THE SECURITIES ISSUABLE UPON THE EXERCISE OF THIS OPTION HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ( THE "ACT"), OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
AND SUCH LAWS, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND
SUCH LAWS.
EXERCISABLE ON OR BEFORE
5:00 P.M, ARIZONA TIME,_____, 2001
OPTION TO PURCHASE SHARES
OF COMMON STOCK OF
XXXXXX OUTDOOR ADVERTISING &
TRAVEL CENTERS INCORPORATED
No._____
FOR VALUE RECEIVED, Xxxxxx Outdoor Advertising & Travel Centers
Incorporated, a corporation organized and existing under the laws of the State
of Nevada (the "Company"), promises to issue in the name of, and sell and
deliver to HD Xxxxx & Company (the "Holder"), a certificate or certificates for
an aggregate of ______ shares (the "Shares") of common stock, $.001 par value
per share, of the Company ("Common Stock"), upon surrender of this Option to
Purchase Shares (the "Option" or "Options") and payment therefor of the initial
exercise price, subject to adjustment in certain events (the "Exercise Price"),
of $ ______ per Share. Payment of the Exercise Price shall be made by cashier's
check or wire transfer payable to the Company. This Option shall be exercisable
at any time after _____________ , 1997 and prior to 5:00 P.M., Arizona time, on
_________ , 2001 (the "Exercise Period"), and shall be void thereafter.
The Shares are as described in the Company's Registration Statement
(No. 333-______) dated __________ , 1996 (the "Registration Statement").
1. TRANSFERABILITY AND FORM OF WARRANT.
a. Registration. The Options shall be registered in the name
of the Holder.
b. Transfer. The Options shall be transferable only on the
books of the Company maintained at its principal executive offices upon
surrender thereof for registration of transfer duly endorsed by the Holder or by
its duly authorized attorney or representative, or accompanied by proper
evidence of succession, assignment or authority to transfer. Upon any
registration of transfer, the Company shall execute and deliver a new Option or
Options in appropriate denominations to the person or persons entitled thereto.
c. Limitations on Transfer of the Options. Subject to the
provisions of Section 3, the Options shall not be sold, transferred, assigned or
hypothecated by the Holder until _________, 1997, except to (i) one or more
persons, each of whom on the date of transfer is an officer or partner of the
Holder or to other underwriters or selling group members, or officers or
partners thereof, participating in the Company's initial public offering of
Common Stock; (ii) a successor to the Holder in a merger or consolidation; (iii)
a purchaser of all or substantially all of the Holder's assets; or (iv) any
person receiving the Options from one or more of the persons listed in this
subsection 1(c) at such person's or persons' death pursuant to will, trust or
the laws of intestate succession. The Options may be divided or combined, upon
request to the Company by the Holder, into a certificate or certificates
representing the right to purchase the same aggregate number of Shares. Unless
the context indicates otherwise, the term "Holder" shall include any transferee
or transferees of the Options pursuant to this subsection 1(c), and the term
"Option" shall include any and all options outstanding pursuant to this
Agreement, including those evidenced by a certificate or certificates issued
upon division, exchange, substitution or transfer pursuant to this Agreement.
2. FORM OF OPTIONS. The form of election to purchase Shares shall be
substantially as set forth in Exhibit A attached hereto. The number of Shares
issuable upon exercise of the Options is subject to adjustment upon the
occurrence of certain events, all as hereinafter provided. The Options shall be
executed on behalf of the Company by its President or by a Vice President, and
attested to by its Secretary or an Assistant Secretary. An Option bearing the
signature of an individual who was at the time the proper officer of the Company
shall bind the Company, notwithstanding that such individual shall have ceased
to hold office prior to the delivery of such Option or did not hold such office
on the date of this Agreement. The Options shall be dated as of the date of
signature thereof by the Company either upon initial issuance or upon division,
exchange, substitution or transfer.
