EXHIBIT 99.13
EXCEPT AS PERMITTED BY SECTION 8 HEREOF, NO TRANSFER SHALL BE MADE AT
ANY TIME UNLESS THE COMPANY SHALL HAVE BEEN SUPPLIED WITH EVIDENCE
REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT IN VIOLATION OF
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT").
VITAFORT INTERNATIONAL CORPORATION
______________________
OPTION TO PURCHASE
SHARES OF COMMON STOCK
AS HEREIN DESCRIBED
DATED: AS OF JANUARY 6, 1995
THIS CERTIFIES THAT, FOR VALUE RECEIVED
NAME: Xxxxxxx Xxxxxxxx
ADDRESS: 000 Xxxxx XxXxxxx Xxxxx, #0000
Xxxxxxx, XX
00000
or registered assigns (the "Holder") are entitled, subject to the terms set
forth herein and in the Consulting Contract, as amended in January 1996
(incorporated by reference), to purchase from Vitafort International Corporation
(the "Company"), a Delaware corporation, having its offices at Suite 000, 0000
Xxxxxx xx xxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, up to TWO MILLION ONE
HUNDRED FIFTEEN Thousand (2,115,000) shares of the Company's common stock
subject to adjustment as set forth herein.
1. As used herein:
(a) "Common Stock" or "Common Shares" shall initially refer to the
Company's common stock including Underlying Securities, as more
fully set forth in Section 5 hereof.
(b) "Option Price" or "Common Share Price" shall be "EXERCISE PRICE"
Cents ($.15) per share.
(c) "Underlying Securities" or "Underlying Shares"or "Underlying Stock"
shall refer to the Common Shares or other securities or property
issuable or issued upon exercise of this Option.
(d) The options vest based upon mutual agreement based upon assigned
projects and approved time & expenses.
- 1 -
2. (a) The purchase rights represented by this Option may be exercised by the
Holder hereof, in whole or in part (but not as to less than a whole
Common Share), at any time, and from time to time, during the period
commencing this date, until JUNE 30, 1997 (the "Expiration Date"),
by the presentation of this Option, with the purchase form attached
duly executed, at the Company's office (or such office or agency of
the Company as it may designate in writing to the Holder hereof by
notice pursuant to Section 14 hereof), specifying the number of
Common Shares as to which the Option is being exercised, and upon
payment by the Holder to the Company in cash or by certified check
or bank draft, in an amount equal to the Option Price times the
number of Common Shares then being purchased hereunder.
(b) The Company agrees that the Holder hereof shall be deemed the record
owner of such Underlying Securities as of the close of business on
the date on which this Option shall have been presented and payment
made for such Underlying Securities as aforesaid. Certificates for
the Underlying Securities so obtained shall be delivered to the
Holder hereof within a reasonable time, not exceeding seven (7)
days, after the rights represented by this Option shall have been so
exercised. If this Option shall be exercised in part only or
transferred in part subject to the provisions herein, the Company
shall, upon surrender of this Option for cancellation or partial
transfer, deliver a new Option evidencing the rights of the Holder
hereof to purchase the balance of the Underlying Shares which such
Holder is entitled to purchase hereunder. Exercise in full of the
rights represented by this Option shall not extinguish the rights
granted under Section 9 hereof.
3. Subject to the provisions of Section 8 hereof, (i) this Option is
exchangeable at the option of the Holder at the aforesaid office of the
Company for other Options of different denominations entitling the Holder
thereof to purchase in the aggregate the same number of Common Shares as are
purchasable hereunder; and (ii) this Option may be divided or combined with
other Options which carry the same rights, in either case, upon presentation
hereof at the aforesaid office of the Company together with a written
notice, signed by the Holder hereof, specifying the names and denominations
in which new Options are to be issued, and the payment of any transfer tax
due in connection therewith.
4. Subject and pursuant to the provisions of this Section 4, the Option Price
and number of Common Shares subject to this Option shall be subject to
adjustment from time to time as set forth hereinafter in this Section 4.
(a) If the Company shall at any time subdivide its outstanding Common
Shares by recapitalization, reclassification, stock dividend, or
split-up thereof or other means, the number of Common Shares
subject to this Option immediately prior to such subdivision shall
be proportionately increased and the Option Price shall be
proportionately decreased, and if the Company shall at any time
combine the outstanding Common Shares by recapitalization,
reclassification or combination thereof or other means, the number
of Common Shares subject to this Option immediately prior to such
combination shall be proportionately decreased and the Option Price
shall be proportionately increased. Any such adjustment and
adjustment to the Option Price shall become effective at the close
of business on the record date for such subdivision or combination.
