Exhibit 99.2
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is between
Xxxx X. Xxxxxx (the "Grantee") and the other party named on the signature
page to this Agreement (the "Company"). Each of the Grantee and the Company
are also referred to in this agreement as the "Parties."
WHEREAS, the Board of Directors of the Company (the "Board of Directors")
has authorized the grant to the Grantee, for services to be rendered by the
Grantee as a consultant to the Company pursuant to the terms of a Consulting
Agreement (the "Consulting Agreement") between the Company and the Grantee,
of a non-qualified stock option (the "Option") to purchase 1,000,000 shares
of the Company's common stock (the "Common Stock") in accordance with the
terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the
Board of Directors, the Company hereby grants to the Grantee, in
consideration of consulting services to be performed for the benefit of the
Company pursuant to the Consulting Agreement, an option ("Option") to
purchase 1,000,000 common shares ("Option Shares") of Common Stock. The
exercise price shall be equal to 80% of the close price of the Company common
stock for the trading day immediately preceding the date of the exercise
notice as reported by Bloomberg Financial L.P. (based on a trading day from
9:30 am EST to 4:00 pm EST).
2. Term. The Option and this Agreement shall expire upon the earlier
of either (i) 18 months from the date of this Agreement or (ii) the date of
termination of the Consulting Agreement.
3. Shares Subject To Exercise. The Grantee may not exercise his right
to purchase more than 250,000 shares per calendar quarter without the prior
written consent of the Company.
4. Method and Time of Exercise. The Option may be exercised in whole
or from time to time in part by written notice (the "Exercise Notice')
delivered to the Company stating the number of Option Shares with respect to
which the Option is then being exercised, together with a check and/or a wire
transfer made payable to the Company in the amount equal to the Exercise
Price multiplied by the number of Option Shares then being issued pursuant to
the written notice of exercise, plus the amount of applicable federal, state
and local withholding taxes, provided, however, that such taxes may be
satisfied by the withholding of Option Shares then issuable upon the exercise
of the Option pursuant to paragraph 5 of this Agreement. Options may be
exercised at any time at the sole discretion of the Grantee. Only whole
shares shall be issued upon exercise of the Option.
5. Tax Withholding. As a condition to exercise of the Option, the
Company may require the Grantee to pay to the Company all applicable federal,
state and local taxes which the Company is required to withhold with respect
to the exercise of the Option or the Grantee is liable for filing and paying
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all of his own taxes.
6. Intentionally Deleted.
7. Transferability. The Option and this Agreement may not be assigned
or transferred except by will or by the laws of descent and distribution, and
with consent of the Company. During the life of the Grantee, the option
shall be exercisable only by the Grantee. More particularly ((but without
limiting the generality of the foregoing), the option may not be assigned,
transferred (except as provided above), pledged, or hypothecated in any way,
shall not be assignable by operation of law, and shall not be subject to
execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation, or other disposition of the option contrary
to the provisions hereof, and the levy of any execution, attachment, or
similar process upon the option, shall be null and void and without effect.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
shareholder with respect to the Option Shares issued form time to time upon
exercise of the Option until the earlier of: (1) the date of issuance of a
stock certificate or stock certificates to the Grantee applicable to the
Option Shares then issuable to the Grantee upon exercise of the Option and
(2) the date on which the Grantee or his nominee is recorded as owner of such
Option Shares on the Company's stock ledger by the Company's registrar and
transfer agent, which may be the Company. Except as set forth in paragraph
13 of this Agreement, no adjustment will be made for dividends or other
rights for which the record date is prior to the earlier of the events
described in clauses (1) and (2) of this paragraph.
9. Restrictions on Transfer. The Grantee represents and agrees that,
upon the Grantee's exercise of the Option in whole or in part, unless there
is in effect at that time under the Securities Act of 1933 a registration
statement relating to the Option Shares, the Grantee will acquire the Option
Shares for the purpose of investment and not with a view to their resale or
further distribution, and that upon such exercise hereof, the Grantee will
furnish to the Company a written statement to such effect, satisfactory to
the Company in form and substance.
10. Shares Qualified for Listing. Company represents that its Common
Stock is qualified for trading or quotation on a nationally recognized
securities exchange or stock quotation system, including, without the NASDAQ
Bulletin Board, and for trading with the California Department of
Corporations or such other applicable jurisdictions.
