CASHLESS
OPTION TO PURCHASE COMMON STOCK
OF
EUROPA CRUISES CORPORATION
This is to Certify that, FOR VALUE RECEIVED, _____________________________
or permitted assigns ("Holder"), is entitled to purchase, subject to the
provisions of this Option, from EUROPA CRUISES CORPORATION, a Delaware
corporation (the "Company"), __________ shares of the Company's Common Stock,
$.001 par value ("Common Stock"), at a price of $______ per share at any time
during the period from ____________, 1996 to 5:00 p.m. Daylight Savings Time on
_____________, 2001, at which time this Option shall expire and become void. The
number of shares of Common Stock to be received upon exercise of this Option and
the price to be paid for each share of Common Stock may be adjusted from time to
time as hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Option Shares", and the exercise price per share of Common Stock in
effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "Exercise Price." Unless the content otherwise requires, the
term "Option" as used herein includes this Option and any other Option or
Options which may be issued pursuant to the provisions of this Option, whether
upon transfer, assignment, partial exercise, division, combination, exchange or
otherwise, and the term "Holder" includes any transferee or transferees or
assignee or assignees of the Holder named above limited, however, to the terms
of Section (d) herein restricting transfer of this Option, and, when used with
reference to Option Shares, means the holder or holders of such Option Shares.
1. EXERCISE OF OPTION. This Option may be exercised in whole or in part at
any time or from time to time on or after _____________, 1996 and before 5:00
p.m., Daylight Savings Time, on _____________, 2001, or if either such day is a
day on which banking institutions in the City of Washington, D.C. are authorized
by law to close, then on the next succeeding day which shall not be such a day,
by presentation and surrender hereof to the Company at its principal office, or
at the office of its stock transfer agent, if any, with the Purchase Form
annexed hereto duly executed and accompanied by payment of the Exercise Price
for the number of Option Shares specified in such form. If this Option should be
exercised in part only, the Company shall, upon presentation of this Option upon
such exercise, accompanied by the payment of the price for the Option Shares
exercised, execute and deliver a new Option evidencing the rights of the Holder
hereof to purchase the balance of the Option Shares purchasable hereunder. Upon
receipt by the Company or its stock transfer agent of this Option, in proper
form for exercise, the Holder shall be deemed to be the holder of record of the
Option Shares issuable upon such exercise notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Option Shares shall not then be actually delivered to the
Holder.
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(A) CASH EXERCISE. Payment for the shares may be made in cash (or by
certified or cashier's check) or in any combination of cash or securities of the
Company delivered to the Company at its principal office in the State of Florida
on the date specified in the notice referred to in Paragraph 2 above; provided,
however, that such date shall not exceed ninety (90) days from the date of such
notice, as specified in Paragraph 2 hereinabove, unless otherwise agreed in
writing by the Company.
(B) CASHLESS EXERCISE. If payment is made in whole or in part by
surrendering shares of the Company's Common Stock and/or options to purchase
Common Stock, the number of shares that will be issued by the Company in
exchange for such securities issued by the Company shall be determined as
follows: (a) with respect to the surrender of Common Stock by dividing the fair
market value of the surrendered shares by the purchase price for the shares
purchased pursuant to this Agreement; and (b) with respect to the surrender of
options to purchase Common Stock by dividing the fair market value of the
Company's Common Stock minus the purchase price by the purchase price. The term
"purchase price" refers to the price as set forth in Paragraph 4 of this
Agreement.
The fair market value of the Company's Common Stock surrendered to the
Company in payment for the shares shall be determined by the closing bid price
of the Company's Common Stock on the date of exercise as reported in the next
business day's edition of the WALL STREET JOURNAL. If payment is made in whole
or in part by surrendering Common Stock or Common Stock Purchase Options issued
by the Company, such securities must already be owned by the optionee at the
time of exercise.
2. RESERVATION OF SHARES. The Company hereby agrees that at all times
until this Option expires there shall be reserved for issuance and/or delivery
upon exercise of this Option such number of shares of its Common Stock as shall
be required for issuance or delivery upon exercise of this Option.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Option. With respect
to any fraction of a share called for upon exercise hereof, the Company shall
pay to the Holder an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as follows:
(A) If the Common Stock is listed on a national securities exchange
or admitted to unlisted trading privileges on such exchange, the current market
value shall be the last reported sale price of the Common Stock on such exchange
on the last business day prior to the date of exercise of this Option or, if no
such sale is made on such day, the last reported sales price of the Common Stock
on such exchange on the last preceding day on which a sale was made; or
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(B) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the last
reported bid and asked prices reported by the Nasdaq National Market System on
the last business day prior to the date of the exercise of this Option; or
(C) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the current
market value shall be an amount, not less than book value, determined in such
reasonable manner as may be prescribed by the Board of Directors of the Company.
