxxx Xxxxxx Xxxx, Xx. , Lincoln's
Birthday, Washington's Birthday,, Good Friday,, Memorial
Day,, July 4th, Labor Day,, Election Day,, Columbus Day?
Veterans' Day, Thanksgiving Day and the following Friday,
and Christmas Day (Note: Should any of the above dates fall
on a Saturday or Sunday,, the following Monday shall be
deemed as a holiday). Employee may accumulate unused
vacation and sick time and convert same to cash on a 100%
salary basis at the end of any contract year,
SECTION NINE: Employer shall compensate employee as a
'Performance Bonus" of SIX (6%) PERCENT override of the
gross of all contracts obtained for the benefit of employer.
Said performance bonus to be paid in lump sum to employee.
In addition to the above compensation, in consideration of
the potential product development resulting from the highly
creativeness of employee, should employee produce and/or
develop a program or product that is successfully marketed
in an existing format (computer) and existing market
(Criminal Justice, Medical, Elder Abuse, OSHA, HazMat or
Education), employee shall receive as a bonus a five-year
stock option for 50,000 shares of Common @ $0.10 per share.
Should employee develop a program or product that is
successfully marketed in a new format and/or new market
area, employee shall receive as a bonus a five-year stock
option for 200,000 shares of Common @ $0.10 per share.
SECTION TEN: Employer shall be responsible for all tax
liability of employee as a result of compensation received
by employee pursuant to this agreement.
SECTION ELEVEN: Notwithstanding anything in this agreement
to the contrary, employer has the option to terminate this
agreement in the event that during its term employee shall
become permanently disabled as the term permanently disabled
is defined below. Such option shall be exercised by
employer giving notice to employee by registered mail, The
giving of such notice this agreement and the term of this
agreement come to an end on the last day of the month in
which the notice is mailed, with the same force and effect
as is that day were originally set forth as the termination
date, For the purposes of the agreement, employee shall be
deemed to have become permanently disabled if, during any
year of the term of this agreement, because of ill health,
physical or mental disability, or for other causes beyond
his control, he shall have been continuously unable or
unwilling or have failed to perform his duties under this
contract for 30 consecutive days, or if, during any year of
the term of this agreement, - he shall have been unable or
unwilling or have failed to perform his duties for a total
period of 60 days, either consecutive or not, For the
purposes of this agreement, the term "any year of the term
of this agreement" is defined to mean any period of 12
calendar months commencing on the first day of May and
terminating on the last day of April of the following year
during the term of this agreement.
SECTION TWELVE: Employee shall devote all his time,
attention, knowledge, and skill solely and exclusively to
the business and interest of employer, and employer shall be
entitled to all of the benefits, emoluments,, profits,, or
other issues arising from or incident to any and all work,
services, and advice of employee, and employee expressly
agrees that during the term of this agreement he will not be
interested, directly or indirectly, in any form, fashion, or
manner, as partner, officer, director, stockholder, advisor,
employee, or in any other form or capacity,, in any other
business similar to employer's business or any allied
trade; provide however, that nothing shall be deemed to
prevent or limit the right of employee to invest any of his
funds in the capital stock or other securities of any
corporation whose stock or securities are publicly owned or
are regularly traded on any public exchange., nor shall
anything be deemed to prevent employee from investing or
limit employee's right to invest his funds in real estate.
SECTION THIRTEEN: Employee further specifically agrees that
he will not at any time, in any manner, either directly or
indirectly, communicate to any person, form, or corporation
any information of any kind concerning any matters affecting
or relating to the business of employer, including, without
limiting the generality of the foregoing, the names of any
of its customers,, the prices it obtains or has obtained or
at which it sells or has sold its products,, or any other
information of, about, or concerning the business of
employer, its manner of operation, its plans, processes, or
other date of any kind, nature, or description without
regard to whether any or all of the foregoing matters would
be deemed confidential, material, or important, the parties
stipulating- that as between them, the matters are
important, material,, and confidential and gravely affect
the effective and successful conduct of the business of the
employer, and its goodwill,, and that any breach of the
terms of this paragraph is a material breach of this
agreement,
SECTION FOURTEEN: Anything contained in this agreement to
the contrary notwithstanding, it is understood and agreed
that employee shall not have the right to make any contracts
or commitments for or on behalf of employer without the
written consent of employer.
