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EXHIBIT 4(w)
STOCK OPTION AGREEMENT
AGREEMENT made as of the 1st day of May, 1996, by and between UNIVERSAL
MEDICAL SYSTEMS, INC, a Nevada corporation, having its office and principal
place of business located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "COMPANY") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Enterprises, Ltd., a Florida
Limited Partnership having its office and principal place of business located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "HOLDER").
WITNESSETH:
WHEREAS, on the 1st day of May, 1996, pursuant to an Agreement between the
COMPANY, and H.B.L. Associates, Inc., of even date, the COMPANY'S Board of
Directors granted an option to Holder to purchase 500,000 shares of the
authorized but unissued Common Stock of the COMPANY, $.001 par value ("Stock")
at an exercise price equal to $.01 per share; a copy of said Agreement being
attached hereto and incorporated by reference herein; and,
WHEREAS, the Parties desire to set forth the terms and conditions of such
option;
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used herein, the following terms have the meanings
hereinafter set forth unless the context clearly indicates to the contrary:
1.1 "ACT" shall mean the Securities Act of 1933.
1.2. "AGREEMENT" shall mean the Agreement dated May 1, 1996,
executed by and between the COMPANY and H.B.L. Associates.
1.3. "BOARD" shall mean the Board of Directors of the Company.
1.4. "COMPANY" shall mean Universal Medical Systems, Inc., a Nevada
Corporation.
1.5. "DATE OF GRANT" shall mean the 1st day of May, 1996.
1.6. "EXERCISE PERIOD" shall mean anytime after the DATE OF GRANT
and upon earning rights to the option, or a portion thereof.
1.7. "EXERCISE PRICE" shall mean the purchase price for each share
of stock subject to this Option; to wit: $.01 per share.
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1.8. "HOLDER" shall mean the person identified hereinabove having
the right to exercise the option granted hereunder.
1.9. "OPTION" shall mean the right to purchase stock granted under
the provisions of this Agreement.
1.10. "STOCK" shall mean the COMPANY'S common stock, par value $.001
per share.
1.11. "STOCK OPTION AGREEMENT" shall mean this Agreement.
2. GRANT OF OPTION. Subject to the terms and conditions of the AGREEMENT,
the terms of Subparagraph 4.4.3 thereof being incorporated by reference herein,
the COMPANY hereby grants to the HOLDER the right and option to purchase all or
any part of an aggregate of 500,000 shares of STOCK for the EXERCISE PRICE on
the terms and conditions herein set forth.
3. EXERCISE OF OPTION. The OPTION shall be exercisable during the EXERCISE
PERIOD; provided, this OPTION shall be exercisable in whole or in part but not
as to less than 5,000 shares of Stock, unless the number of shares of STOCK as
to which this OPTION is exercisable is less than 5,000 at anytime or from time
to time during the EXERCISE PERIOD.
4. METHOD OF EXERCISE OF OPTION. The OPTION shall be exercised by delivery
to the COMPANY, as its principal place of business in Clearwater, Florida, of
(i) the written Notice of Exercise in the form attached hereto as Exhibit A,
which is incorporated herein by reference, specifying the number of shares of
STOCK with respect to which the OPTION is being exercised and signed by the
person exercising the OPTION as provided herein; and, (ii) payment in full of
the purchase price. Upon acceptance of such Notice and receipt of payment in
full the COMPANY shall cause to be issued a certificate representing the shares
of STOCK purchased. The HOLDER shall not have any of the rights of a stockholder
with respect to the STOCK covered by the OPTION until the date of issuance of a
stock certificate to him for such shares of STOCK. The certificates or
certificates for the STOCK as to which the OPTION shall have been so exercised
shall be registered in the name of the person or persons so exercising the
OPTION, and shall be delivered as aforesaid to or upon written order of the
person or persons exercising the OPTION. In the event the OPTION is being
exercised by any person or persons other than the HOLDER, the notice shall be
accompanied by appropriate proof of the right of such person or persons to
exercise the OPTION.
5. TRANSFER AND ASSIGNMENT OF OPTION. This OPTION and the rights and
privileges conferred in whole or in part hereby, may not be transferred,
assigned, pledged; or, hypothecated in any way (whether by operation of law,
except pursuant
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to the laws of descent and distribution, or otherwise) unless registered under
the ACT; or, in the opinion of counsel satisfactory to the COMPANY an exemption
from registration under the ACT is available to such transaction. COMPANY shall
pay all costs incurred by the HOLDER in such transaction including but not
limited to legal fees. The OPTION shall not be subject to levy and execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate, or, otherwise dispose of the OPTION or any right or privilege
conferred hereby, contrary to the provisions hereof, or upon the levy and
execution, attachment or similar process on the OPTION and the rights and
privileges conferred under this STOCK OPTION AGREEMENT, this OPTION and the
rights and privileges conferred hereby shall immediately become null and void.