4. EXCHANGE, ASSIGNMENT OR LOSS OF OPTION. This Option is exchangeable,
without expense, at the option of the Holder, upon presentation and surrender
hereof to the Company or at the office of its stock transfer agent, if any, for
other Options of different denominations entitling the Holder thereof to
purchase in the aggregate the same number of shares of Common Stock purchasable
hereunder. Notwithstanding anything herein contained, this Option is not
transferable or assignable except that it may be transferred or assigned in
whole or in part by will or by the laws of descent and distribution upon the
death of any Holder (transfers and assignments of the kind of referred to in the
foregoing clause, being hereinafter sometimes referred to as a "Permitted
Transfer"). Any Permitted Transfer or assignment as aforesaid of this Option
shall be made by surrender of this Option to the Company or at the office of its
stock transfer agent, if any, with the Assignment Form annexed hereto duly
executed and accompanied by funds sufficient to pay any transfer tax. Upon such
surrender, the Company shall, without charge, execute and deliver a new Option
in the name of the transferee or assignee named in such instrument of transfer
or assignment, and this Option shall promptly be cancelled. This Option may be
divided or combined with other Options which carry the same rights upon
presentation hereof at the office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations on which new Options are to be issued and signed by the Holder
hereof. Upon receipt by the Company of evidence satisfactory to it of the loss
theft, destruction or mutilation of this Option, and (in the case of loss, theft
or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Option, if mutilated, the Company shall execute and
deliver a new Option of like tenor and date. Any such new Option executed and
delivered shall constitute an additional contractual obligation on the part of
the Company, whether or not this Option so lost, stolen, destroyed, or mutilated
shall be at any time enforceable by anyone.
5. RIGHTS OF THE HOLDER. The holder of this Option shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at law
or equity, and the rights of such Holder are limited to those expressed in this
Option and are not enforceable against the Company except to the extent set
forth herein.
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6. ANTI-DILUTION PROVISIONS.
(A) The initial Exercise Price in effect during the term of this
Option shall be as stated in the first paragraph hereof. Should there be any
adjustment in the Exercise Price in accordance with the provisions of this
Section 6 at any time during the term hereof, the Exercise Price shall
immediately be adjusted in accordance with the provisions of this Section 6. to
an amount which is in the same ratio to the initial Exercise Price for each such
subsequent period (as set forth in said first paragraph) as the Exercise Price
for the immediately preceding day (as from time to time adjusted hereunder) is
to the initial Exercise Price for such immediately preceding period (as set
forth in said first paragraph).
(B) In case, prior to the expiration of this Option by exercise of
by its terms, the Company shall issue any shares of its Common Stock as a stock
dividend or subdivide the number of outstanding shares of Common Stock into a
greater number of shares, then, in either of such cases, the Exercise Price per
share of the Option Shares purchasable pursuant tot his Option in effect at the
time of such action shall at that time be proportionately reduced and the number
of Option Shares at that time purchasable pursuant to this Option shall be
proportionately increased; and, conversely, in the event the Company shall
contract the number of outstanding shares of Common Stock by combining such
shares into a smaller number of shares, then, in such case, the Exercise Price
per share of the Option Shares purchasable pursuant to this Option in effect at
the time of such action shall be proportionately increased and the number of
Option Shares at that time purchasable pursuant to this Option shall be
proportionately decreased. If the Company shall at any time prior to the
expiration of this Option by exercise or by its terms declare a dividend payable
in cash on its Common Stock and at substantially the same time offer its
stockholders a right to purchase Common Stock from the proceeds of such dividend
or for an amount substantially equal to such dividend, at a price less than the
then prevailing market price as computed in section (c)(1) and (2), then, in
such case, all Common Stock so issued shall, for purpose of this Option, be
deemed to have been issued as a stock dividend. Any dividend paid or distributed
upon the Common Stock in stock of any other class or securities convertible into
shares of Common Stock shall be treated as a dividend paid in Common Stock to
the extent that shares of Common Stock are issuable upon the conversion thereof.
