EXHIBIT 10.7
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
THIS STOCK OPTION AGREEMENT is made as of the ____ day of ____________
1993, between DMX ACQUISITION CORP., a Delaware corporation (hereinafter
referred to as the "Company"), and XXXXXX X. XXXXXX (hereinafter referred to as
"Optionee").
R E C I T A L S:
---------------
A. Optionee is currently an employee of the Company's subsidiary, Datamax
Corporation, a Delaware corporation ("Datamax").
B. The Company considers it desirable and in the Company's best interest
that Optionee be given an inducement to acquire a proprietary or equity interest
in the Company as an added incentive to advance the interests of the Company in
the form of an option to purchase Common Stock of the Company.
C. The Company has approved and implemented a Stock Option Plan, dated
September 4, 1991 (the "Plan"), and amended the Plan as of _____________, 1993,
all of the terms of which are incorporated herein by reference. The Plan is
available for inspection by Optionee at the principal offices of the Company.
A G R E E M E N T:
-----------------
In consideration of the mutual covenants and agreements contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Optionee the right and
option (hereinafter referred to as the "Option") to purchase up to an aggregate
of 125,000 shares of the Company's Common Stock (the "Stock") at an exercise
price of $4.00 per share (the "Exercise Price"), on the terms and conditions
herein set forth. The date of grant of the Option is the date of this
Agreement.
2. Period of Option, When Exercisable, and Vesting. The term of this
Option shall be for a period of ten (10) years from the date hereof, subject to
earlier termination as provided herein (the "Exercise Period"). During the
Exercise Period, Optionee may exercise this Option for portions of the total
shares granted above only in accordance with the following vesting schedule:
(a) In the event that earnings before interest and taxes but after
selling, general and administrative expenses for the Company's subsidiary, Fargo
Acquisition Corporation (Datamax Bar Code Products Corp. after the name change)
("EBITAF"), for the fiscal year ending at the end of February, 1994 equals
more than $16,500,000 but less than $20,500,000, this option may be exercised as
to 20,000 shares if the EBITAF is $16,500,000 or 25,000 shares if the EBITAF is
$20,500,000 or greater, or an amount between these amounts on a linear basis if
the EBITAF is between $16,500,000 and $20,500,000."
(b) In the event that the EBITAF for the fiscal year ending at the end of
February, 1995 ("EBITAF 95") is greater than $18,975,000 but less than
$23,575,000, this option may be exercised as to 20,000 shares if the EBITAF is
$18,975,000, or 25,000 shares if the EBITAF is $23,575,000 or greater, or an
amount between these amounts on a linear basis if the EBITAF is between
$18,975,000 and $23,575,000.
(c) In the event that the EBITAF for the fiscal year ending at the end of
February, 1996 ("EBITAF 96") is greater than $21,821,250 but less than
$27,111,250, this option may be exercised as to 20,000 shares if the EBITAF is
$21,821,250, or 45,000 shares if the EBITAF is $27,111,250 or greater, or an
amount between these amounts on a linear basis if the EBITAF is between
$21,821,250 and $27,111,250.
(d) Provided that vesting has occurred for each of the fiscal years ending
in 1994, 1995 and 1996 as set forth above, and provided Optionee is employed by
the Company on March 1, 1997, this option may be exercised as to 25,000 shares
(in addition to other vested shares).
(e) Provided that vesting has occurred for each of the fiscal years ending
in 1994, 1995 and 1996 as set forth above, and provided Optionee is employed by
the Company on March 1, 1998, this option may be exercised as to 25,000 shares
(in addition to other vested shares).
(f) Datamax and the Optionee may mutually agree as to other financial
objectives or time vesting in lieu of the vesting objectives set forth in
paragraph 2(b), (c), (d) and (e) in order for vesting to occur, but in no event
shall vesting occur for an applicable fiscal year for more than 25,000 shares or
less than 20,000 shares. Any such agreement shall be reached prior to the
beginning of an applicable fiscal year and shall be evidenced by written
amendment to this Stock Option Agreement.
(g) Notwithstanding anything to the contrary set forth above, in the event
the Optionee voluntarily terminates his employment with the Company (i) prior to
the second anniversary date of this Stock Option Agreement (the "Anniversary
Date"), no shares may be purchased pursuant to this Stock Option Agreement, or
(ii) after the second Anniversary Date but on or before the third Anniversary
Date, forty percent (40%) of the shares that may otherwise be purchased pursuant
to paragraphs 2(a), (b) or (c) above may be purchased pursuant to this Stock
Option Agreement.
