SHARE OPTION AGREEMENT
AGREEMENT, made this 7th day of June, 1995, between UNIVEC INC., a New York
corporation (the "Corporation"), maintaining its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, and XXXXXXX X. XXXX
("Optionee"), an individual residing at 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000.
W I T N E S S H:
WHEREAS, Optionee desires to have the option to purchase certain shares of
the Corporation, and the Corporation is willing to grant said option, upon the
terms and conditions hereinafter set forth;
NOW, THEREFORE, for the sum of Fifty and 00/100 ($50.00) Dollars and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION
The Corporation hereby grants to the Optionee the option (the "Option") to
purchase at any time prior to the Expiration Date (defined below) 3.26 shares
(the "Shares") of the Corporation's common stock, no par value per share, which
on the date hereof represents, following exercise of the Option, three (3%)
percent of the issued and outstanding capital stock of the Corporation on a
fully diluted basis after giving effect to all options, warrants, convertible
debentures or other conversion or share purchase rights outstanding on the date
hereof. The Optionee may exercise this Option for the purpose of purchasing less
than the maximum number of Shares purchasable upon exercise of the Option. Such
purchase shall not affect the Optionee's ability to purchase the remaining
Shares purchasable upon exercise of the Option pursuant to the terms of this
Agreement. The number of Shares issuable upon exercise of this Option is subject
to adjustment as set forth in Section 6.
2. PURCHASE PRICE
The purchase price for all of the Shares shall be Two Hundred Twenty-Five
Thousand and 00/100 ($225,000.00) Dollars (initially $69,018.404 per Share). If
less than all of the Shares are purchased pursuant to the terms of this
Agreement, the purchase price shall be calculated by multiplying the stated
amount ($225,000.00) by a fraction, the numerator being the number of Shares
purchased and the denominator being the total number of Shares subject to the
Option. All amounts shall be payable in cash or by certified check delivered at
the Option Closing (as hereinafter defined).
3. EXERCISE OF OPTION
The Option shall be exercisable by the Optionee by irrevocable notice in
writing to the Corporation as set forth herein prior to the Expiration Date
(defined below). If the Optionee exercises the Option, the Fifty and 00/100
($50.00) Dollars paid to the Corporation shall be applied against the purchase
price to be paid. If the Optionee fails to exercise the Option, the Fifty and
00/100 ($50.00) Dollars shall belong to the Corporation absolutely and all
rights under this Agreement shall terminate without further notice.
4. DURATION
The Option shall continue in full force and effect until June 30, 1998
unless terminated sooner by the exercise of the Option by the Optionee (the
"Expiration Date").
5. OPTION CLOSING
Delivery of the Shares and payment of the purchase price shall take place
at the closing (the "Option Closing") to be held between ten (10) and thirty
(30) days after delivery
-2-
of the notice exercising the Option at the Optionee's address set forth above,
at the time and on the date specified in such notice of exercise.
6. ADJUSTMENTS
In the event of any change in the number of outstanding Shares of Common
Stock of the Corporation by reason of any stock dividend, stock split,
recapitalization, reclassification, combination, or exchange of Shares, the
number of Shares of Common Stock to be delivered upon exercise of the Option and
not issued prior to the record date for such event shall be adjusted so that the
Optionee shall receive upon exercise of the Option, that number of Shares of
Common Stock that the Optionee would have been entitled to receive had the
Option been exercised immediately prior to the record date for such event. In
the event of such an adjustment, the Option price per share shall be adjusted
accordingly, so that there will be no change in the aggregate purchase price
payable upon exercise of the Option.
7. ACKNOWLEDGEMENTS OF OPTIONEE, ETC.
7.1. No Voting Rights. This Agreement shall not itself entitle the Optionee
to any voting rights or other rights as a stockholder of the Corporation it
being understood that only upon delivery of Shares shall the Optionee be
entitled to be a holder of the underlying shares of Common Stock.
7.2. Investment Intent. The Optionee represents and warrants to the
Corporation that he is acquiring the Shares to be issued upon exercise of this
Option pursuant to this Agreement for his own account for investment only and
not with a present view to, or for sale in connection with, any distribution of
such Shares (as such term is defined in the Securities Act of 1933, as amended).
