EXHIBIT - 10.14
Option Agreement dated July 30, 2001 between Xxxxxx Xxxxx and I.T.
Technology, Inc.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT
WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON A HOLDER HEREOF FIRST
HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE ISSUER, OR OTHER COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER, THAT THE PROPOSED DISPOSITION IS EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT.
OPTION
This OPTION (the "Option") is granted as of the 30th day of July, 2001
("Grant Date") by I.T. Technology, Inc., a Delaware corporation (the "Issuer"),
to Xxxxxx Xxxxx ("Holder").
RECITAL
In consideration for Holder's agreement to render services on behalf of the
Issuer pursuant to that certain Consulting Agreement between Xxxxx Consulting,
Inc. and the Issuer of even date herewith, the Issuer has agreed to issue to
Holder, Options, permitting the Holder purchase of seven Hundred and Fifty
Thousand (750,000) shares of the Common Stock of the Issuer (subject to
adjustment pursuant to Section 15 below) on the terms and conditions set forth
below (collectively, the "Option Shares").
AGREEMENT
NOW, THEREFORE, in consideration of these premises and the mutual covenants
and agreements hereinafter set forth, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Issuer and Holder agree as follows:
1. Grant of Option.
The Issuer hereby grants as of the date hereof to Holder the right and
option (the "Option"), upon the terms and subject to the conditions set forth in
this Option, to purchase the Option Shares, at a per share exercise price equal
to $0.10 per share (the "Exercise Price").
2. Term of Option.
The Option shall terminate and expire at 5:00 p.m., New York time, upon the
second (2th) anniversary of the Grant Date (the "Option Expiration Date").
3. Vesting of Option.
The Option shall fully vest and be exercisable as of the Grant Date (the
"Vesting Date"). The Holder agrees that notwithstanding anything to the contrary
contained elsewhere herein, no Option may be exercised unless and until any
then-applicable requirements of all state and federal securities laws shall have
been fully complied with to the reasonable satisfaction of the Issuer and its
counsel; provided, however, that the Issuer use its best efforts to comply with
the requirements of all such state and federal securities laws.
4. Exercise of Option.
There is no obligation to exercise the Option, but the Option may be
exercised in whole or in part at any time or from time to time on or prior to
the Option Expiration Date. A new Option shall be issued for the amount of
unexercised shares. The Option must be exercised by delivery to the Issuer of:
(a) written notice of exercise in substantially the form of Exhibit "A"
attached to this Option; and
(b) payment of the Exercise Price of the Option Shares pursuant to
Section 6.
Upon receipt of the foregoing, the Issuer shall promptly issue in the name
of the Holder one or more stock certificates evidencing the Option Shares issued
pursuant to such exercise and deliver such certificate(s) to the Holder in such
denominations as the Holder shall request.
5. Sale of Option Shares.
(a) Sale Restriction. The Holder hereby agrees that, notwithstanding
anything in this Option to the contrary, the Holder shall be entitled to sell,
subject to any restrictions on sale pursuant to federal securities laws,
including restrictions imposed by virtue of Rule 144 promulgated under the
Securities Act of 1933, as amended ("Rule 144"), state securities laws or
otherwise, from Option Shares issued to him pursuant to the exercise of Options,
no more than fifty percent (50%) of the Option Shares issued to him pursuant to
the exercise of Options during any twelve (12) month period. In addition to
this, the Holder shall not be entitled to sell any shares from Option Shares
issued to him pursuant to the exercise of Options during a twelve (12) month
period commencing from 30 days after quotations are first available for the
Common Stock.of the Issuer's securities. With the exception of any restrictions
on sale imposed pursuant to federal securities laws, including Rule 144, state
securities laws or otherwise, the restrictions set forth in this paragraph 5(a)
shall terminate on the third anniversary of the date upon which quotations are
first available for the Issuer's common stock on the Nasdaq Stock Market.