6. ISSUANCE OF SHARES. COMPANY shall be obligated to sell and issue STOCK
pursuant to this OPTION and in accordance with the terms hereof but not before
the STOCK with respect to which the OPTION is being exercised is effectively
registered or exempt from registration under the ACT in the opinion of counsel
for the COMPANY. The BOARD may require, as a condition to the sale of STOCK on
the exercise of the OPTION, that the person exercising the OPTION give to
COMPANY such documents, including such appropriate investment representations as
may be required by counsel for the COMPANY, and such additional agreements and
documents as the BOARD shall determine to be in the best interests of the
COMPANY.
7. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES AND REGISTRATION RIGHTS.
The HOLDER hereby agrees that unregistered shares of STOCK ("Restricted
Securities") issued upon exercise of the OPTION, in whole or in part, shall not
be transferable except upon the conditions specified in this Section 7., which
conditions are intended to insure compliance with the provisions of the ACT, or,
in the case of Paragraph 7.12. hereof, to assist in an orderly distribution.
The HOLDER shall cause any proposed transferee of the Restricted Securities held
by the HOLDER to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Section 7.
7.1. CERTAIN DEFINITIONS. As used in this Section 7, the following
terms shall have the following respective meanings.
7.1.1. "COMMISSION" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the
ACT.
7.1.2. "REGISTRABLE SECURITIES" means (i) shares of STOCK
issued or issuable pursuant to the exercise of the earned OPTION;
and, (ii) any Common Stock issued in respect of the Shares or other
securities which were issued pursuant to the conversion of the
shares of STOCK
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upon any stock split, stock dividend, recapitalization, or similar
event.
7.1.3. The terms "REGISTER", "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a
registration statement in compliance with the ACT, and the
declaration or ordering of the effectiveness of such registration
statement.
7.1.4. "REGISTRATION EXPENSES" shall mean all expenses
incurred by the COMPANY in complying with Paragraph 7.4. hereof,
including, without limitation, all disbursements of filing fees,
printing expenses, fees and disbursements of counsel for the
COMPANY, reasonable fees and disbursements of counsel for the
selling HOLDERS, blue sky fees and expenses, and accountants'
expenses, including without limitation, any special audits incident
to or required by any such registration (but excluding the
compensation of regular employees of the COMPANY and any accounting,
audit or legal expenses the COMPANY would incur under the Securities
and Exchange Act of 1934, which shall be paid in any event by the
COMPANY).
7.1.5. "SELLING EXPENSES" shall mean all underwriting
discounts and selling commissions applicable to the sale of
Registrable Securities and any other securities of the COMPANY being
sold in the same registration as the Registrable Securities by the
HOLDER and, in the case of a registration pursuant to Paragraph
7.4., the expense of any special audits incident to or required by
such registration (but excluding the compensation of regular
employees of the COMPANY which shall be paid in any event by the
COMPANY).
7.2. RESTRICTIVE LEGEND; NOTATION ON STOCK BOOKS. Each certificate
representing (i) the Restricted Securities; or, (ii) any other securities
issued in respect to the Restricted Securities or issued upon conversion
of the Restricted Securities upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall (unless
otherwise permitted by the provisions of Paragraph 7.3.) be stamped or
otherwise imprinted with legends substantially in the form set forth in
Section 10. hereof. In addition, the COMPANY shall make a notation
regarding the restrictions on transfer of the Restricted Securities, and
any Restricted Securities shall be transferred on the books of the COMPANY
only if transferred or sold pursuant to an effective registration
statement under the ACT covering such securities or pursuant to and in
compliance with Paragraph 7.3.
7.3. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply
in all respects with the provisions of this Paragraph 7.3. Prior to any
proposed
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transfer of any Restricted Securities (other than under circumstances
described in Paragraph 7.4. hereof), the HOLDER thereof shall give written
notice to the COMPANY of such HOLDER'S intention to effect such transfer.