- 2 -
(b) If the Company after the date hereof shall distribute to all of the
holders of its Common Shares any securities including, but not
limited to Common Shares, or other assets (other than a cash
distribution made as a dividend payable out of earnings or out of
any earned surplus legally available for dividends under the laws
of the jurisdiction of incorporation of the Company), the Board of
Directors shall be required to make such equitable adjustment in
the Option Price and the type and/or number of Underlying
Securities in effect immediately prior to the record date of such
distribution as may be necessary to preserve to the Holder of this
Option rights substantially proportionate to and economically
equivalent to those enjoyed hereunder by such Xxxxxx immediately
prior to the happening of such distribution. Any such adjustment
made reasonably and in good faith by the Board of Directors shall
be final and binding upon the Holders and shall become effective as
of the record date for such distribution.
(c) No adjustment in the number of Common Shares subject to this Option or
the Option Price shall be required under this Section 4 unless such
adjustment would require an increase or decrease in such number of
shares of at least 1% of the then adjusted number of Common Shares
issuable upon exercise of the Option, provided, however, that any
adjustments which by reason of the foregoing are not required at
the time to be made shall be carried forward and taken into account
and included in determining the amount of any subsequent
adjustment. If the Company shall make a record of the Holders of
its Common Shares for the purpose of entitling them to receive any
dividend or distribution and legally abandon its plan to pay or
deliver such dividend or distribution then no adjustment in the
number of Common Shares subject to the Option shall be required by
reason of the making of such record.
(d) In case of any capital reorganization or reclassification or change of
the outstanding Common Shares (exclusive of a change covered by
Section 4(a) hereof or which solely affects the par value of such
Common Shares) or in the case of any merger or consolidation of the
Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification,
change, capital reorganization or change in the ownership of the
outstanding Common Shares), or in the case of any sale or
conveyance or transfer of all or substantially all of the property
of the Company and in connection with which the Company is
dissolved, the Holder of this Option shall have the right
thereafter (until the expiration of the right of exercise of this
Option) to receive upon the exercise hereof, for the same aggregate
Option Price payable hereunder immediately prior to such event, the
kind and amount of shares of stock or other securities or property
receivable upon such reclassification, change, capital
reorganization, merger or consolidation, or upon the dissolution
following any sale or other transfer, by a holder of the number of
Common Shares of the Company equal to the number of common shares
obtainable upon exercise of this Option immediately prior to such
event; and if any reorganization, reclassification, change, merger,
consolidation, sale or transfer also results in a change in Common
Shares covered by Section 4(a), then such adjustment shall be made
pursuant to both this Section 4(d) and Section 4(a). The
provisions of this Section 4(d) shall similarly apply to successive
reclassification, or capital reorganizations, mergers or
consolidations, changes, sales or other transfers.
- 3 -
(e) The Company shall not be required to issue fractional Common Shares
upon any exercise of this Option. As to any final fraction of a
Common Share which the Holder of this Option would otherwise be
entitled to purchase upon such exercise, the Company shall pay a
cash adjustment in respect of such final fraction in an amount
equal to the same fraction of the market value of a share of such
stock on the business day preceding the day of exercise or book
value as determined by the Company's independent public accountants
if not publicly traded. The Holder of this Option, by his
acceptance hereof, expressly waives any right to receive any
fractional shares of stock upon exercise of this Option.
(f) As used herein, the current market price ("Market Price") per share at
any date shall be the price of Common Shares on the business day
immediately preceding the event requiring an adjustment hereunder
and shall be (A) if the principal trading market for such
securities is an exchange, the closing price on such exchange on
such day provided if trading of such Common Shares is listed on any
consolidated tape, the price shall be the closing price set forth
on such consolidated tape or (B) if the principal market for such
securities is the over-the-counter market, the high bid price on
such date as set forth by NASDAQ or closing price if listed on
NASDAQ NMS or, if the security is not quoted on NASDAQ, the high
bid price as set forth in the NATIONAL QUOTATION BUREAU sheet
listing such securities for such day. Notwithstanding the
foregoing, if there is no reported closing price or high bid price,
as the case may be, on a date prior to the event requiring an
adjustment hereunder, then the current market price shall be
determined as of the latest date prior to such day for which such
closing price or high bid price is available.