(b) Notice of Offer, Right of First Refusal. In addition to the limitations
set forth above, Holder agrees that upon receiving a bona fide offer by a third
party to purchase all or any of the Option Shares which the Holder is willing to
accept the Holder shall, not less than ten (10) business days prior to
consummating a sale pursuant to such offer, give notice thereof to the Issuer.
The notice shall specify:
(1) The number Option Shares proposed to be sold (the "Offered
Shares");
(2) The identity of the proposed buyer;
(3) The consideration to be received for the Offered Shares; and
(4) The terms and conditions upon which the Holder intends to make
the sale.
This notice shall be accompanied by a true and complete copy of the proposed
buyer's written offer. The Issuer shall have ten (10) business days to notify
the Holder of its acceptance of any Offer by the Holder to sell the Offered
Shares to the Issuer. The Issuer shall have the right to purchase all or a
portion of the Offered Shares at the price per Share and on the terms set forth
in the Offer, which it may exercise only by giving written notice thereof to the
Holder (the "Issuer's Acceptance"), during the ten (10) business day period
following the receipt of the Holder's notice. The Issuer's Acceptance shall
specify the number of the Offered Shares that the Issuer desires to purchase.
The Holder shall not participate in any vote that may be required in connection
with the Issuer's decision as to whether to exercise its right to purchase any
or all of the Offered Shares.
(c) Closing for Right of First Refusal Purchase. If the Issuer exercises
its right to purchase the Offered Shares, the closing of such purchase shall
take place on or before the thirtieth (30th) day following the date
that the Issuer, gave notice of the exercise of its right to purchase such
Shares. The Issuer shall give written notice to the Holder of the closing date
and the location of the closing for the purchase by Issuer, at least five (5)
days prior to such date.
(d) Transfer of Offered Shares to Third Party. Notwithstanding any other
provision in this Section, if and only if the Issuer either (i) does not
exercise its rights to purchase all or a portion of the Offered Shares in
accordance with the terms and conditions set forth in this Section or (ii) after
exercising such rights, the Issuer fails to consummate such purchases through no
fault of the Holder, then Holder may carry out its proposed sale to the proposed
buyer in accordance with the terms set forth in the Offer.
6. Delivery of Shares; Payment of Exercise Price.
Payment of the Exercise Price shall be made in United States currency by
wire transfer to an account designated by the Issuer or by cash or by delivery
of a certified check, bank draft or postal or express money order payable to the
order of the Issuer, or (ii) .
7. Restrictions on Option Shares.
Unless the Issuer has on file with the Securities and Exchange
Commission (the "SEC") an effective registration statement covering the reoffer
or resale of the Option Shares issued to the Holder, each certificate for Option
Shares issued upon the exercise of the Option, shall be stamped or otherwise
imprinted with a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THEY MAY NOT
BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED
EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH
RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY
UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF
COUNSEL TO THE ISSUER, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO
THE ISSUER, THAT THE PROPOSED DISPOSITION IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT.
8. Representations and Warranties of the Issuer.
The Issuer represents and Options that it has properly set aside and
reserved from its authorized but unissued shares of Common Stock, and will at
all times maintain as reserved, a number of shares equal to the Option Shares.
The Option Shares will, upon issuance, be duly authorized, validly issued, fully
paid and nonassessible and free from all preemptive rights of any shareholders
and free of all taxes, liens and charges with respect to the issuance thereof.
Except as expressly set forth in this Section 8, the Issuer has made no
representation, warranty, covenant or agreement regarding the Option, the shares
issuable in connection therewith or any other matter relating thereto, including
but not limited to whether or not the Issuer shall file a registration statement
with the SEC, if such a registration statement is filed, whether the SEC will
declare the registration Statement effective.
9. Reserve. The Issuer shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock, solely for the purpose of
maintaining a reserve equal to the number of Option Shares, and if at any time
the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the issuance of Common Stock upon exercise of the Option,
the Issuer shall promptly seek such corporate action as may, in the opinion of
its counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such purpose.