(C) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Option or in case of any sale, lease or conveyance to another corporation of the
property and assets of the Company as an entirety or substantially as an
entirety, the Company shall, as a condition precedent to such transaction, case
effective provision to be made so that the Holder of this Option shall have the
right thereafter, by exercising this Option, to purchase the kind and amount of
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shares of stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
which might have been purchased upon exercise of this Option immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance. Any
such provision shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Option.
The foregoing provisions of this Section 6(c) shall similarly apply to
successive reclassifications, capital reorganizations and changes of changes of
Common Stock and to successive consolidations, mergers, sales or conveyances.
(D) SPIN OFFS. In the event the Company spins-off a subsidiary by
distributing to the shareholders of the Company as a dividend or otherwise the
stock of the subsidiary, the Company shall reserve for the life of the Option,
shares of the subsidiary to be delivered to the holders of the Option upon
exercise to the same extent as if they were owners or record of the Option
shares on the record date for payment of the shares of the Subsidiary.
(E) OFFICER'S CERTIFICATE. Whenever any adjustment in the Exercise
Price or number of Option Shares or other adjustment shall be required by the
provisions of Sections 6(b) and (c), the Company shall forthwith file in the
custody of its Secretary or any Assistant Secretary at its principal office and
with its stock transfer agent, if any, an officer's certificate showing all such
adjustments and setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number of Option Shares, if any, determined in accordance with the provisions of
Sections 6(b) and (c), and such other facts as shall be necessary to show the
reason for and the manner of computing such adjustment. Each such officer's
certificate shall be made available at all reasonable times for inspection by
any Holder, and the Company shall, forthwith after each such adjustment, mail a
copy by certified mail of such certificate to each Holder.
7. NOTICES TO OPTION HOLDER. So long as this Option shall be outstanding,
(i) if the Company shall pay any dividend or make any distribution upon the
Common Stock or (ii) if the Company shall offer to the holders of Common Stock
for subscription or purchase by them of any shares of stock of any class or any
rights or (iii) if any capital reorganization of the Company, reclassification
of the capital stock of the Company, consolidation or merger of the Company with
or into another corporation, sale, lease or transfer of all or substantially all
of the property and assets of the Company to another corporation, or voluntary
or involuntary dissolution, liquidation or winding up of the Company shall be
effected, then, in any such case, the Company shall cause to be mailed by
certified mail to the Holder, at least thirty days prior to the date specified
in (x) and (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date or expected date on
which (x) a record is to be taken for the purpose of such dividend, distribution
or rights, or (y) such reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to take place and
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the date, if any is to be fixed, or expected date as of which the holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
8. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(A) Upon the written request of ▇▇▇▇▇▇, or its assigns, the Company
will promptly take such steps as in the opinion of counsel for the Company, are
necessary to prepare the filing of and to process to effectiveness of a Form S-8
Registration Statement in order to permit a public offering of the Option Stock.
The Company shall pay all costs and expenses, including legal and accounting
fees and disbursements relating to such Form S-8 Registration Statement.
(B) If the Company should at any time file a Registration Statement
covering the offer and sale of any of its securities, the Company will at the
request of Holder include including all or part of the Option Shares in such
Registration Statement. Such inclusion shall be at the sole expense of the
Company. The Company will notify the Holder of Option Shares in writing of any
proposed filing pursuant to Section 8(b) at least thirty days prior thereto.
(C) The following provisions of this Section 8(c) shall also be
applicable:
(I) The Company shall upon the request of any Holder of Option
Shares forthwith supply such reasonable number of prospectuses
meeting the requirements of the Act as shall be requested by such
Holder to permit such Holder to make a public distribution of all
Option Shares from time to time offered or sold by such Holder,
provided that such Holder shall from time to time furnish the
Company with such appropriate information (relating to the
intentions of such Holder) in connection therewith as the Company
shall reasonably request in writing. The Company shall also use its
best efforts to qualify, at its expense, the Option Shares for sale
in such states as Holder may reasonably designate.