(g) Irrespective of any adjustments pursuant to this Section 4 in the
Option Price or in the number, or kind, or class of shares or other
securities or other property obtainable upon exercise of this
Option, and without impairing any such adjustment the certificate
representing this Option may continue to express the Option Price
and the number of Common Shares obtainable upon exercise at the
same price and number of Common Shares as are stated herein.
(h) Until this Option is exercised, the Underlying Shares, and the Option
Price shall be determined exclusively pursuant to the provisions
hereof.
(i) Upon any adjustment of this Option the Company shall give written
notice thereof to the Holder which notice shall include the number
of Underlying Securities purchasable and the price per share upon
exercise of this Option and shall set forth in reasonable detail
the events which resulted in such adjustment.
- 4 -
5. For the purposes of this Option, the terms "Common Shares" or "Common Stock"
shall mean (i) the class of stock designated as the common stock of the
Company on the date set forth on the first page hereof or (ii) any other
class of stock resulting from successive changes or reclassification of
such Common Stock consisting solely of changes from par value to no par
value, or from no par value to par value or changes in par value. If
at any time, as a result of an adjustment made pursuant to Section 4,
the securities or other property obtainable upon exercise of this
Option shall include shares or other securities of another corporation
or other property, then thereafter, the number of such other shares or
other securities or property so obtainable shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Shares contained in Section 4, and all other provisions of this Option
with respect to Common Shares shall apply on like terms to any such
other shares or other securities or property. Subject to the
foregoing, and unless the context requires otherwise, all references
herein to Common Shares shall, in the event of an adjustment pursuant
to Section 4, be deemed to refer also to any other shares or other
securities or property when obtainable as a result of such adjustments.
6. The Company covenants and agrees that:
(a) During the period within which the rights represented by this Option
may be exercised, the Company shall, at all times, reserve and keep
available out of its authorized capital stock, solely for the
purposes of issuance upon exercise of this Option, such number of
its Common Shares as shall be issuable upon the exercise of this
Option and at its expense will obtain the listing thereof on all
quotation systems or national securities exchanges on which the
Common Shares are then listed; and if at any time the number of
authorized Common Shares shall not be sufficient to effect the
exercise of this Option, the Company will take such corporate
action as may be necessary to increase its authorized but unissued
Common Shares to such number of shares as shall be sufficient for
such purpose; the Company shall have analogous obligations with
respect to any other securities or property issuable upon exercise
of this Option;
(b) All Common Shares which may be issued upon exercise of the rights
represented by this Option will, upon issuance, be validly issued,
fully paid, non-assessable and free from all taxes, liens and
charges with respect to the issuance thereof; and
(c) All original issue taxes payable in respect of the issuance of Common
Shares upon the exercise of the rights represented by this Option
shall be borne by the Company, but in no event shall the Company be
responsible or liable for income taxes or transfer taxes upon the
transfer of any Options.
- 5 -
7. The Company may issue a call of this Warrant ("Call Notice") at any time
after the Effective Registration Date, but prior to the expiration of
this Warrant, by written notice to Warrant Holder, provided only that
the Closing Price (hereinafter defined) of the Company's Common Stock
has theretofore equalled or exceeded Forty-five Cents ($0.45) per Share
for ten (10) consecutive Trading Days after the Effective Registration
Date. This Warrant shall expire and become null and void thirty (30)
days after the issuance of the Call Notice. The Warrant Holder may
exercise this Warrant and purchase some or all of the Shares then
subject to this Warrant within said thirty (30)-day period, but may not
thereafter exercise this Option or purchase any of the Shares. If the
Warrant is not exercised within said thirty (30) day period, the
Company will have the right to redeem any or all outstanding and
unexercised Options at a redemption price of $0.0001 per Warrant. For
purposes of this Section 7.3, "Closing Price" means (a) if the Common
Stock is then listed on an established stock exchange or exchanges, the
average bid and ask price per share for each Trading Day on the
principal exchange on which the Common Stock is traded, as reported in
The Wall Street Journal; or (b) if the Common Stock is not then listed
on an exchange, the price per share for the Common Stock in the
over-the-counter market as quoted on NASDAQ (either National Market
System or Small Cap Issues or the OTC Electronic Bulletin Board), for
each Trading Day, as reported in The Wall Street Journal. If the
Common Stock is not then listed on an exchange or quoted on NASDAQ or
the OTC Electronic Bulletin Board, the Common Stock shall be deemed to
have a Closing Price of less Forty-five Cents ($0.45) per share on such
Trading Day. For purposes of this Section 7.3, the term "Trading Day"
shall mean a day on which the New York Stock Exchange is open for
trading.