In the event of the consolidation or merger of the Issuer with another
corporation where the Issuer is not the surviving corporation, effective
provision shall be made in the Certificate or Articles of Incorporation,
documents of merger or consolidation, or otherwise, of the surviving corporation
so that such corporation will at all times reserve and keep available a
sufficient number of shares of Common Stock or other securities or property to
provide for the Option in accordance with the provisions of this Section 9.
10. No Rights as Stockholder.
Holder shall have no rights as a stockholder of the Issuer with respect to
the Option Shares until the date the exercise notice is received by the Issuer
together with payment (the "Exercise Date"). No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the Exercise Date.
11. Lost, Mutilated or Missing Option.
Upon receipt by the Issuer of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Option, and, in the case of loss,
theft or destruction, upon receipt of indemnification, or, in the case of
mutilation, upon surrender and cancellation of the mutilated Option, the Issuer
shall execute and deliver a new Option of like tenor and representing the right
to purchase the same aggregate number of Option Shares.
12. Taxes.
The Issuer shall pay all expenses, taxes and owner charges payable in
connection with the preparation, issuance and delivery of certificates for the
Option Shares and any new Options, except that if the certificates for the
Option Shares or the new Options are to be registered in a name or names other
than the name of the Option Holder, funds sufficient to pay all transfer taxes
payable as a result of such transfer shall be paid by the Option Holder at the
time of its delivery of the Notice of Exercise or promptly upon receipt of a
written request by the Issuer for payment
13. No Impairment.
The Issuer will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Issuer, but will at all times in good
faith assist in the carrying out of all the provisions of this Option and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment.
14. Adjustment.
(a) If outstanding shares of the Common Stock of the Issuer shall be
subdivided into a greater number of shares, or a dividend in Common Stock or
other securities of the Issuer convertible into or exchangeable for Common Stock
(in which latter event the number of shares of Common Stock issuable upon the
conversion or exchange of such securities shall be deemed to have been
distributed), shall be paid or distributed in respect to the Common Stock of the
Issuer, the number of Option Shares for which this Option may be exercised
immediately prior to such subdivision or at the record date of such dividend
shall, simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend or other distribution, be proportionately
increased, and conversely, if outstanding shares of the Common Stock of the
Issuer shall be combined into a smaller number of shares, the number of Option
Shares for which this Option may be exercised prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
decreased. Any adjustment to the Option Shares under this Section 14(a) shall
become effective at the close of business on the date the subdivision or
combination referred to herein becomes effective.
(b) In the event of any recapitalization, consolidation, merger or
reorganization ("Reorganization"), where the Issuer shall not be the surviving
entity the Holder of the Options shall at the sole discretion of the Issuer be
entitled to either (1) receive, and provision shall be made therefore in any
agreement relating to any such Reorganization, upon exercise of the Option the
kind and number of shares of Common Stock or other securities or property
(including cash) of the Issuer, which the Holder would have received in
connection with the Reorganization as the holder of the number of shares of
Common Stock into which the Option could have been exercised in full immediately
prior to such Reorganization; and in any such case appropriate adjustment shall
be made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the Holders, to the end that the
provisions set forth herein (including the specified changes and other
adjustments to the number of Option Shares) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares, to such other securities
or property thereafter receivable upon issuance of the Option Shares or (b) no
less than thirty (30) days prior notice of such Reorganization, during which
time the Holder may elect to exercise all Options which have then vested. All
other Options shall expire upon the consummation of the Reorganization . The
provisions of this Section 14(b) shall similarly apply to successive
Reorganizations. For purposes of this Section 14, the term "Reorganization"
shall include the acquisition of the Issuer by another entity by means of a
merger, consolidation or other reorganization.
(c) In addition to the adjustments to the number of Option Shares or
other property receivable upon exercise of the Options as provided in Sections
14(a) and (b) above, the Exercise price per Option Share shall be appropriately
adjusted so that the aggregate exercise price shall remain constant.