(II)(A) The Company shall indemnify and hold harmless each
Holder and each underwriter within the meaning of the Act who may
purchase from or sell for any Holder any Option Shares (and each
person, if any, who controls any such underwriter) against any and
all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation), joint or several, to which they
or any of them may become subject under the Act or under any other
statute or at common law or otherwise, and, except as hereinafter
provided, will reimburse each Holder and each underwriter (and each
such controlling person, if any) for any legal or other expenses
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reasonably incurred by them or any of them in connection with
investigating or defending any claims or actions, whether or not
resulting in any liability, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
or any post-effective amendment thereto or any registration
statement under the Act or any prospectus (preliminary or final)
included therein, or any amendment or supplement thereto, which is
required to be filed or furnished by reason of this Section or arise
out of or are based upon 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, except insofar as
such losses, claims, damages, expenses, liabilities or actions are
caused by any such untrue statement or omission (or allegation
thereof) made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Holder or
underwriter expressly for use in connection therewith and except
that the indemnification agreement contained in this Section shall
not inure to the benefit of any Holder or underwriter to the extent
that any such loss, claim, damage, liability or expense results from
the failure of such Holder or underwriter, when required to do so by
the Act, to send or give a copy of any prospectus, or any amendment
or supplement thereto, to any purchaser of the Option Shares or such
Holder is otherwise responsible for the content of such Registration
Statement by virtue of being an executive officer or director of the
Company. A person who controls any underwriter shall be covered by
the indemnity agreement in this Section for all such losses, claims,
damages, liabilities, expenses and actions irrespective of whether
they are based on Section 15 of the Act. The indemnity agreement in
this Section shall be in addition to any liability which the Company
may otherwise have.
(II)(B) Anything in Section to the contrary notwithstanding,
the Company shall not be obligated so to indemnify any Holder or
underwriter or controlling person unless such Holder or underwriter
shall agree to indemnify and hold harmless the Company, its
directors and officers, any person who is named in the Registration
Statement with his consent as about to become a director, and each
person, if any, who controls the Company within the meaning of
Section 15 of the Act against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of
investigation), joint or several, to which they or any of them may
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become subject under the Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, to reimburse
such persons for any legal or other expenses reasonably incurred by
them or any of them in connection with investigating or defending
any claims or actions, whether or not resulting in any liability,
insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereto or
any registration statement under the Act or any prospectus
(preliminary or final) included therein, or any amendment or
supplement thereto, which is required to be filed or furnished by
reason of this Section or arise out of or are based upon 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, but only to the extent that (i) such untrue
statement or alleged untrue statement, omission or alleged omission
is made in reliance upon and in conformity with information relating
to the Holder or underwriter furnished in writing by him or it or on
his or its behalf expressly for use in connection therewith or (ii)
such loss, claim, damage, liability or expense results from the
failure of the Holder or underwriter, when required to do so by the
Act, to send or give a copy of any prospectus, or any amendment or
supplement thereto, to any purchaser of the Option Shares or (iii)
such Holder is otherwise responsible for the contents of such
Registration Statement by virtue of being an executive officer or
director of the Company. The indemnity agreement in this Section
shall be in addition to any liability which the Holder or the
underwriter may otherwise have.
(II)(C) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying parties in writing of the commencement thereof;
provided that the omission so to notify any indemnifying party shall
not relieve such indemnifying party from any liability which such
indemnifying party may have to any indemnified party under this
Section except for losses sustained by reason of the failure to give
such notice. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying parties of
the commencement thereof, the indemnifying parties shall be entitled
to participate in, and, to the extent that they shall wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified
party, and after notice from the indemnifying parties to such
indemnified party of their election so to assume the defense
thereof, the indemnifying parties shall not be liable to such
indemnified party under such Section for any legal or other expenses
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subsequently incurred by such indemnified party in connection with
the defense thereof. Any indemnifying party shall not be liable to
any indemnified party on account of any settlement of any claim or
action effected without the consent of such indemnifying party.
(II)(D) The Company's agreements with respect to the Option
Shares in this Section shall continue in effect regardless of any
transfer, assignment, exercise or surrender of this Option.
9. TRANSFER TO COMPANY WITH THE SECURITIES ACT OF 1933.
(A) This Option is non-transferable and non-assignable except as set
forth above in Section 4. The Option Shares or any other security issued or
issuable upon exercise of this Option may not sold or otherwise disposed of
except as follows:
(I) To a person who, in the opinion of counsel reasonably
satisfactory to the Company is a person to whom the Option Shares
may legally be transferred without registration and without the
delivery of a current prospectus under the Act with respect thereto
and then only against receipt of an agreement of such person to
comply with the provisions of this Section 9 with respect to any
resale or other disposition of such securities unless, in the
opinion of such counsel, such agreement is not required; or
(II) To any person upon delivery of a prospectus then meeting
the requirements of the Act relating to such securities and the
offering thereof for such sale or disposition.