Each such notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and, if requested by the COMPANY
shall be accompanied by, at the HOLDER'S option, either (i) an unqualified
written opinion of legal counsel who shall be reasonably satisfactory to
the COMPANY addressed to the COMPANY and reasonably satisfactory in form
and substance to the COMPANY'S counsel, to the effect that the proposed
transfer of the Restricted Securities may be effected without registration
under the ACT; or, (ii) a "no action" letter from the COMMISSION to the
effect that the transfer of such securities without registration will not
result in a recommendation by the staff of the COMMISSION that action be
taken with respect thereto, whereupon the HOLDER of such Restricted
Securities shall be entitled to transfer such Restricted Securities in
accordance with the terms of the notice delivered by the HOLDER to the
COMPANY. Each certificate evidencing the Restricted Securities transferred
as above provided shall bear the appropriate restrictive legend set forth
in Paragraph 7.2. and Section 10., except that such certificate shall not
bear such restrictive legend if the opinion of counsel or no action letter
referred to above is to the further effect that such legend is not
required in order to establish compliance with the provisions of the ACT.
7.4. COMPANY REGISTRATION.
7.4.1. If the COMPANY shall determine to register any of its
securities either for its own account or the account of a security
holder or holders exercising their respective demand registration
rights, if applicable, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a
transaction pursuant to Rule 145 promulgated by the COMMISSION under
the ACT, or a registration statement on Form S-2, or a registration
on any registration form which does not permit secondary sales or
does not include substantially the same information as would be
required to be included in a registration statement covering the
sale of Registrable Securities, the COMPANY will:
(i) promptly give to each HOLDER written notice thereof
(which shall include a list of the jurisdictions in which the
COMPANY intends to attempt to qualify such securities under
the applicable blue sky or other state securities laws); and,
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made
within 15 days after the giving
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of such written notice from the COMPANY, by any HOLDER or
HOLDERS, except as set forth hereinbelow,
7.4.2. UNDERWRITING. If the registration of which the COMPANY
gives notice is for a registered public offering involving an
underwriting, the COMPANY shall so advise the HOLDERS as a part of
the written notice given pursuant to Paragraph 7.4.1. (i). In such
event the right of any HOLDER to registration pursuant to this
Paragraph 7.4. shall be conditioned upon such HOLDER'S participation
in such underwriting and the inclusion of such HOLDER'S Registrable
Securities in the underwriting to the extent provided herein. All
HOLDERS proposing to distribute their securities through such
underwriting shall (together with the COMPANY) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the COMPANY and on the
terms and conditions set forth by the COMPANY and the underwriter.
Notwithstanding any other provision of this Paragraph 7.4., if the
underwriter reasonably determines that marketing factors require a
limitation on the number of shares to be underwritten, the
underwriter may (subject to the allocation priority set forth
below) exclude some or all Registrable Securities from such
registration and underwriting. The COMPANY shall advise all HOLDERS
requesting registration, of the number of Registrable Securities
that may be included in the registration and underwriting and
allocate, pro rata, among HOLDERS of the Registrable Securities such
permitted number of Registrable Securities. Any Registrable
Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
7.5. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
this Section 7. shall be borne by the COMPANY and Selling Expenses shall
be borne by the HOLDER; provided however, that if any jurisdiction in
which the securities shall be qualified shall require that expenses
incurred in connection with the qualification of the securities in that
jurisdiction be borne by the selling shareholders, then such expenses
shall be payable by the selling shareholders pro rata, to the extent
required by such jurisdiction. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
a registration exclusively of the Registrable Securities shall be borne by
the COMPANY and Selling Expenses shall be borne by the HOLDER.
7.6. REGISTRATION PROCEDURES. In the case of each registration
effected by the COMPANY pursuant to this Section 7., the COMPANY will keep
each HOLDER advised in writing as to the initiation of each registration
and as
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to the completion thereof. At its expense the COMPANY will:
7.6.1. Keep such registration effective for a period of 120
days or until the HOLDER or HOLDERS have completed the distribution
described in the registration statements relating thereto, whichever
first occurs; and,
7.6.2. Furnish such number of prospectuses and other documents
incident thereto as a HOLDER from time to time may reasonably
request.
7.7. INDEMNIFICATION.
7.7.1. The COMPANY will indemnify each HOLDER, with respect to
which registration, qualification or compliance has been effected
pursuant to this Section 7., against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other
document (including any related registration statement, notification
or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any violation by
the COMPANY of any rule or regulation promulgated under the ACT
applicable to the COMPANY and relating to action or inaction
required of the COMPANY in connection with any such registration,
qualification or compliance, and will reimburse each such HOLDER,
for any legal and other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage,
liability or action, including the same on Appeal; provided, that
the COMPANY will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or
is based upon written information furnished to the COMPANY by an
instrument duly executed by such HOLDER and stated to be
specifically for use therein.