3. EXCHANGE OF OPTION CERTIFICATES. Any Option certificate may be
exchanged for another certificate or certificates of like tenor entitling the
Holder to purchase a like aggregate number of Shares as the certificate or
certificates surrendered then entitle such Holder to purchase. Any Holder
desiring to exchange an Option certificate shall make such request in writing
delivered to the Company, and shall surrender, properly endorsed, the
certificate evidencing the Options to be so exchanged. Thereupon, the Company
shall execute and deliver to the person entitled thereto a new Option
certificate as so requested.
4. LEGEND ON OPTIONS. This Option and all replacement Options shall
bear the following legend:
The securities issuable upon the exercise of this Option have
not been registered under the Securities Act of 1933, as
amended (the "Act"), or any state securities laws and may not
be sold, transferred, pledged or otherwise disposed of unless
pursuant to an effective registration statement under the Act
and such laws or pursuant to an exemption from registration
under the Act and such laws.
5. LEGEND ON SHARES. Each certificate for Shares initially issued upon
exercise of an Option, unless at the time of exercise such Shares are registered
under the Securities Act of 1933, as amended (the "Act"), shall bear the
following legends:
2
The Shares of Common Stock represented by this certificate
have not been registered under the Securities Act of 1933, as
amended ("Act"), or any state securities laws and may not be
sold, transferred, pledged or otherwise disposed of unless
pursuant to an effective registration statement under the Act
and such laws or pursuant to an exemption from registration
under the Act and such laws.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution pursuant to a registration statement under the
Securities Act of the securities represented thereby) shall also bear the above
legend unless the Company receives an opinion of counsel reasonably acceptable
to the Company that registration or qualification of the securities represented
thereby under the laws referred to therein is not required.
6. TERM OF OPTION; EXERCISE OF OPTION. Subject to the terms of this
Option, the Holder shall have the right, at any time on or before 5:00 p.m.,
Arizona time on ______________, 2001 (the "Expiration Time"), to purchase from
the Company up to the number of Shares which the Holder may at the time be
entitled to purchase pursuant to the terms of this Option, upon surrender to the
Company at its principal executive office, of the certificate evidencing this
Option to be exercised, together with the attached purchase form duly filled in
and signed, and upon payment to the Company of the applicable Exercise Price for
the number of Shares with respect to which such Option is then exercised.
Payment of the aggregate Exercise Price shall be made by cashier's check, wire
transfer or any combination thereof.
Subject to the terms of this Option, upon such surrender of
this Option and payment of the applicable Exercise Price and any applicable
taxes, the Company shall promptly issue and cause to be delivered to the Holder
or to such person or persons as the Holder may designate in writing (subject to
applicable securities laws), a certificate or certificates (in such name or
names as the Holder may designate in writing) for the number of duly authorized,
fully paid and non-assessable whole Shares so purchased upon the exercise of
this Option, and shall deliver to the Holder Common Stock or cash, to the extent
provided in Section 12 hereof, with respect to any fractional Shares otherwise
issuable upon such surrender. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of such Shares as of the close of business on the
date of the surrender of this Option and payment of the Exercise Price,
notwithstanding that the certificates representing such Shares shall not
actually have been delivered or that the Share and Options transfer books of the
Company shall then be closed. This Option shall be exercisable, at the election
of the Holder, either in full or from time to time in part and, in the event
that any certificate evidencing this Option (or any portion thereof) is
exercised prior to the Expiration Time with respect to less than all of the
Shares specified therein at any time prior to the Expiration Time, a new
certificate of like tenor evidencing the remaining portion of this Option shall
be issued by the Company.
Each person in whose name any certificate for shares of Common
Stock shall be issued shall for all purposes be deemed to have become the holder
of record of the Common Stock represented thereby on the date on which the
Option was surrendered and payment of the purchase price and any applicable
taxes was made, irrespective of the date of issue or delivery of such
certificate. The Company shall not close such Share transfer books at any one
time for a period longer than seven days.