15. Certificate of Adjustment.
Within thirty (30) days following any event requiring an adjustment or
readjustment of the number of shares of Common Stock or other securities
issuable upon exercise of the Option, the Issuer, at its expense, shall cause a
nationally recognized firm of independent public accountants selected by the
Issuer to compute such adjustment or readjustment in accordance with this Option
and to prepare a certificate showing such adjustment or readjustment, and shall
mail such certificate, by first-class mail, postage prepaid, to the Holder at
the address set forth in Section 18(b). The certificate shall set forth such
adjustment or readjustment, showing in detail the facts upon which such
adjustment or readjustment is based.
16. Modification.
The Board or a committee thereof may modify, extend or renew the
Option or accept the surrender of, and authorize the grant of a new option or
Option in substitution for, the Option (to the extent not previously exercised).
No modification of the Option shall be made without the written consent of
Holder.
17. General Provisions.
(a) Further Assurances. Holder shall promptly take all actions
and execute all documents requested by the Issuer, which the Issuer deems to be
reasonably necessary to effectuate the terms and intent of this Option.
(b) Notices. All notices, requests, demands and other
communications under this Option shall be in writing and shall be given to the
parties hereto as follows:
If to the Issuer, to:
I.T. Technology, Inc.
00-00 Xxxx Xxxx
Xxxxxxx, Xxx 0000
Xxxxxxxxx, Xxxxxxxxx
If to Holder, to:
Xxxxxx Xxxxx
20H 240 86th
East NY 10028 NY
or at such other address or addresses as may have been furnished by either party
in writing to the other party hereto. Any such notice, request, demand or other
communication shall be effective (i) if given by mail, two days after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) Governing Law. THIS OPTION SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE IN, AND TO BE PERFORMED WITHIN, THAT STATE. JURISDICTION AND VENUE OVER ANY
LEGAL ACTION BROUGHT HEREUNDER SHALL RESIDE EXCLUSIVELY IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA. EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY SUCH LEGAL ACTIONS.
(d) Attorneys Fees. In the event that any action, suit or
arbitration or other proceeding is instituted upon any breach of this Option,
the prevailing party shall be paid by the other party thereto an amount equal to
all of the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in each and every such action, suit or proceeding
(including any and all appeals or petitions therefrom).
(e) Amendment; Waiver. This Option shall be binding upon and
inure to the benefit of the Holder and the Issuer and their respective
successors, heirs and personal representatives. No provision of this Option may
be amended or waived unless in writing signed by the Holder and the Issuer.
Waiver of any one provision of this Option shall not be deemed to be a waiver of
any other provision.
(f) Taxes. Holder agrees to be responsible for all federal, state
or local taxes arising out of or relating to Holder's grant or exercise of the
Option, including but not limited to any employer or employee withholding taxes
which may become due with respect thereto ("Taxes") and agrees to indemnify the
Issuer against any claims, losses, damages, charges or judgments or any kind
whatsoever relating to such Taxes.
IN WITNESS WHEREOF, the Issuer has caused this Option to be executed
as of the date first above written.
I.T. TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxx
AGREED TO AND ACCEPTED THIS
30th DAY OF JULY, 2001.
By: /s/ Xxxxxx Xxxxx
-------------------------
Xxxxxx Xxxxx
EXHIBIT "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: I.T. Technology, Inc.
The undersigned hereby irrevocably elects to exercise at $._______ per
share the purchase right represented by the Option granted to the undersigned on
July 30, 2001 and to purchase thereunder _______ shares (the "Acquired Shares")
of Common Stock of I.T. Technology, Inc., a Delaware corporation (the "Issuer")
for the aggregate sum of $___________. In connection therewith enclosed is a
check payable to the Isssuer in the sum of $___________ reflecting the full
exercise price for the Acquired Shares.
By:
------------------------------
XXXXXX XXXXX,
an individual