EBITAF shall be calculated by the Company's Chief Financial Officer upon
receipt of the audited financial statements for the Company for each applicable
fiscal year. The Optionee shall be notified by the Company within thirty (30)
days after receipt by the Company of its audited financial statements for the
applicable fiscal year of the EBITAF as calculated by the Chief Financial
Officer. For purposes of exercising this Option, in the event that Optionee's
employment by Datamax has terminated following the end of an applicable fiscal
year but before optionee has been notified of the EBITAF for such fiscal year,
the date of termination of employment shall be deemed to be the date
-2-
on which Optionee receives such notification. In the event that Optionee's
employment terminates prior to the end of an applicable fiscal year and it is
later determined that the EBITAF vesting target was achieved for such fiscal
fear, Optionee shall be entitled to exercise that vested portion triggered by
achieving such target equal to the ratio of the vested shares for the fiscal
year times the number of days during such fiscal year Optionee was employed by
Datamax divided by 365 days. Optionee understands that if Optionee is permitted
by this provision to exercise a portion of this Option beyond ninety (90) days
following termination of Optionee's employment, such portion may not be
qualified as an incentive stock option under Section 422 of the Internal Revenue
Code.
3. Exercise Of Option. The Option shall be exercisable only after the
second anniversary date of this Stock Option Agreement (unless earlier exercise
is permitted by the Company in writing) during the Exercise Period of the Option
and only in accordance with the above vesting schedule as long as Optionee is in
Continuous Employment with Datamax. Notwithstanding the preceding sentence, the
Option may be exercised for the number of shares vested in Optionee as of the
date of termination of Continuous Employment:
(a) for a period ending thirty (30) days after the Optionee has
terminated his Continuous Employment with Datamax, unless the optionee was
terminated for cause by Datamax, in which case the Option terminates on notice
of termination of employment; or
(b) by the estate of the Optionee, within one (1) year after the date
of the Optionee's death, if the Optionee should die while in the Continuous
Employment of Datamax; or
(c) within one (1) year after the Optionee's employment with Datamax
terminates, if the Optionee becomes disabled during Continuous Employment with
Datamax and such disability is the cause of termination.
In no event, however, shall the Exercise Period of this option extend
beyond ten (10) years from the execution of this Agreement. The term
"Continuous Employment" used in this section shall have the meaning set forth in
paragraph 11(b) of the Plan.
4. Investment Representation and Agreement.
---------------------------------------
(a) Optionee represents that this Option and any shares purchased
pursuant to this option are purchased for investment purposes only and for
Optionee's own account. Optionee acknowledges that this Option and the shares
pertaining to this Option are not registered under the Securities Act of 1933,
as amended, the Florida Securities and Investor Protection Act, or the
securities laws of any other state.
(b) Optionee agrees not to sell or otherwise transfer any shares of
stock purchased pursuant to this Option without registration under the
Securities Act of 1933, as amended, and under any applicable state securities
law, unless such sale or transfer is exempt from registration. Optionee
acknowledges that the Company's books with respect to the transfer of any shares
of stock purchased pursuant to this Option will reflect this transfer
restriction.
-3-
5. Restrictive Legend. Optionee hereby agrees that certificates
evidencing the shares of stock purchased by Optionee pursuant to this Agreement
shall be stamped or otherwise imprinted with a conspicuous legend in
substantially the following form:
The shares of Common Stock evidenced by this certificate have been
issued under the DMX Acquisition Corp. Stock Option Plan (the "Plan")
and pursuant to an Incentive Stock Option Agreement, and are subject
to the terms and provisions of such Plan and Incentive Stock Option
Agreement.
These shares have not been registered under the Securities Act of
1933, as amended, the Florida Securities and Investor Protection Act
or any other state securities laws, and, therefore, cannot be sold
unless they are subsequently registered under the Act and any
applicable state securities laws, or unless an exemption from
registration is available.