3
7. PAYMENT OF TAXES. The Company shall pay all transfer, documentary
stamp and similar taxes, if any, attributable to the initial issuance of the
Shares; provided, however, that the Company shall not be required to pay any tax
or taxes which may be payable, (i) with respect to any secondary transfer of
this Option or the Shares or (ii) as a result of the issuance of the Shares to
any person other than the Holder, and the Company shall not be required to issue
or deliver any certificate for any Shares unless and until the person requesting
the issuance thereof shall have paid to the Company the amount of such tax or
shall have produced evidence that such tax has been paid to the appropriate
taxing authority.
8. LOST, MUTILATED OR MISSING OPTION. In case the certificate or
certificates evidencing this Option shall be mutilated, lost, stolen or
destroyed, the Company shall, at the request of the Holder, issue and deliver in
exchange and substitution for and upon cancellation of the mutilated certificate
or certificates, or in lieu of and substitution for the certificate or
certificates lost, stolen or destroyed, a new Option certificate or certificates
of like tenor and representing an equivalent right or interest, but only upon
receipt of evidence reasonably satisfactory to the Company of such loss, theft
or destruction of such Option and, if requested by the Company, a bond of
indemnity, reasonably satisfactory to the Company in form and amount, and issued
at Holder's cost. Holder shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company may prescribe.
9. RESERVATION OF SHARES. The Company has reserved, and shall at all
times so long as this Option remains outstanding, keep reserved, out of its
authorized and unissued capital stock, such number of shares of Common Stock as
shall be subject to purchase under this Option. As a condition precedent to the
taking of any action that would result in the effective purchase price per share
of Common Stock upon the exercise of this Option being less than the par value
per share (if such shares of Common Stock then have a par value), the Company
will take such corporate action as may, in the opinion of its counsel, be
necessary in order that the Company may comply with all of its obligations under
this Agreement with regard to the exercise of this Option.
All shares of Common Stock issued upon exercise of this option
in accordance with the terms of this Option shall be validly authorized and
issued, fully paid and nonassessable, and the Company shall pay all transfer,
documentary stamp and similar taxes in respect of the issue thereof.
10. EXERCISE PRICE. The Exercise Price at which Shares shall be
purchasable upon the exercise of this Option shall be $_____ per Share [120% of
the Initial Public Offering Price]. The Exercise Price is subject to adjustment
pursuant to Section 11 hereof.
11. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and
kind of securities purchasable upon the exercise of this Option and the Exercise
Price shall be subject to adjustment from time to time after the date hereof
upon the happening of certain events, as follows:
a. Adjustments. The number of Shares purchasable upon the
exercise of this Option shall be subject to adjustment as follows:
(i) In case the Company shall (i) pay a dividend on Common
Stock in Common Stock or securities convertible into, exchangeable for or
otherwise entitling a holder thereof to receive Common Stock, (ii) declare a
dividend payable in cash on its Common Stock and at substantially the
4
same time offer its shareholders a right to purchase new Common Stock (or
securities convertible into, exchangeable for or other entitling a holder
thereof to receive Common Stock) from the proceeds of such dividend (all Common
Stock so issued shall be deemed to have been issued as a stock dividend), (iii)
subdivide its outstanding shares of Common Stock into a greater number of shares
of Common Stock, (iv) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or (v) issue by reclassification of
its Common Stock any shares of Common Stock of the Company, the number of shares
of Common Stock issuable upon exercise of the Options immediately prior thereto
shall be adjusted so that the holders of the Options shall be entitled to
receive after the happening of any of the events described above that number and
kind of shares as the holders would have received had such Options been
exercised immediately prior to the happening of such event or any record date
with respect thereto. Any adjustment made pursuant to this subdivision shall
become effective immediately after the close of business on the record date in
the case of a stock dividend and shall become effective immediately after the
close of business on the effective date in the case of a stock split,
subdivision, combination or reclassification.