7.7.2. Each HOLDER will, if securities held by him are
included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the
COMPANY, each of its directors and officers, each legal counsel and
independent accountant of the COMPANY, each underwriter, if any, of
the COMPANY'S securities covered by such a registration statement,
each person who controls the COMPANY or such underwriter within the
meaning of the ACT, and each other such HOLDER against all claims,
losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue
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statement (or alleged untrue statement) of a material fact contained
in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse
the COMPANY and such HOLDERS, directors, officers, persons,
underwriters and control persons for any legal or any other expenses
reasonably incurred in connection with investigation or defending
any such claim, loss, damage, liability or action, including the
same on Appeal, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the COMPANY by
an instrument duly executed by such HOLDER and stated to be
specifically for use therein.
7.7.3. Each party entitled to indemnification under this
Paragraph 7.7. (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claims or any
litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense
at such Indemnified Party's expense. The failure of any Indemnified
Party to give notice as provided herein shall relieve the
Indemnifying Party of its obligations under this Paragraph 7.7. only
if such failure is prejudicial to the ability of the Indemnifying
Party to defend such action, and such failure shall in no event
relieve the Indemnifying Party of any liability that it may have to
any Indemnified Party otherwise than under this Paragraph 7.7. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant
or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
7.8. INFORMATION BY HOLDER. Each HOLDER of securities included in
any registration shall furnish to the COMPANY such information regarding
such HOLDER and the distribution proposed by such HOLDER as the COMPANY
may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 7.
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7.9. LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES. Any
registration rights given by the COMPANY to any HOLDER or prospective
HOLDER of its securities shall be consistent with the registration rights
in this Section 7. and with the rights of the HOLDERS provided in this
Agreement.
7.10. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may
permit the sale of the Restricted Securities to the public without
registration, the COMPANY agrees to:
7.10.1. Make and keep public information available as those
terms are understood and defined in Rule 144 under the ACT, at all
times.
7.10.2. Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the
COMPANY under the ACT and the Securities and Exchange Act of 1934,
as amended;
7.11. TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
COMPANY to register securities of the COMPANY under Paragraph 7.4. may be
assigned to a transferee of any of the Restricted Shares which are not
sold to the public; provided, that the COMPANY is given written notice at
the time of or within a reasonable time after said transfer, stating the
name and address of said transferee and identifying the securities with
respect to which such registration rights are being assigned.
7.12. "MARKET STAND-OFF" AGREEMENT. If requested by the COMPANY and
an underwriter of Common Stock (or other securities) of the COMPANY, the
HOLDER agrees not to sell or otherwise transfer or dispose of any Common
Stock (or other securities) of the COMPANY held during the ninety (90) day
period following the effective date of a registration statement of the
COMPANY filed under the ACT. Such agreement shall be in writing in form
satisfactory to the COMPANY and such underwriter. The COMPANY may impose
stop-transfer instructions with respect to the shares (or securities)
subject to the foregoing restrictions until the end of said (90) day
period.
8. DEMAND REGISTRATION. In lieu of HOLDER'S piggy back right set forth in
Section 7. as to the STOCK issuable upon exercise of the OPTION, the HOLDER may
demand the COMPANY in each fiscal year of this Stock Option Agreement to cause
to be registered under the ACT a percentage of the STOCK issuable upon the
exercise of the OPTION, such percentage of SHARES being equal to the results
obtained when the highest U.S. income tax bracket is added to the medicare tax
rate (currently 2.9%). COMPANY shall pay all Registration Expenses ( as defined
in Subparagraph 7.1.4.). and HOLDERS shall pay all Selling Expenses (as defined
in Subparagraph
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7.1.5.) incurred or to be incurred by the COMPANY in such registration. In any
registration statement filed by the COMPANY pursuant hereto the provisions of
Paragraph 7.7. shall apply.