The Optionee further represents and warrants that (a) he
-3-
can afford to suffer the loss of his entire investment in the Shares; (b) by
reason of his business and financial experience and the business and financial
experience of those persons, if any, retained by him to advise him with respect
to his investment in such Shares; (c) the Optionee, together with such advisors,
has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks or acquiring such
Shares; and (d) the Optionee, together with such advisors, has had the
opportunity to ask such questions of the Corporation its officers and employees
and to obtain answers thereto as the Optionee and his advisors considers
necessary to evaluate the merits and risks of the prospective investment in the
Shares. The Optionee understands, acknowledges and agrees that he may not sell
or otherwise transfer the Shares of Common Stock issuable under this Agreement
without registration under the Securities Act of 1933, as amended, or an
exemption therefrom.
7.3. Legend and Registration. (a) The Optionee acknowledges and agrees that
the Shares to be issued pursuant to the exercise of the Option shall have
imprinted thereon the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS
OF ANOTHER STATE, AND MAY NOT BE SOLD OR TRANSFERRED (1) EXCEPT IN
COMPLIANCE WITH SUCH ACT OR SUCH LAWS AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER OR (2) UPON DELIVERY TO THE CORPORATION OF A LEGAL
OPINION OF COUNSEL TO THE HOLDER (WHICH COUNSEL SHALL BE REASONABLY
ACCEPTABLE TO THE CORPORATION) TO THE EFFECT THAT SUCH TRANSFER WILL NOT
REQUIRE REGISTRATION."
The certificates shall also have imprinted thereon any other legend that
may be required by applicable law.
(b) The Optionee further acknowledges and agrees that none of the Shares
has been
-4-
registered under any Federal or state securities laws, and, as a consequence
thereof, all of the Shares issued to the Optionee under this Agreement must be
held indefinitely unless (i) subsequently registered under applicable Federal
and state securities laws; or (ii) exemptions or transfer thereof. The
Corporation has no obligation to the Optionee and no present intention to file a
registration statement under either Federal or state law.
(c) The Optionee further acknowledges and agrees that it shall be a
condition precedent to any transfer of Shares prior to the registration under
the Securities Act of 1933, as amended that counsel for the Optionee (which
counsel shall be reasonably acceptable to the Corporation) shall have furnished
the Corporation with an opinion to the effect that such transfer will not
require registration because of the availability of an exemption under the
Securities Act of 1933, as amended, and applicable state securities laws.
8. REGISTRATION RIGHTS
The Corporation agrees that each time it proposes to file a registration
statement in connection with a public offering of its securities under the
Securities Act of 1933, it will promptly give written notice to the Optionee of
such intention and of the securities to be registered. Upon the written request
(a "Registration Request") of the Optionee made within twenty (20) days after
the giving of any such notice, to include in such registration and offering any
shares issued upon exercise of this Option ("Designated Securities") which the
Optionee requests to be included in the registration and offering, the
Corporation will at its expense cause all the Designated Securities set forth in
such notice to be included in such registration statement and offering. In
connection with the registration and offering of the Designated Securities, the
Corporation will as expeditiously as possible;
-5 -
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to the Designated Securities and use
its best efforts to cause such registration statement to become effective;
(b) furnish to the Optionee such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act of 1933, and such other documents as the Optionee may
reasonably request; and
(c) cause the Designated Securities to be listed on each securities
exchange on which securities of the same class issued by the Corporation
are then listed.
Nothing herein prevents the Corporation from abandoning a proposed
registration. If such offering is in connection with an underwritten offering,
the underwriter may limit the number of Designated Securities that may be
included in such offering, provided all other Selling Shareholders, if any, are
limited on a pro rata basis.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Corporation represents, warrants and covenants to the Optionee as
follows:
(a) The Corporation is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and has all requisite
corporate power and authority and is entitled to carry on its business as now
being conducted and to own, lease or operate its assets as and in the place
where such business is now conducted and its assets are now owned, leased or
operated.