(ii) In case the Company shall distribute, without receiving
consideration therefor, to all holders of its Common Stock evidences of its
indebtedness, securities other than Common Stock, rights or warrants to
subscribe for securities of the Company or property or assets (including cash),
then in such case, the number of shares of Common Stock thereafter issuable upon
exercise of the Options shall be determined by multiplying the number of shares
of Common Stock theretofore issuable upon exercise of the Options, by a
fraction, of which the numerator shall be the closing bid price if publicly
traded (or fair market value as reasonably determined by the Board of Directors
of the Company, as the case may be) per share of Common Stock on the record date
for such distribution, and of which the denominator shall be the closing bid
price of the Common Stock less the then fair value (as reasonably determined by
the Board of Directors of the Company, whose determination shall be conclusive)
of the portion of the assets, securities or evidences of indebtedness so
distributed per share of Common Stock. Such adjustment shall be made whenever
any such distribution is made and shall become effective immediately after the
record date for the determination of stockholders entitled to receive such
distribution.
(iii) Any adjustment in the number of shares of Common Stock
issuable hereunder otherwise required to be made by this Section 11 will not
have to be made if such adjustment would not require an increase or decrease of
one percent (1%) or more in the number of shares of Common Stock issuable upon
exercise of the Option, and when the cumulative net effect of more than one
adjustment shall be to increase or decrease by one percent (1%) or more the
number of shares of Common Stock issuable upon exercise of the Option, such
adjustment in the number of shares of Common Stock issuable hereunder shall
thereupon be given effect.
(iv) Whenever the number of shares of Common Stock issuable
upon the exercise of the Options is adjusted, as herein provided, the Exercise
Price shall be adjusted (to the nearest cent) by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of shares of Common Stock issuable upon the exercise of an Option
immediately prior to such adjustment, and of which the denominator shall be the
number of shares of Common Stock issuable immediately thereafter.
(v) The Company from time to time by action of its Board of
Directors may decrease the Exercise Price by any amount for any period of time
if the period is at least 20 days, the decrease is irrevocable during the period
and the Board of Directors of the Company in its sole
5
discretion shall have made a determination that such decrease would be in the
best interests of the Company, which determination shall be conclusive. Whenever
the Exercise Price is decreased pursuant to the preceding sentence, the Company
shall mail to holders of record of the Options a notice of the decrease at least
15 days prior to the date the decreased Exercise Price takes effect, and such
notice shall state the decreased Exercise Price and the period it will be in
effect.
b. Mergers, Etc.. In the case of any (i) consolidation or
merger of the Company into any entity (other than a consolidation or merger that
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), (ii) sale, transfer, lease
or conveyance of all or substantially all of the assets of the Company as an
entirety or substantially as an entirety, or (iii) reclassification, capital
reorganization or change of the Common Stock (other than solely a change in par
value, or from par value to no par value), in each case as a result of which
shares of Common Stock shall be converted into the right to receive stock,
securities or other property (including cash or any combination thereof), each
holder of Options then outstanding shall have the right thereafter to exercise
such Option only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale, transfer, capital
reorganization or reclassification by a holder of the number of shares of Common
Stock of the Company for which such Options could have been exercised
immediately prior to such consolidation, merger, sale, transfer, capital
reorganization or reclassification, assuming such holder of Common Stock of the
Company (A) is not an entity with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent entity"), or an affiliate of
a constituent entity, and (B) failed to exercise his or her rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of Common
Stock of the Company held immediately prior to such consolidation, merger, sale
or transfer by other than a constituent entity or an affiliate thereof and in
respect of which such rights or election shall not have been exercised
("non-electing share"), then for the purpose of this Section 11(b) the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). If necessary, appropriate adjustment shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the holders of Options, to the end that the provisions
set forth herein shall thereafter correspondingly be made applicable, as nearly
as may reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the exercise of the shares. The above
provisions shall similarly apply to successive consolidations, mergers, sales,
transfers, capital reorganizations and reclassifications. The Company shall not
effect any such consolidation, merger, sale or transfer unless prior to or
simultaneously with the consummation thereof the successor company or entity (if
other than the Company) resulting from such consolidation, merger, sale or
transfer shall assume, by written instrument, the obligation to deliver to the
holders of Options such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to receive under this
Section 11(b).