11. Registration Rights. As soon as possible following execution of
this Agreement, the Company shall, at the Company's expense, file with the
Securities and Exchange Commission ("SEC"), a registration statement
("Registration Statement") on Form S-8 or other comparable form, or if such
form is not then available, such other form of registration statement then
available, in such form as to comply with applicable federal and state laws
for the purpose of registering or qualifying the Option Shares for public
resale by the Grantee, and prepare and file with the appropriate state
securities regulatory authorities the documents reasonably necessary to
register or qualify the Option Shares, subject to the ability of the Company
to register or qualify the Option Shares under applicable state law.
12. Notices. All notices to the Company shall be addressed to the
Company at the principal office of the Company at the address and facsimile
number set forth on the signature page of this Agreement, and all notices to
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the Grantee shall be addressed to the Grantee at the address and facsimile
number of the Grantee set forth on the signature page of this Agreement or,
if different, the last address and facsimile number on file with the Company,
or to such other address and facsimile number as either may designate to the
other in writing. A notice shall be deemed to be duly given if and when
enclosed in a properly addressed sealed envelope deposited, postage prepaid
and followed by facsimile to the addressee. In lieu of giving notice by mail
as aforesaid, written notices under this Agreement may be given by personal
delivery to the Grantee or to the Company (as the case may be) by nationally
recognized courier or overnight delivery service.
13. Adjustments. If there is any change in the capitalization of the
Company after the date of this Agreement affecting in any manner the number
of kind of outstanding shares of Common Stock of the Company, whether by
stock dividend, stock split, reclassification or recapitalization of such
stock, or because the Company has merged or consolidated with one or more
other corporations (and provided the Option does not thereby terminate
pursuant to paragraph 14 of this Agreement), then the number and kind of
shares then subject to the Option and the exercise price to be paid for the
Option Shares shall be appropriately adjusted by the Board of Directors;
provided however, that in no event shall any such adjustment result in the
Company being required to sell or issue any fractional shares. Any such
adjustment shall be made without change in the aggregate exercise price
applicable to the unexercised portion of the Option, but with an appropriate
adjustment to the exercise price of each Option Share or other unit of
security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other
provision of this Agreement, in the event of the reorganization, merger or
consolidation of the Company with one or more corporations as a result of
which the Company is not the surviving corporation, or the sale of
substantially all the assets of the Company or of more than fifty percent
(50%) of the then outstanding stock of the Company to another corporation or
other entity in a single transaction, the Option grated hereunder shall
terminate, provided however, that not later than five (5) days before the
effective date of such merger or consolidation or sale of assets in which the
Company is not the surviving corporation, the surviving corporation may, but
shall not be so obligated to, tender to the Grantee an option to purchase a
number of shares of capital stock of the surviving corporation equal to the
number of Option Shares then issuable upon exercise of the Option, and such
new option or options for shares of the surviving corporation shall contain
such terms, conditions and provisions as shall be required substantially to
preserve the rights and benefits of the Option and this Agreement.
(a) Entire Agreement. This Agreement and the Consulting Agreement
contain the entire agreement between the Parties, and may not
be waived, amended, modified or supplemented except by
agreement in writing signed by the Party against whom
enforcement of any waiver, amendment, modification or
supplement is sought. Waiver of or failure to exercise any
rights provided by this Agreement and the Consulting Agreement
in any respect shall not be deemed a waiver of any further or
future rights.
15. Miscellaneous.
(a) Governing Law. This Agreement shall be construed under the
internal laws of the State of New York, and the Parties agree that the
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exclusive jurisdiction for any litigation or arbitration arising from
this Agreement shall be in New York City, N.Y.
(b) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but which
when taken together shall constitute one agreement.
(c) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s)
shall be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were excluded and shall be
enforceable in accordance with its terms.
(d) Right to Consulting Relationship. Nothing contained herein
shall confer upon the Grantee any right to be continued as a consultant
of the Company or interfere in any way the right of the Company to
terminate Grantee's consulting relationship at any time in accordance
with the Consulting Agreement.
(Signature Page Follows)
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of
the date set forth below.
Date: August 14, 2003 OPTIONEE:
____________________________________
Xxxx X. Xxxxxx
Address for Notices
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
COMPANY
____________________________________
By: _______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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