(B) Each certificate for Option Shares or for any other security
issued or issuable upon exercise of this Option shall contain a legend on the
face thereof, in form and substance satisfactory to counsel for the Company,
setting forth the restrictions on transfer thereof contained in Section 9(a).
Dated as of _____________, 1996
EUROPA CRUISES CORPORATION
By:____________________________
__________________, President
[Seal]
ATTEST:
__________________________________
____________________, Secretary
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PURCHASE FORM
Dated ______________, 19__
The undersigned hereby irrevocably elects to exercise the within Option to
the extent of purchasing __________ shares of Common Stock and hereby makes
payment of $_________ in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name______________________________________________________________________
(Please typewrite or print in block letters)
Address ______________________________________________________________
______________________________________________________________
Signature: ______________________________________
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CASH
OPTION TO PURCHASE COMMON STOCK
OF
EUROPA CRUISES CORPORATION
This is to Certify that, FOR VALUE RECEIVED, _____________________________
or permitted assigns ("Holder"), is entitled to purchase, subject to the
provisions of this Option, from EUROPA CRUISES CORPORATION, a Delaware
corporation (the "Company"), __________ shares of the Company's Common Stock,
$.001 par value ("Common Stock"), at a price of $______ per share at any time
during the period from ____________, 1996 to 5:00 p.m. Daylight Savings Time on
______________, 2001, at which time this Option shall expire and become void.
The number of shares of Common Stock to be received upon exercise of this Option
and the price to be paid for each share of Common Stock may be adjusted from
time to time as hereinafter set forth. The shares of Common Stock deliverable
upon such exercise, and as adjusted from time to time, are hereinafter sometimes
referred to as "Option Shares", and the exercise price per share of Common Stock
in effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "Exercise Price." Unless the content otherwise requires, the
term "Option" as used herein includes this Option and any other Option or
Options which may be issued pursuant to the provisions of this Option, whether
upon transfer, assignment, partial exercise, division, combination, exchange or
otherwise, and the term "Holder" includes any transferee or transferees or
assignee or assignees of the Holder named above limited, however, to the terms
of Section (d) herein restricting transfer of this Option, and, when used with
reference to Option Shares, means the holder or holders of such Option Shares.
1. EXERCISE OF OPTION. This Option may be exercised in whole or in part at
any time or from time to time on or after _____________, 1996 and before 5:00
p.m., Daylight Savings Time, on _____________, 2001, or if either such day is a
day on which banking institutions in the City of Washington, D.C. are authorized
by law to close, then on the next succeeding day which shall not be such a day,
by presentation and surrender hereof to the Company at its principal office, or
at the office of its stock transfer agent, if any, with the Purchase Form
annexed hereto duly executed and accompanied by payment of the Exercise Price
for the number of Option Shares specified in such form. If this Option should be
exercised in part only, the Company shall, upon presentation of this Option upon
such exercise, accompanied by the payment of the price for the Option Shares
exercised, execute and deliver a new Option evidencing the rights of the Holder
hereof to purchase the balance of the Option Shares purchasable hereunder. Upon
receipt by the Company or its stock transfer agent of this Option, in proper
form for exercise, the Holder shall be deemed to be the holder of record of the
Option Shares issuable upon such exercise notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such Option Shares shall not then be actually delivered to the
Holder.
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CASH EXERCISE. Payment for the shares may be made only in cash (or
by certified or cashier's check) delivered to the Company at its principal
office in the State of Florida on the date specified in the notice referred to
in Paragraph 2 above; provided, however, that such date shall not exceed ninety
(90) days from the date of such notice, as specified in Paragraph 2 hereinabove,
unless otherwise agreed in writing by the Company.
2. RESERVATION OF SHARES. The Company hereby agrees that at all times
until this Option expires there shall be reserved for issuance and/or delivery
upon exercise of this Option such number of shares of its Common Stock as shall
be required for issuance or delivery upon exercise of this Option.
3. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Option. With respect
to any fraction of a share called for upon exercise hereof, the Company shall
pay to the Holder an amount in cash equal to such fraction multiplied by the
current market value of such fractional share, determined as follows:
(A) If the Common Stock is listed on a national securities exchange
or admitted to unlisted trading privileges on such exchange, the current market
value shall be the last reported sale price of the Common Stock on such exchange
on the last business day prior to the date of exercise of this Option or, if no
such sale is made on such day, the last reported sales price of the Common Stock
on such exchange on the last preceding day on which a sale was made; or
(B) If the Common Stock is not so listed or admitted to unlisted
trading privileges, the current market value shall be the mean of the last
reported bid and asked prices reported by the Nasdaq National Market System on
the last business day prior to the date of the exercise of this Option; or
(C) If the Common Stock is not so listed or admitted to unlisted
trading privileges and bid and asked prices are not so reported, the current
market value shall be an amount, not less than book value, determined in such
reasonable manner as may be prescribed by the Board of Directors of the Company.
4. EXCHANGE, ASSIGNMENT OR LOSS OF OPTION. This Option is exchangeable,
without expense, at the option of the Holder, upon presentation and surrender
hereof to the Company or at the office of its stock transfer agent, if any, for
other Options of different denominations entitling the Holder thereof to
purchase in the aggregate the same number of shares of Common Stock purchasable
hereunder. Notwithstanding anything herein contained, this Option is not
transferable or assignable except that it may be transferred or assigned in
whole or in part by will or by the laws of descent and distribution upon the
death of any Holder (transfers and assignments of the kind of referred to in the
foregoing clause, being hereinafter sometimes referred to as a "Permitted
Transfer"). Any Permitted Transfer or assignment as aforesaid of this Option
shall be made by surrender of this Option to the Company or at the office of its
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stock transfer agent, if any, with the Assignment Form annexed hereto duly
executed and accompanied by funds sufficient to pay any transfer tax. Upon such
surrender, the Company shall, without charge, execute and deliver a new Option
in the name of the transferee or assignee named in such instrument of transfer
or assignment, and this Option shall promptly be cancelled. This Option may be
divided or combined with other Options which carry the same rights upon
presentation hereof at the office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations on which new Options are to be issued and signed by the Holder
hereof. Upon receipt by the Company of evidence satisfactory to it of the loss
theft, destruction or mutilation of this Option, and (in the case of loss, theft
or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Option, if mutilated, the Company shall execute and
deliver a new Option of like tenor and date. Any such new Option executed and
delivered shall constitute an additional contractual obligation on the part of
the Company, whether or not this Option so lost, stolen, destroyed, or mutilated
shall be at any time enforceable by anyone.
5. RIGHTS OF THE HOLDER. The holder of this Option shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at law
or equity, and the rights of such Holder are limited to those expressed in this
Option and are not enforceable against the Company except to the extent set
forth herein.
6. ANTI-DILUTION PROVISIONS.
(A) The initial Exercise Price in effect during the term of this
Option shall be as stated in the first paragraph hereof. Should there be any
adjustment in the Exercise Price in accordance with the provisions of this
Section 6 at any time during the term hereof, the Exercise Price shall
immediately be adjusted in accordance with the provisions of this Section 6. to
an amount which is in the same ratio to the initial Exercise Price for each such
subsequent period (as set forth in said first paragraph) as the Exercise Price
for the immediately preceding day (as from time to time adjusted hereunder) is
to the initial Exercise Price for such immediately preceding period (as set
forth in said first paragraph).
(B) In case, prior to the expiration of this Option by exercise of
by its terms, the Company shall issue any shares of its Common Stock as a stock
dividend or subdivide the number of outstanding shares of Common Stock into a
greater number of shares, then, in either of such cases, the Exercise Price per
share of the Option Shares purchasable pursuant tot his Option in effect at the
time of such action shall at that time be proportionately reduced and the number
of Option Shares at that time purchasable pursuant to this Option shall be
proportionately increased; and, conversely, in the event the Company shall
contract the number of outstanding shares of Common Stock by combining such
shares into a smaller number of shares, then, in such case, the Exercise Price
per share of the Option Shares purchasable pursuant to this Option in effect at
the time of such action shall be proportionately increased and the number of
Option Shares at that time purchasable pursuant to this Option shall be
proportionately decreased. If the Company shall at any time prior to the
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expiration of this Option by exercise or by its terms declare a dividend payable
in cash on its Common Stock and at substantially the same time offer its
stockholders a right to purchase Common Stock from the proceeds of such dividend
or for an amount substantially equal to such dividend, at a price less than the
then prevailing market price as computed in section (c)(1) and (2), then, in
such case, all Common Stock so issued shall, for purpose of this Option, be
deemed to have been issued as a stock dividend. Any dividend paid or distributed
upon the Common Stock in stock of any other class or securities convertible into
shares of Common Stock shall be treated as a dividend paid in Common Stock to
the extent that shares of Common Stock are issuable upon the conversion thereof.