8. Until exercised, this Option shall not entitle the Holder hereof to any
voting rights or other rights as a shareholder of the Company.
9. No transfer of all or a portion of the Option or Underlying Securities
shall be made at any time unless the Company shall have been supplied
with evidence reasonably satisfactory to it that such transfer is not
in violation of the Securities Act of 1933, as amended (the "Act").
Subject to the satisfaction of the aforesaid condition and upon
surrender of this Option or certificates for any Underlying Securities
at the office of the Company, the Company shall deliver a new Option or
Options or new certificate or certificates for Underlying Securities to
and in the name of the assignee or assignees named therein. Any such
certificate may bear a legend reflecting the restrictions on transfer
set forth herein.
10. If this Option is lost, stolen, mutilated or destroyed, the Company shall,
on such terms as to indemnity or otherwise as the Company may
reasonably impose, issue a new Option of like denomination, tenor and
date. Any such new Option shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen,
mutilated or destroyed Option shall be at any time enforceable by
anyone.
11. Any Option issued pursuant to the provisions of Section 9 hereof, or upon
transfer, exchange, division or partial exercise of this Option or
combination thereof with another Option or Options, shall set forth
each provision set forth in Sections 1 through 15, inclusive, of this
Option as each such provision is set forth herein, and shall be duly
executed on behalf of the Company by its chief executive officer or
chief operating officer.
- 6 -
12. Upon surrender of this Option for transfer or exchange or upon the exercise
hereof, this Option shall be cancelled by the Company, and shall not be
reissued by the Company and, except as provided in Section 2 in case of
a partial exercise, Section 3 in case of an exchange or Section 8 in
case of a transfer, or Section 9 in case of mutilation. Any new Option
certificate shall be issued promptly but not later than fifteen (15)
days after receipt of the old Option certificate.
13. This Option shall inure to the benefit of and be binding upon the Holder
hereof, the Company and their respective successors, heirs, executors,
legal representatives and assigns.
14. All notices required hereunder shall be in writing and shall be deemed given
when telegraphed, delivered personally or within two (2) days after
mailing when mailed by certified or registered mail, return receipt
requested, to the party to whom such notice is intended, at the address
of such other party as set forth on the first page hereof, or at such
other address of which the Company or Holder has been advised by the
notice hereunder.
15. In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
16. The validity, interpretation and performance of this Option and of the terms
and provisions hereof shall be governed by the laws of the State of
California applicable to agreements entered into and performed entirely in
such state.
IN WITNESS WHEREOF, the Company has caused this Option to be executed by its
duly authorized officer as of JANUARY 6, 1996.
VITAFORT INTERNATIONAL CORPORATION
By: /s/ XXXX XXXXXXX
_________________________________
Xxxx Xxxxxxx, Chief Executive Officer
- 7 -
PURCHASE FORM
TO BE EXECUTED
UPON EXERCISE OF OPTION
The undersigned record holder of the within Option hereby irrevocably elects to
exercise the right to purchase __________ Common Shares evidenced by the within
Option, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full. The undersigned requests that
certificates for such shares and warrants shall be issued in the name set forth
below.
______________, 19___
_________________________________
Signature
_________________________________
Print Name of Signatory
_________________________________
Name to whom certificates are to be issued if different from above
_________________________________
(Street Address)
_________________________________
(City, State Zipcode)
_________________________________
(Tax Payer I.D. Number)
If said number of shares and warrants shall not be all the shares purchasable
under the within Option, the undersigned requests that a new Option for the
unexercised portion shall be registered in the name of:
_________________________________
(Please Print)
_________________________________
(Street Address)
_________________________________
(City, State Zipcode)
_________________________________
(Tax Payer I.D. Number)
_________________________________
Signature
_________________________________
Print Name of Signatory
- 8 -
FORM OF ASSIGNMENT
FOR VALUE RECEIVED ________________________________, hereby sells,
assigns and transfers to ________________________________,(Social
Security or I.D. No. ______________________) the within Option, or that
portion of this Option purchasable for _______ common shares together
with all rights, title and interest therein, and does hereby
irrevocably constitute and appoint ____________________________________
attorney to transfer such Option on the register of the within named
Company, with full power of substitution.
_________________________________
(Signature)
Dated: ______________, 19___
Signature Guaranteed:
_________________________________
(INTENTIONALLY BLANK)
- 9 -