(b) Neither the execution, delivery nor performance of this Agreement by
the Corporation or the Shareholders will with or without the giving of notice or
0the passage of time, or both, conflict with, result in a default, right to
accelerate or loss of rights under, or result in
-6-
the creation of any lien, charge or encumbrance pursuant to any provision of the
Corporation's Certificate of Incorporation or bylaws or any mortgage, deed of
trust, lease, license, agreement, understanding, instrument, law, rule or
regulation or any order, judgment or decree to which the Corporation is a party
or by which the Corporation, or any of its assets may be bound or affected. The
Corporation has the full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. All proceedings
required to be taken by the Corporation and its shareholders to authorize the
execution, delivery and performance of this Agreement have been properly taken
and this Agreement constitutes a valid and binding obligation of the Corporation
and the Shareholders.
(c) The presently authorized, issued and outstanding Shares of capital
stock of the Corporation and the names of the record and beneficial owners
thereof are as set forth in Schedule I hereto. Each of such persons is the
lawful record and beneficial owner of the number of Shares set forth opposite
his name. Except as set forth on Schedule I on the date hereof, there are no
outstanding subscriptions, options, warrants, calls, contracts, demands,
commitments, convertible securities or other agreements or arrangements of any
character or nature whatever under which the Corporation is or may become
obligated to issue, assign or transfer any Shares of its capital stock.
(d) There has been reserved, and the Corporation shall at all times keep
reserved, out of the authorized but unissued Shares of its common stock, a
number of shares sufficient to provide for the exercise of the Option.
(e) So long as the Option is in effect or the Optionee is a shareholder of
the Corporation, the Optionee (i) shall to the extent prepared by the Company
receive within ninety
-7-
(90) days after the end of each fiscal year financial statements for such fiscal
year certified by an independent certified public accounting firm of recognized
standing, (ii) shall to the extent prepared by the Company receive copies of all
quarterly financial reports and the Corporation's annual federal income tax
return prepared for or on behalf of the Corporation and (iii) shall have the
right from time to time upon reasonable notice to the Corporation to examine the
books and records of the Corporation provided the Optionee shall keep such
information confidential.
(f) The Corporation will not, by amendment of the Corporation's articles of
incorporation or through any reorganization, transfer or 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 Corporation, but will at all times in
good faith assist in the carrying out of all the provisions of this Agreement
and in the taking of all such action as may be necessary or appropriate in order
to protect the option, and other rights of the Optionee.
10. NOTICES
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally or mailed by registered or certified
mail, return receipt requested, to the addresses herein designated or to such
other addresses as may be designated by notice given to the addresses set forth
below by registered or certified mail:
If to Xxxxxxx Xxxx:
Xxxxxxx Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
-8-
with copies to:
Ruskin, Moscou, Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx Esq.
If to Univec, Inc.:
Univec Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx, President
with copies to:
Meltzer, Lippe, Goldstein, Wolf,
Xxxxxxxxx & Sazer, P.C.
The Chancery
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
11. GENERAL
(a) Choice of Law. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of New York without giving any effect
to the conflict of law principles thereof.
(b) Headings. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(c) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties in respect of the transactions contemplated hereby
and supersedes all prior agreements, arrangement and understanding relating to
the subject matter hereof.
(d) Benefit. All the terms, covenants, representations, warranties and
conditions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto
-9-
and their respective successors and assigns.
(e) Amendments. This Agreement may be amended, modified, superseded or
canceled, and any of the terms or conditions hereof may be waived, only by a
written instrument executed by all the parties hereto or, in the case of a
waiver, by the party waiving compliance.
(f) Waivers. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or the
breach of any term contained in this Agreement whether by conduct or otherwise,
in any one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach of any other term of this
Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-10-
SCHEDULE I
CAPITALIZATION AND SHARE OWNERSHIP
Shares: Authorized 200 no par shares
------
Outstanding:
Xxxxx Xxxxxxxxxx 32.5 shares
Xxxx Xxxx 32.5 shares
Xxxx Xxxxx 5 shares
Xxxxx Xxxxxxxx 25 shares
Xxxxxxx Xxxxxx 5 shares
---
100
Options/Subscriptions:
----------------------
Xxxx Xxxxx has subscribed for 3.2526 shares at $92,233.05 per share and has
an option to purchase 2.168 shares at $92,233.05 per share.
2
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written.
UNIVEC INC.
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxxxxx, President
XXXXXXX X. XXXX, P.C., PENSION
TRUST # 1
By: /S/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx, Trustee