c. Notice. Upon the happening of any event requiring an
adjustment of the Option purchase price hereunder, the Company shall forthwith
give written notice thereof to the registered Holder of each Option, stating the
adjusted Exercise Price and the adjusted number of shares of Common Stock
purchasable upon the exercise thereof resulting from such event, and setting
forth in reasonable detail the method of calculation.
6
d. Statement on Option. Irrespective of any adjustments in the
Exercise Price or the number or kind of shares purchasable upon the exercise of
this Option, this Option certificate or certificates hereafter issued may
continue to express the same price and number and kind of shares as are stated
in this Option.
12. FRACTIONAL SHARES. Any fractional shares of Common Stock issuable
upon exercise of the Options shall be rounded to the nearest whole share or, at
the election of the Company, the Company shall pay the holder thereof an amount
in cash equal to the closing bid price if publicly traded (or fair market value
as reasonably determined by the Board of Directors, as the case may be) of the
fraction thereof. Whether or not fractional shares are issuable upon exercise
shall be determined on the basis of the total number of Options the holder is at
the time exercising and the number of shares of Common Stock issuable upon such
exercise.
13. NO RIGHTS AS STOCKHOLDER; NOTICES TO HOLDER. Nothing contained in
this Option shall be construed as conferring upon the Holder or its transferees
any rights as a stockholder of the Company, including the right to vote, receive
dividends, consent or receive notices as a stockholder with respect to any
meeting of stockholders for the election of directors of the Company or any
other matter. If, however, at any time prior to the expiration of the Exercise
Period and prior to the exercise of this Option, any of the following events
shall occur:
(a) any action which would require an adjustment pursuant to
Section 11(a); or
(b) a dissolution, liquidation or winding up of the Company or
any consolidation, merger or sale of its property, assets and business as an
entirety or substantially as an entirety;
then in any one or more of said events, the Company shall give notice in writing
of such event to the Holder at least 10 days prior to the date fixed as a record
date or the date of closing the transfer books for the determination of the
shareholders entitled to any relevant dividend, distribution, subscription
rights or other rights or for the effective date of any dissolution, liquidation
or winding up or any merger, consolidation, or sale of all or substantially all
assets, but failure to mail or receive such notice or any defect therein or in
the mailing thereof shall not affect the validity of any such action taken. Such
notice shall specify such record date or the effective date, as the case may be.
14. REGISTRATION RIGHTS
(a) Piggyback Registration. Whenever during the seven-year
period commencing on __________, 1996 and ending on __________ 2003, the Company
proposes to file with the Securities and Exchange Commission (the "Commission")
on behalf of the Company or any other stockholder a registration statement under
the Act, with respect to any equity security (as defined in Section 3(a)(10) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")), other
than a registration statement approved by the Board of Directors on Form S-4 or
S-8, or such amended or alternative form for Form S-4 or S-8 as the Commission
may from time to time require, the Company shall in each case no less than
twenty (20) days prior to filing notify Holder and include in such Registration
Statement any or all of the Shares as Holder may request within fifteen (15)
days after the Company's giving of such notice, subject to the conditions set
forth herein; provided that if the underwriter (if any) managing the offering
determines that, because of marketing factors, all of the Shares requested to be
registered by the Holder may not be included in the offering, then the Holder
shall participate in the registration pro rata based on the number of Shares
which Holder has requested to be so registered.