6. Nonassignability of Option Rights. The Option is exercisable only by
Optionee, except in the case of death while in Continuous Employment of Datamax,
in which case the Option is exercisable by Optionee's estate's personal
representative pursuant to paragraph 3(b), and except in the case of Optionee's
termination due to disability occurring during Continuous Employment with
Datamax, in which case the Option is exercisable, if necessary, by Optionee's
legal representative pursuant to paragraph 3(c). The Option may not be sold,
exchanged, assigned, pledged, discounted, hypothecated, or otherwise transferred
except by will or by the laws of descent and distribution. The Option shall not
be subject to execution, attachment, or similar process. Upon any attempt to
sell, exchange, assign, pledge, discount, hypothecate, or otherwise transfer the
Option or any right thereunder, contrary to the provisions hereof and of the
Plan, the Option and all to the provisions hereof and of the Plan, the Option
and all rights thereunder shall immediately become null and void.
7. Method of Exercise. Shares purchased pursuant to this Agreement
shall, at the time of purchase, be paid for in full at the Exercise Price of the
Option as provided in paragraph 1 above. To the extent that the right to
purchase shares has vested hereunder, the Option may be exercised from time to
time during the Exercise Period as set forth in paragraph 2 above by delivering
written notice to the Company stating the number of shares with respect to which
the Option is being exercised and the time of the delivery thereof, which time
shall be at least fifteen (15) days after the giving of such notice, unless an
earlier date shall have been mutually agreed upon by the parties. Upon receipt
of said written notice, the Company shall provide Optionee with that information
required by the applicable state and federal securities laws. If, after receipt
of said information, Optionee desires to withdraw said notice of exercise,
Optionee may withdraw said notice of exercise by notifying the Company, in
writing, prior to the time set forth for delivery of the shares. Provided that
Optionee does not withdraw his notice of exercise as provided herein, at the
time specified in such notice, the Company shall deliver, without transfer or
issue fee or tax, to Optionee, at the main office of the Company or at such
other place as shall be mutually acceptable, a certificate or
-4-
certificates for such shares out of theretofore authorized but unissued or
reacquired common shares as the Company may elect, against payment of the
Exercise Price, in form acceptable to the Company and consistent with the Plan.
If Optionee fails to accept delivery of and pay for the number of shares
specified in such notice upon tender of delivery thereof, his right to exercise
the Option, with respect to such undelivered shares may be Terminated by the
Company.
8. Limitation on Transfer During Registration Period. During the one
hundred twenty (120) day period following the effective date of an initial
registration statement filed by the Company under the Securities Act of 1933, as
amended, Optionee shall not, to the extent requested by the Company and any
underwriter, sell, pledge, transfer, make any short sale of, loan, grant any
option for the purchase of, or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any Stock held by him at any time during
such period except Stock included in such registration statement.
9. Extension of Exercise Period in the Event the Company is Not Publicly
Held. In the event that Optionee's employment with the Company terminates prior
to optionee exercising that portion of this Option that has vested prior to such
termination and on the date of such termination the Company is not a publicly
held company (by being subject to the reporting requirements under Section 13 of
the Securities Exchange Act of 1934), notwithstanding the provisions of
paragraph 3 of this Agreement, the Optionee (or his estate) shall have the right
to exercise that portion of this Option which has vested prior to such
termination for a period equal to thirteen (13) months following the date on
which the Company becomes publicly held or the expiration of this Option at the
end of ten (10) years from the date of this Agreement, whichever occurs first.
The Optionee understands that an extension of the exercise period pursuant to
this provision beyond the Exercise Period set forth in paragraph 3 may cause
that portion of the vested Option not exercised within the applicable period
under paragraph 3 to no longer be qualified as an incentive stock option under
Section 422 of the Internal Revenue Code.
10. Loan to Optionee. Upon exercise of part or all of the vested portion
of this Option by Optionee (or his estate) and upon request by the Optionee (or
his estate), the Company agrees to lend to the Optionee (or his estate) that
amount of money equal to the Exercise Price upon the terms and conditions set
forth in this paragraph. Such loan shall be evidenced by a promissory note in
customary form creating personal liability for such amount for the Optionee (or
his estate). Such promissory note shall be secured by the Stock purchased
pursuant to the exercise of this Option pursuant to a customary pledge
agreement. The promissory note shall carry interest at the applicable federal
rate determined as of the date the promissory note is issued by the Optionee (or
his estate). The promissory note shall be due and payable in full thirteen (13)
months from the date of issuance of the promissory note. Payment of part or all
of the promissory note may be made by the delivery to the Company of that number
of shares of Stock having a fair market value, as determined in good faith by
the Company's Board of Directors, equal to the principal and interest due on
such promissory note. The Optionee understands that payment of the promissory
note in this manner may cause the shares purchased pursuant to this Option,
which are used to repay the promissory note, not to receive the capital gains
tax treatment pursuant to Section 422 of the Internal Revenue Code.