(C) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Option or in case of any sale, lease or conveyance to another corporation of the
property and assets of the Company as an entirety or substantially as an
entirety, the Company shall, as a condition precedent to such transaction, case
effective provision to be made so that the Holder of this Option shall have the
right thereafter, by exercising this Option, to purchase the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, capital reorganization and other change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
which might have been purchased upon exercise of this Option immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance. Any
such provision shall include provision for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Option.
The foregoing provisions of this Section 6(c) shall similarly apply to
successive reclassifications, capital reorganizations and changes of changes of
Common Stock and to successive consolidations, mergers, sales or conveyances.
(D) SPIN OFFS. In the event the Company spins-off a subsidiary by
distributing to the shareholders of the Company as a dividend or otherwise the
stock of the subsidiary, the Company shall reserve for the life of the Option,
shares of the subsidiary to be delivered to the holders of the Option upon
exercise to the same extent as if they were owners or record of the Option
shares on the record date for payment of the shares of the Subsidiary.
(E) OFFICER'S CERTIFICATE. Whenever any adjustment in the Exercise
Price or number of Option Shares or other adjustment shall be required by the
provisions of Sections 6(b) and (c), the Company shall forthwith file in the
custody of its Secretary or any Assistant Secretary at its principal office and
with its stock transfer agent, if any, an officer's certificate showing all such
adjustments and setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the adjusted Exercise Price and adjusted
number of Option Shares, if any, determined in accordance with the provisions of
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Sections 6(b) and (c), and such other facts as shall be necessary to show the
reason for and the manner of computing such adjustment. Each such officer's
certificate shall be made available at all reasonable times for inspection by
any Holder, and the Company shall, forthwith after each such adjustment, mail a
copy by certified mail of such certificate to each Holder.
7. NOTICES TO OPTION HOLDER. So long as this Option shall be outstanding,
(i) if the Company shall pay any dividend or make any distribution upon the
Common Stock or (ii) if the Company shall offer to the holders of Common Stock
for subscription or purchase by them of any shares of stock of any class or any
rights or (iii) if any capital reorganization of the Company, reclassification
of the capital stock of the Company, consolidation or merger of the Company with
or into another corporation, sale, lease or transfer of all or substantially all
of the property and assets of the Company to another corporation, or voluntary
or involuntary dissolution, liquidation or winding up of the Company shall be
effected, then, in any such case, the Company shall cause to be mailed by
certified mail to the Holder, at least thirty days prior to the date specified
in (x) and (y) below, as the case may be, a notice containing a brief
description of the proposed action and stating the date or expected date on
which (x) a record is to be taken for the purpose of such dividend, distribution
or rights, or (y) such reclassification, reorganization, consolidation, merger,
conveyance, lease, dissolution, liquidation or winding up is to take place and
the date, if any is to be fixed, or expected date as of which the holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
8. REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(A) Upon the written request of ▇▇▇▇▇▇, or its assigns, the Company
will promptly take such steps as in the opinion of counsel for the Company, are
necessary to prepare the filing of and to process to effectiveness of a Form S-8
Registration Statement in order to permit a public offering of the Option Stock.
The Company shall pay all costs and expenses, including legal and accounting
fees and disbursements relating to such Form S-8 Registration Statement.
(B) If the Company should at any time file a Registration Statement
covering the offer and sale of any of its securities, the Company will at the
request of Holder include including all or part of the Option Shares in such
Registration Statement. Such inclusion shall be at the sole expense of the
Company. The Company will notify the Holder of Option Shares in writing of any
proposed filing pursuant to Section 8(b) at least thirty days prior thereto.
(C) The following provisions of this Section 8(c) shall also be
applicable:
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(I) The Company shall upon the request of any Holder of Option
Shares forthwith supply such reasonable number of prospectuses
meeting the requirements of the Act as shall be requested by such
Holder to permit such Holder to make a public distribution of all
Option Shares from time to time offered or sold by such Holder,
provided that such Holder shall from time to time furnish the
Company with such appropriate information (relating to the
intentions of such Holder) in connection therewith as the Company
shall reasonably request in writing. The Company shall also use its
best efforts to qualify, at its expense, the Option Shares for sale
in such states as Holder may reasonably designate.