SECTION FIFTEEN: Employee,, recognized as co-founder and co-
owner of the company with Xxxx Xxxxxx, is granted a one (1)
year first right of refusal to purchase any and all issued
shares owned by Xxxx Xxxxxx upon the death of Xxxx Xxxxxx.
The price of the shares shall be the official public listed
price of said stock at the time of death of Xxxx Xxxxxx.
This section is personal in nature and may only be exercised
individually by Xxxx Xxxxxxxx.
SECTION SIXTEEN: This written agreement contains the sole
and entire agreement between the parties and shall supersede
any and all other agreements between the parties. The
parties acknowledge and agree that neither of them has made
any representation with respect to the subject matter of
this agreement or any representations inducing its execution
and delivery except such representations as are specifically
set forth in this writing and the parties acknowledge that
they have had the opportunity to have legal counsel of their
choice review this agreement prior to entering into the
same,
SECTION SEVENTEEN: It is agreed that no waiver or
modification of this agreement or of any covenant,
condition, or limitation contained in it shall be valid
unless it is in writing and duly executed by the party to be
charged with it, and that no evidence of any waiver or
modification shall be offered or received in evidence in any
proceeding, arbitration, or litigation between the parties
arising out of or affecting this agreement, or the rights or
obligations of any party under it, unless such waiver or
modification is in writing, duly executed as above. The
parties agree that the provisions of this paragraph may not
be waived except by a duly executed writing.
SECTION EIGHTEEN: The parties agree that it is their
intention and covenant that this agreement and performance
under it and all suits relating to it be construed in
accordance with and under and pursuant to the laws of the
State of Florida, with venue in Broward County,
SECTION NINETEEN: This agreement shall be binding on and
inure to the benefit of the respective parties and their
executors, administrators, heirs,, personal
representatives,, successors and assigns.
SECTION TWENTY: Severability, Should any portion of this
agreement be found to be unenforceable at law, the remaining
provisions of this agreement are to remain in full force and
effect.
NOTICE REQUIREMENTS SENT TO:
INTERNATIONAL TRAINING & EDUCATION CORP., 000 X. Xxxxxxx
Xxxxx Xxxx, Xxxxx 000 Xxxx Xxxxxxxxxx, XX 00000
XXXX X. XXXXXXXX
0000 XX 00 XXXXXX
XXXX XXXXXXXXXXX, XX. 00000
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and Xxxx X.
Xxxxxxxx (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Employment Agreement, dated October 3, 1996,
between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[180,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Employee/Director DigiMedia USA, Inc.
By By.
Dated: Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103620 180,000 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies Xxxx X.
Xxxxxxxx, or his
registered assigns ("Option Holder") ' is the registered
owner of the above indicated number of Options (hereinafter
referred to as the "Option") expiring on ("Expiration
Date"). One (1) Option entitles the Option Holder to
purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation
("Company"), at a purchase price of One Hundred (100%)
percent of the NASD closing bid price for over-the-counter
securities as of the date vested per share of Common Stock
("Exercise Price"), commencing on October 3, 1996 and
terminating on the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the exercise form
hereon duly completed and executed with payment of the
Exercise Price at the office of the Company being 0000 XX
00xx Xxxxxx, Xxxx Xxxxxxxxxx, XX. 00000, subject only to the
conditions set forth herein and in an Option Agreement dated
as of October 3, 1996 (the "Option Agreement") between the
Company and Employee. The Option Holder may exercise all or
any number of Options. Reference hereby is made to the
provisions on the following pages of this Option Certificate
and to the provisions of the Option Agreement, all of which
are incorporated by reference in and made a part of this
Option Certificate and shall for all purposes have the same
effect as though fully set forth at this place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