-5-
11. Option to Repurchase.
(a) Company's Option. Any Stock purchased pursuant to this Option
shall be subject to an option to repurchase such Stock by the Company until the
Company becomes publicly held. Such option may be exercised by the Company
during said period in the event of the termination of employment of the
Optionee. The Company must elect to exercise the option to repurchase within
sixty (60) days following the termination of the Optionee, otherwise such option
shall expire. In order to exercise the option, the Company must notify the
Optionee of its intent to exercise its option by mailing a notice to the
Optionee or the representative of the Optionee's estate at the last address
contained in the Company's files for such Optionee. Such notice shall state that
the Company intends to exercise its option and shall state the purchase price
per share which will be paid by the Company and the date on which such option
will be exercised, which date will not be earlier than ten (10) days following
the date of mailing said notice nor later than sixty (60) days following the
date (the "Termination Date") of termination of employment. Such purchase price
shall be the fair market value of the Stock as determined by the Board of
Directors as of the date of the Optionee's termination of employment or death.
If the Optionee's employment is terminated for "cause" by the Company, the
purchase price shall be the price per share paid by the Optionee. As used
herein, the term "cause" shall have the meaning as used in any employment
agreement between the Company and the Optionee, or in the event there is no
employment agreement, as determined by the Board of Directors. The purchase
price shall be evidenced by a promissory note, bearing interest at the
applicable federal rate under Section 1274(d) of the Code. Payments on said note
shall be made in three (3) equal annual installments commencing six (6) months
after the Termination Date.
(b) Delivery of Stock Certificates. Upon receipt of any notice,
pursuant to this paragraph 11(a) hereof from the Company, the Optionee shall
deliver the certificates) representing such shares of Stock to the Company
within ten (10) days from the date of such notice, along with a properly
executed stock power authorizing the Company to transfer said shares to the
Company, its successor or assignee.
12. Changes in Capital Structure of Company. In the event of a change in
capital structure of the Company, the number of shares covered by the Options
and the price per share shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Stock resulting from the splitting or
consolidation of shares, or the payment of a stock dividend, or effected in any
other manner without receipt of additional or further consideration by the
Company. the Company shall give notice of any adjustment to Optionee.
13. Incorporation of Terms and Conditions in the Plan. This Option is
subject to the terms and conditions contained in the Plan, and all amendments
thereto made from time to time, a copy of which is on file with the Company at
its principal business office and which Plan is by this reference thereto
incorporated herein.
14. Retention of Optionee's Shares. Until September 1, 1994 and until the
Senior Debt has been paid in full and the Company and its Subsidiaries may no
longer borrow Senior Debt from SBA under the Senior Loan Agreement, the Optionee
shall not sell, transfer, assign, pledge or
-6-
otherwise dispose of any Stockholder Shares held by Optionee or his Permitted
Transferees, except pursuant to a Sale of the Company or a Public Sale; provided
that nothing contained in this paragraph 14 shall prohibit the Optionee from
transferring Stockholder Shares as permitted by paragraph 15(d) hereof.
15. Restrictions on Transfer of Stockholder Shares.
----------------------------------------------
(a) Transfer of Stockholder Shares. The Optionee shall not sell,
transfer, assign, pledge or otherwise dispose of (a "Transfer") any interest in
any Stockholder Shares except pursuant to the provisions of this paragraph 15,
pursuant to the provisions of paragraph 15(d) hereof (an "Exempt Transfer") or
pursuant to a Public Sale. The Optionee agrees not to consummate any Transfer
(other than an Exempt Transfer or a Public Sale) until 30 days after the later
of the delivery to the Company and the Stockholders of Optionee's Offer Notice
or Sale Notice (if any), unless the parties to the Transfer have been finally
determined pursuant to this paragraph 15 prior to the expiration of such 30-day
period (the "Election Period").