9. ADJUSTMENTS TO STOCK ISSUABLE UPON EXERCISE OF OPTION.
9.1. An appropriate and proportionate adjustment shall be made in
the maximum number and/or kind of securities allocated to this OPTION,
without change in the aggregate purchase price applicable to the
unexercised portion of the outstanding OPTION, but with a corresponding
adjustment in the price for each share of STOCK or other unit of any
security covered by this OPTION upon the COMPANY'S issuance of New
Securities. New Securities shall mean any common stock or preferred stock
of the COMPANY, whether now authorized or not, and rights, options or
warrants to purchase said common stock or preferred stock, and securities
of any type whatsoever that are, or may become, convertible into said
common stock or preferred stock; provided, New Securities does not include
(i) securities issued pursuant to any COMPANY Employee Stock Bonus Plan or
Warrants or options outstanding on the DATE OF GRANT or options issued,
after the DATE OF GRANT pursuant to any COMPANY Stock Option Plan (ii)
securities offered to the public pursuant to a registration statement
under the ACT or pursuant to an exemption under the ACT; (iii) securities
issued pursuant to the acquisition of another entity by the COMPANY,
purchase of substantially all of another entity's assets; or, any other
reorganization whereby the COMPANY owns more or less than fifty percent
(50.0%) of the voting power of a corporation; (iv) up to twenty percent
(20.0%) of the bonus STOCK issued to employees of the COMPANY; (v)
securities issued in satisfaction, in whole or in part of the COMPANY'S
indebtedness; (vi) securities issued in conjunction with capital raising
activities for services rendered to the COMPANY. Except as provided for in
this Section 9. if the outstanding shares of STOCK of the COMPANY are
increased, decreased, changed into or exchanged for a different number or
kind of STOCK or securities of the COMPANY or stock of a different par
value or without par value, through reorganization, recapitalization,
reclassification, stock dividend, stock split; or, reverse stock split,
the appropriate and proportionate adjustment shall be made hereunder,
9.2. Upon the effective date of the dissolution or liquidation of
the COMPANY, or of a reorganization, merger or consolidation of the
COMPANY with one or more corporations or entities in which the COMPANY
will not survive as an independent, publicly owned corporation, or of a
transfer of substantially all the property or more than eighty percent
(80.0%) of the then outstanding STOCK of the COMPANY to another
corporation or entity, any OPTION granted hereunder shall be exercisable
until the effective date of such event and terminate and be of no further
force or effect on such effective date
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unless provision be made, in writing, in connection with such
transaction for the assumption of this OPTION, or the substitution of
this OPTION of new options covering the shares of a successor
corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to number and kind of stock and prices, in which event
this OPTION or the new options substituted therefor, shall continue in
the manner and under the terms so provided. In the event of such
dissolution, liquidation, reorganization, merger, consolidation,
transfer of assets or transfer of STOCK, and if provision is not made
in such transaction for the assumption of this OPTION or the
substitution for this OPTION of new options covering the shares of a
successor corporation or a parent or subsidiary thereof, then the
HOLDER shall be entitled, prior to the effective date of any such
transaction, to purchase the full number of shares of STOCK under this
OPTION which he would otherwise have been entitled to purchase during
the remaining term of such OPTION. Upon the first purchase of shares of
STOCK pursuant to a tender offer or exchange offer, other then by the
COMPANY, for all or any part of the STOCK, the HOLDER shall be
entitled, prior to the termination date of any such tender offer, to
purchase the full number of shares of STOCK under this OPTION which he
otherwise would have been entitled to purchase during the remaining
term of such OPTION.
9.3. Adjustments under this Section 9. shall be made by the
COMPANY'S Board of Directors, whose determination as to what adjustments
shall be made, and the extent thereof, shall be final, binding and
conclusive. No fractional shares of STOCK shall be issued hereunder or any
such adjustment.
10. STOP TRANSFER ORDERS AND RESTRICTIVE LEGENDS. The COMPANY shall not be
required (i) to transfer on its books any Restricted Securities issued upon the
exercise of this OPTION or any rights associated therewith which shall have been
sold or transferred in violation of the provisions set forth in this Agreement;
or, (ii) to treat as owner of such Restricted Securities or to accord the right
to vote as such owner or to pay dividends or to register such Restricted
Securities to any transferee to whom any such Restricted Securities have be so
transferred. The COMPANY may place stop transfer orders with its transfer agent
against the transfer of Restricted Securities issued upon the exercise of the
OPTION in violation of the provisions of this Agreement. Further, certificates
evidencing Restricted Securities issued upon the exercise of the OPTION shall
bear the following restrictive legend:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933, as amended ("ACT"). the shares may not be sold or transferred
or an exemption therefrom under the "ACT".
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11. MISCELLANEOUS.