(b) Demand Registration. In addition to the rights set forth
in subsection 13(a) hereof, during the period commencing on __________ , 1997
and ending on __________ 2001, the Company shall,
7
within 60 days after written request (the "Request") of the Holder, or by a
person or persons holding (or having the right to acquire by virtue of holding
the Option) at least 50% of the shares of Common Stock which have been (or may
be) issued upon exercise of the Option, prepare and file at its own expense a
Registration Statement with the Commission and appropriate Blue Sky authorities
sufficient to permit the public offering of the Shares; provided, however, that
the Company shall only be obligated to file two such Registration Statements
under this subsection 14(b).
(c) Registration Procedures. If, pursuant to subsections 14(a)
or 14(b) hereof, the Company is required to include any Shares in a registration
statement proposed to be filed, the Company will within 60 days: (i) prepare and
file such registration statement under the Act on an appropriate form and use
its best efforts to cause such registration statement to become effective; (ii)
prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Act and the Exchange Act with
respect to the offer of the securities covered by such registration statement
during the period required for distribution of such securities; (iii) furnish to
the holder of such Shares such number of copies of such registration statement
and all amendments thereto and of such prospectus (including each preliminary,
amended or supplemental prospectus) as such holders may reasonably request in
order to facilitate the sale or transfer of the securities covered by such
registration statement; (iv) use its best efforts to register or qualify the
securities covered by any such registration statement in such jurisdictions as
such holders may reasonably request; (v) use its best efforts to furnish, at the
request of Holder, on the date that such Shares are delivered to the
underwriters for sale pursuant to such registration or, if such Shares are not
being sold through underwriters, on the date such registration statement becomes
effective, (1) an opinion, dated such date, in a form customary to such
transactions, of the independent counsel representing the Company for the
purposes of such registration, addressed to the underwriters, if any, and to
Holder making such request, reasonably acceptable in form and substance to such
underwriter and Holder and (2) a letter, dated such date, from the independent
certified public accountants of the Company, in a form customary to such
transactions, addressed to the underwriters, if any, and Holder, stating that
they are independent certified public accountants within the meaning of the Act
and that in the opinion of such accountants, the financial statements and other
financial data of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereto (including, in each case,
documents incorporated by reference thereto), comply as to form in all material
respects with the applicable accounting requirements of the Act; such opinion of
counsel shall additionally cover such other legal matters with respect to the
registration statement and the Company as the underwriters, if any, or Holder
may reasonably request; and such letter from the independent certified public
accountants shall additionally cover such other financial matters (including
information as to the period ending not more than five (5) business days prior
to the date of such letter) with respect to the registration statement and the
Company as the underwriters, if any, or Holder may reasonably request; (vi) use
its best efforts to keep such registration and qualification effective until all
exercises, sales and distributions contemplated by the requests made pursuant to
subsection 14(a) and 14(b) hereof shall have been completed, but not in any
event for a period in excess of nine (9) months unless the Company is eligible
to use Form S-3 or an equivalent form; and (vii) pay all expenses incurred by
Holder and the Company in complying with this subsection 11(c) (other than fees
and disbursements of counsel for Holder and any underwriting discounts or
commissions applicable to the Shares sold by the Holder), including without
limitation (1) all registration and filing fees; (2) all printing expenses; (3)
all fees and disbursements of counsel and independent public accountants for the
Company; (4) all Blue Sky fees and expenses (including fees and expenses of
counsel in connection with Blue Sky qualifications and surveys); and (5) the
entire expense of any special audits incident to or required by any such
registration. The foregoing notwithstanding, Holder shall be responsible for any
of the
8
foregoing expenses incurred in connection with Xxxxxx's second demand for a
registration pursuant to subsection 14(b). In connection with any registration
by the Company pursuant to subsections 14(a) or 14(b) hereof, Xxxxxx agrees to
(i) execute such underwriting agreements and related documents as reasonably
requested by the Company or the managing underwriter, if any, and (ii) provide
such information as is necessary to be included in the registration statement.
15. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless Holder,
the directors and officers of Holder and each person, if any, who controls
(within the meaning of the Act), Holder (a "Control Person") against any losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act or any other statute or common law or
otherwise, and to reimburse them, from time to time upon request, for any legal
or other expenses reasonably incurred by them in connection with investigating
any claims and defending any actions, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any preliminary or final registration statement or prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any case to the extent that any such loss,
claim, damages or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
preliminary or final registration statement or prospectus or such amendment or
supplement thereto (1) in reliance and in conformity with written information by
or on behalf of Holder specifically for use in the preparation thereof, or (2)
in any preliminary prospectus to the extent that any such loss, claim, damage or
liability results from the fact that securities covered thereby were sold to a
person to whom there was not sent or given prior to the written confirmation of
such sale a copy of the prospectus in the form filed with the Commission
pursuant to Rule 424(b) which corrected any such misstatement or omission if
sufficient copies of such prospectus had theretofore been delivered to Holder.
(b) In the case of each offering registered pursuant to
Section 14, Xxxxxx will indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls (within the meaning
of the Act) the Company to the same extent as set forth in Section 15(a) but
only if such statement or omission was made in reliance upon and in conformity
with written information furnished by or on behalf of Holder for use in the
preparation of such preliminary or final registration statement or prospectus or
such amendment or supplement thereto, provided, however, that the obligation of
any Holder to indemnify the Company under the provisions of this paragraph 15(b)
shall be limited to the amount received by the Holder upon the sale to the
public of the Shares;
(c) Each party indemnified under this Section 14 shall,
promptly after receipt of notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought hereunder, notify
the indemnifying party of the commencement thereof. The omission so to notify
the indemnifying party shall not relieve the indemnifying party from any
liability which it may have to any indemnified party under this Section 14
unless the indemnifying party was prejudiced by such omission, and in no event
shall relieve the indemnifying party from any liability to the indemnified party
which the indemnifying party may otherwise have.
(d) In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may wish, jointly with any other indemnifying party
9
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party hereunder for any legal or other expense subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation (unless such indemnified party reasonably
objects to such assumption on the grounds that there may be defenses available
to it which are different from or in addition to the defenses available to such
indemnifying party, in which event the indemnified party shall be reimbursed by
the indemnifying party for the expenses incurred in connection with retaining
separate legal counsel). An indemnifying party shall not be liable for any
settlement of an action or claim effected without its consent, unless its
consent is unreasonably withheld.
(e) If recovery is not available under the foregoing
indemnification provisions for any reason or reasons other than as specified
therein, any party entitled to indemnification by the terms thereof shall
nevertheless be entitled to contribution with respect to any losses, claims,
damages, liabilities or expenses with respect to which it would be entitled to
such indemnification but for such reason or reasons. In determining the amount
of contribution to which the respective parties are entitled, there shall be
considered the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. Holder and the Company agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capital allocation.
16. COVENANTS OF THE COMPANY. The Company hereby covenants and agrees
that prior to the expiration of this Option by exercise or by its term:
(a) The Company will not by amendment of its Articles of
Incorporation or through reorganization, consolidation, merger, dissolution, or
sale of assets, or by any other act or omission, avoid or seek to avoid the
observance or performance of any of the covenants, stipulations or conditions to
be observed or performed hereunder by the Company, but will at all times in good
faith take such action as may be necessary or appropriate to carry out the
provisions of this Option and to protect the rights of the Holder hereunder;
(b) The Company shall at all times reserve and keep available,
out of its authorized and unissued capital stock, solely for the purpose of
providing for the exercise, forthwith upon the request of the Holder of the
Option then outstanding and in effect, such number of shares of Common Stock as
shall, from time to time, be sufficient for the exercise of the Option. The
Company shall, from time to time, in accordance with the laws of the State of
Nevada, increase the authorized amount of its capital stock, if at any time the
number of shares of Common Stock remaining unissued and unreserved for other
purposes shall not be sufficient to permit the exercise of the Options then
outstanding and in effect;
(c) The Company represents, warrants, covenants and agrees
that all Shares that may be issued upon the exercise of the rights represented
by this Option will, upon issuance, be validly issued, fully paid and
non-assessable, and free from all taxes, liens and charges with respect to the
issue thereof (other than taxes in respect of any transfer contemporaneously
with such issue).