(b) First Offer Right. At least 30 days prior to making any Transfer
of any Stockholder Shares (other than an Exempt Transfer or a Public Sale), the
Optionee shall deliver a written notice (an "Offer Notice") to the Company and
the Stockholders (the "Other Stockholders"). The Offer Notice shall disclose in
reasonable detail the proposed number of Stockholder Shares to be transferred
and the proposed terms and conditions of the Transfer, and if the Optionee has
identified or had any discussions with any prospective transferee, the Offer
Notice shall also disclose the identity of the prospective transferees) (the
purchase price specified in any Offer Notice shall be payable Solely in cash at
the closing of the transaction or installments over time, and no Stockholder
Shares may be pledged). First, the Company may elect to purchase all (but not
less than all) of the Stockholder Shares specified in the Offer Notice at the
price and on the terms specified therein by delivering written notice of such
election to the Optionee and the Other Stockholders as soon as practical, but in
any event within 10 days after the delivery of the Offer Notice. If the Company
has not elected to purchase all of the Stockholder Shares within such 10-day
period, the other Stockholders may elect to purchase all (but not less than all)
of such Stockholder Shares at the price and on the terms specified in the Offer
Notice by delivering written notice of such election to the Optionee as soon as
practical, but in any event within 20 days after delivery of the Offer Notice.
If the Other Stockholders have in the aggregate elected to purchase more than
the number of Stockholder Shares being offered by the Optionee, the Stockholder
Shares shall be allocated among the Other Stockholders electing to purchase
shares according to each such Stockholder's Pro Rata Share. If the Company or
any Other Stockholders have elected to purchase Stockholder Shares from the
Optionee, the transfer of such shares shall be consummated as soon as practical
after the delivery of the election notice(s) to the Optionee, but in any event
within 15 days after the expiration of the Election Period. To the extent that
the Company and the other Stockholders have not elected to purchase all of the
Stockholder Shares being offered, the Optionee may, within 90 days after the
expiration of the Election period and subject to the provisions of subparagraph
(c) below, transfer all such Stockholder Shares to one or more third parties at
a price no less than 95% of the price per share specified in the offer Notice
and on other terms no more favorable to the transferees thereof than offered to
the Company and the Other Stockholders in the Offer Notice. Any Stockholder
-7-
Shares not transferred within such 90-day period shall be reoffered to the
Company, and the Other Stockholders prior to any subsequent Transfer. Each
Stockholder's "Pro Rata Share" shall be based upon such Stockholder's
proportionate ownership of all shares of capital stock outstanding in the
Company on a fully-diluted basis.
(c) Participation Rights. At least 30 days prior to any Transfer of
Stockholder Shares (other than an Exempt Transfer or a Public Sale), the
Optionee shall deliver a written notice (the "Sale Notice") to the Company and
the other Stockholders (the "Other Stockholders"), specifying in reasonable
detail the identity of the prospective transferee(s), the number of shares to be
transferred and the terms and conditions of the Transfer. The Other
Stockholders may elect to participate in the contemplated Transfer by delivering
written notice to the Transferring Stockholder within 15 days after delivery of
the Sale Notice. If any Other Stockholders have elected to participate in such
Transfer, the Optionee and such Other Stockholders shall be entitled to sell in
the contemplated Transfer, at the same price and on the same terms, a number of
Stockholder Shares equal to the product of (1) the quotient determined by
dividing the percentage of capital stock owned by such person by the aggregate
percentage of Stockholder Shares owned by the optionee and the Other
Stockholders participating in such sale, and (ii) the number of Stockholder
Shares to be sold in the contemplated Transfer.
For example, if the Sale Notice contemplated a sale of 100 Stockholder
Shares by the Optionee and if the Optionee at such time owns 1% of all
Stockholder Shares and if one Other Stockholder elects to participate and
owns 5% of all Stockholder Shares, the Optionee would be entitled to sell
16.6 shares (1% divided by 5% times 100 shares) and the Other Stockholder
would be entitled to sell 83.4 shares (5% divided by 6% times 100 shares).
The Optionee shall use his best efforts to obtain the agreement of the
prospective transferees) to the participation of the Other Stockholders in any
contemplated Transfer and to the inclusion of the Preferred Stock and the
Warrants in the contemplated Transfer, and the Optionee shall not transfer any
of his Stockholder Shares to any prospective transferee if such prospective
transferee declines to allow the participation of the Other Stockholders or the
inclusion of the Preferred Stock or the Warrants. If any portion of the
warrants is included in any Transfer of Stockholder Shares under this
subparagraph 15(c), the purchase price for the Warrants shall be equal to the
full purchase price determined hereunder for the Stockholder Shares covered by
the portion of the Warrants to be transferred, reduced by the aggregate exercise
price for such shares.