11.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties, covenants, indemnifications and agreements
made by any party in this Agreement, or in any exhibit, schedule,
certificate, document or list delivered by any such party pursuant hereto
shall survive the effective date of the transactions contemplated hereby.
Each party hereto shall be entitled to rely upon the representations and
warranties of the other party or parties.
11.2. PERFORMANCE. In the event of a default on the part of the
COMPANY, the HOLDER shall have the right, in addition to any other
remedies which may be available, to obtain specific performance of the
terms of this STOCK OPTION AGREEMENT. Should any party default in the
performance of the terms and conditions of this STOCK OPTION AGREEMENT or
any other agreement referred to herein which results in the filing of a
lawsuit for damages, or other remedy, or should HOLDER file suit for
specific performance, the prevailing party in such lawsuit shall be
entitled to recover reasonable attorneys' fees and court costs from the
losing party, including the same on appeal.
11.3. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon
the respective legal representatives, successors and permitted assigns of
the parties hereto.
11.4. EFFECT AND CONSTRUCTION OF THIS AGREEMENT. This STOCK OPTION
AGREEMENT, the AGREEMENT and the exhibits and schedules hereto embody the
entire agreement and understanding between the parties and supersede any
and all prior agreements, arrangements, and understandings relating to
matters provided for herein. In the event of a conflict between the terms
of this STOCK OPTION AGREEMENT and the AGREEMENT, the provisions of the
AGREEMENT shall control. The captions are for convenience only and will
not control or effect the meaning or construction of the provisions of
this STOCK OPTION AGREEMENT. This STOCK OPTION AGREEMENT may be executed
in one or more counterparts and all such counterparts shall constitute one
and the same instrument. The singular shall include the plural, the plural
shall include the singular and one gender shall include all genders. If
any provision of this STOCK OPTION AGREEMENT shall be held to be invalid
or unenforceable by a Court of competent jurisdiction, such invalidity or
unenforceability shall attach only to such provisions and shall not in any
way affect, effect, or render invalid or unenforceable any other provision
of this STOCK OPTION AGREEMENT and this STOCK OPTION AGREEMENT shall be
carried out as if such invalid or unenforceable provision were not
contained herein.
11.5. COOPERATION. Subject to the terms and conditions herein
provided, each of the parties hereto shall use its best efforts to take,
or cause to be taken, such action to execute and deliver, or cause to be
executed and
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delivered, such additional documents and instruments and to do, or cause
to be done, all things necessary, proper or advisable under the provisions
of this Agreement and under applicable law to consummate and make
effective the transactions contemplated by this STOCK OPTION AGREEMENT.
11.6. NOTICES. All notices required or permitted hereunder shall be
in writing and shall be deemed to be properly given when personally
delivered to the party entitled to receive the notice or when sent by
certified or registered mail, postage prepaid and properly addressed to
the party entitled to receive such notice at the address stated above:
11.7. WAIVER, DISCHARGE, ETC. This Agreement may not be released,
discharged, abandoned, changed or modified in any manner, except by an
instrument in writing signed on behalf of each of the parties hereto and
in the case of the COMPANY by its duly authorized officers or
representatives. The failure of any party hereto to enforce at any time
any of the provisions of this Agreement shall in no way be construed to be
a waiver of any such provision, nor in any way to effect the validity of
this Agreement or any part thereof or the right of any party thereafter to
enforce each and every such provision. No waiver of any breach of this
Agreement shall be held to be a waiver of any other or subsequent breach.
11.8. RIGHTS OF PERSONS NOT PARTIES. Nothing contained in this
Agreement shall be deemed to create rights in persons not parties hereto,
other than the successors and permitted assigns of the parties hereto.
11.9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida unless such
laws conflict with Nevada statutory provisions in which case such
statutory provisions would apply, without reference to Florida's conflict
of laws provision.
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IN WITNESS WHEREOF the Parties have executed this instrument as of the
date and year above written.
Universal Medical System, Inc.,
a Florida Corporation
By:
----------------------------------- ---------------------------------------
Witness ▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO and
President
Attested:
----------------------------------- ---------------------------------
Witness Printed Name ▇▇▇▇▇▇ ▇. ▇▇▇▇, as Secretary and
General Counsel
-----------------------------------
Witness
-----------------------------------
Witness Printed Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Enterprises, Ltd.,
a Florida Limited Partnership
By:
----------------------------------- ------------------------------
Witness ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, General
Partner
-----------------------------------
Witness Printed Name
-----------------------------------
Witness
-----------------------------------
Witness Printed Name
14