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17. MAILING OF NOTICES, etc. All notices and other communications from
the Company to the Holder of this Option shall be mailed by first-class
registered or certified mail, return receipt requested, postage prepaid, to the
Holder, at the address set forth in the records of the Company, or to such other
address furnished to the Company in writing from time to time by the Holder of
this Option. All notices from the Holder of this Option to the Company shall be
mailed to the Company at 000 Xxxxxxxxx X.X., Xxxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: President.
18. GOVERNING LAW. This Option will be deemed to have been made and
delivered in Phoenix, Arizona, and will be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
laws of the State of Arizona. Assuming the parties are not able to resolve
disputes arising under this Option, the Company (a) agrees that any legal suit,
action or proceeding arising out of or relating to this Option will be
instituted exclusively in the United States District Court for the State of
Arizona; (b) waives any objection which the Company may have now or hereafter to
the venue of any such suit, action or proceeding, and (c) irrevocably consents
to the jurisdiction of the United States District Court for the State of Arizona
in any such suit, action or proceeding. The Company further agrees to accept and
acknowledge service of any and all process which may be served in any such suit,
action or proceeding in the United States District Court for the State of
Arizona and agrees that service of process upon the Company mailed by certified
mail to the Company's address will be deemed in every respect effective service
of process upon the Company in any suit, action or proceeding.
19. ENTIRE AGREEMENT AND MODIFICATION. The Company and the Holder of
this Option hereby represent and warrant that this Option is intended to and
does contain and embody all of the understandings and agreements, both written
and oral, of the parties hereto with respect to the subject matter of this
Option, and that there exists no oral agreement or understanding, express or
implied, whereby the absolute, final and unconditional character and nature of
this Option shall be in any way invalidated, empowered or affected. A
modification or waiver of any of the terms, conditions or provisions of this
Option shall be effective only if made in writing and executed with the same
formality as this Option.
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IN WITNESS WHEREOF, the Company, by its duly authorized officer, has
executed this Option on this ______ day of ____________, 1996.
ATTEST: XXXXXX OUTDOOR ADVERTISING & TRAVEL
CENTERS INCORPORATED, a Nevada corporation
___________________________ By: _____________________________________
Secretary Xxxxxxx X. Xxxxxx
Its: President
(CORPORATE SEAL)
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EXHIBIT A
---------
FORM OF EXERCISE
The undersigned hereby irrevocably elects to exercise the purchase
rights represented by this Option for, and to purchase thereunder, ________
Shares of Common Stock of Xxxxxx Outdoor Advertising & Travel Centers
Incorporated, a Nevada corporation, and herewith tenders in payment for such
securities a cashier's check or wire transfer payable to the order of Xxxxxx
Outdoor Advertising & Travel Centers Incorporated in the amount of $___________
all in accordance with the terms hereof. The undersigned requests that a
certificate for such Shares be issued in the name of and delivered to:
------------------------------------------------------------------
(Print Name)
------------------------------------------------------------------
(Address)
------------------------------------------------------------------
(Taxpayer Identification Number)
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee) This Option to purchase __________
Shares of Common Stock of Xxxxxx Outdoor Advertising & Travel Centers
Incorporated, a Nevada corporation (the "Company"), together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
_________________________ attorney, to transfer the Option on the books of the
Company, with full power of substitution in the premises.
Dated:________________________ ______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Option)