(d) Permitted Transfers. The restrictions set forth in this paragraph 15
shall not apply with respect to any Transfer of Stockholder Shares by the
Optionee (i) to the Company, (ii) to any Other Stockholder (or to a person that
is a Permitted Transferee of such Stockholder), (iii) pursuant to applicable
laws of descent and distribution or among the Optionee's Family Group
(collectively referred to herein as "Permitted Transferees"); provided that the
restrictions contained in this paragraph 15 shall continue to be applicable to
the Stockholder Shares after any such Transfer and provided further that the
transferees of such Stockholder Shares shall have agreed in writing to be bound
by the provisions of this Agreement affecting the Stockholder Shares so
transferred.
-8-
(e) Termination of Restrictions. The restrictions on the Transfer of
Stockholder Shares set forth in this paragraph 15 shall continue with respect to
each Stockholder Share until the first to occur of (i) the date on which such
Stockholder Share has been transferred in a Public Sale, Or (ii) upon the
Company becoming publicly held.
(f) Definitions. The definitions of those defined terms used in
paragraphs 14 and 15 hereof, unless defined elsewhere in this Agreement, are as
follows:
(i) "Preferred Shares" - Issued and outstanding shares, of
any series, of preferred stock in the Company.
(ii) "Public Sale" - Sale of Stockholder Shares pursuant to an
effective registration statement or in a broker's transaction under Rule 144 or
to the public under an exemption from registration.
(iii) "Sale of the Company" - The sale of substantially all of
the assets of the Company or the merger of the Company into another corporation,
the majority of whose voting shares are not held, immediately after such merger,
by stockholders of the Company immediately prior to such merger.
(iv) "SBA" - The Florida State Board, of Administration.
(v) "Senior Debt" Borrowings from the Florida State Board of
Administration.
(vi) "Stockholders" Stockholders of record in the Company
other than the Optionee.
(vii) "Stockholder Shares" - Shares of capital stock of the
Company held by the Optionee or shares of capital stock of the Company (or
rights to purchase shares) held by Stockholders in the Company.
(viii) "Warrants" - Stock purchase warrants issued and
outstanding in the Company, but not including stock options issued to officers,
directors or employees of the Company in connection with their services in such
capacity.
16. Governing Law. This Agreement shall be governed by, interpreted
under, and construed in accordance with the laws of the State of Florida.
17. Binding Effect. This Agreement will inure to the benefit of and be
binding on the Company, its successors and assigns, including, but not limited
to, any company or entity that may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged, and on Optionee and except as set forth in paragraph 6 above, their
heirs, legal representatives, and successors, as the case may be.
-9-
18. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement and
supersedes any and all previous agreements between the parties, whether written
or oral, with respect to such subject matter.
19. Waiver or Modification. No waiver or modification of this Agreement
or of any covenant, condition, or limitation herein contained shall be valid
unless in writing and duly executed by the party to be charged therewith.
Furthermore, no evidence of any waiver or modification shall be offered or
received in evidence in any proceeding, arbitration, or litigation between the
parties arising out of or affecting this Agreement or the rights or obligations
of any party hereunder, unless such waiver or modification is in writing and
duly executed as aforesaid. The provisions of this paragraph may not be waived
except as herein set forth.
20. Number and Gender. Whenever used herein, singular numbers shall
include the plural, the singular, and the use of any gender shall include all
genders.
21. Invalid Provision. The invalidity or unenforceability of any term or
provision of this Agreement or the nonapplication of any such term or provision
to any person or circumstance shall not impair or affect the remainder of this
Agreement, and the remaining terms and provisions hereof shall not be
invalidated but shall remain in full force and effect and shall be construed as
if such invalid, unenforceable, or nonapplicable provision were omitted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
"COMPANY"
DMX ACQUISITION CORP.
By: ___________________________
Xxxxxx X. Xxxxxxxxxx
President
"OPTIONEE"
________________________________
Xxxxxx X. Xxxxxx
-10-