(II)(AThe Company shall indemnify and hold harmless each
Holder and each underwriter within the meaning of the Act who may
purchase from or sell for any Holder any Option Shares (and each
person, if any, who controls any such underwriter) against any and
all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation), joint or several, to which they
or any of them may become subject under the Act or under any other
statute or at common law or otherwise, and, except as hereinafter
provided, will reimburse each Holder and each underwriter (and each
such controlling person, if any) for any legal or other expenses
reasonably incurred by them or any of them in connection with
investigating or defending any claims or actions, whether or not
resulting in any liability, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
or any post-effective amendment thereto or any registration
statement under the Act or any prospectus (preliminary or final)
included therein, or any amendment or supplement thereto, which is
required to be filed or furnished by reason of this Section or arise
out of or are based upon 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, except insofar as
such losses, claims, damages, expenses, liabilities or actions are
caused by any such untrue statement or omission (or allegation
thereof) made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Holder or
underwriter expressly for use in connection therewith and except
that the indemnification agreement contained in this Section shall
not inure to the benefit of any Holder or underwriter to the extent
that any such loss, claim, damage, liability or expense results from
the failure of such Holder or underwriter, when required to do so by
the Act, to send or give a copy of any prospectus, or any amendment
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or supplement thereto, to any purchaser of the Option Shares or such
Holder is otherwise responsible for the content of such Registration
Statement by virtue of being an executive officer or director of the
Company. A person who controls any underwriter shall be covered by
the indemnity agreement in this Section for all such losses, claims,
damages, liabilities, expenses and actions irrespective of whether
they are based on Section 15 of the Act. The indemnity agreement in
this Section shall be in addition to any liability which the Company
may otherwise have.
(II)(BAnything in Section to the contrary notwithstanding, the
Company shall not be obligated so to indemnify any Holder or
underwriter or controlling person unless such Holder or underwriter
shall agree to indemnify and hold harmless the Company, its
directors and officers, any person who is named in the Registration
Statement with his consent as about to become a director, and each
person, if any, who controls the Company within the meaning of
Section 15 of the Act against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of
investigation), joint or several, to which they or any of them may
become subject under the Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, to reimburse
such persons for any legal or other expenses reasonably incurred by
them or any of them in connection with investigating or defending
any claims or actions, whether or not resulting in any liability,
insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereto or
any registration statement under the Act or any prospectus
(preliminary or final) included therein, or any amendment or
supplement thereto, which is required to be filed or furnished by
reason of this Section or arise out of or are based upon 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, but only to the extent that (i) such untrue
statement or alleged untrue statement, omission or alleged omission
is made in reliance upon and in conformity with information relating
to the Holder or underwriter furnished in writing by him or it or on
his or its behalf expressly for use in connection therewith or (ii)
such loss, claim, damage, liability or expense results from the
failure of the Holder or underwriter, when required to do so by the
Act, to send or give a copy of any prospectus, or any amendment or
supplement thereto, to any purchaser of the Option Shares or (iii)
such Holder is otherwise responsible for the contents of such
Registration Statement by virtue of being an executive officer or
director of the Company. The indemnity agreement in this Section
shall be in addition to any liability which the Holder or the
underwriter may otherwise have.
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(II)(CPromptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying parties in writing of the commencement thereof;
provided that the omission so to notify any indemnifying party shall
not relieve such indemnifying party from any liability which such
indemnifying party may have to any indemnified party under this
Section except for losses sustained by reason of the failure to give
such notice. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying parties of
the commencement thereof, the indemnifying parties shall be entitled
to participate in, and, to the extent that they shall wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified
party, and after notice from the indemnifying parties to such
indemnified party of their election so to assume the defense
thereof, the indemnifying parties shall not be liable to such
indemnified party under such Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with
the defense thereof. Any indemnifying party shall not be liable to
any indemnified party on account of any settlement of any claim or
action effected without the consent of such indemnifying party.
(II)(DThe Company's agreements with respect to the Option
Shares in this Section shall continue in effect regardless of any
transfer, assignment, exercise or surrender of this Option.
9. TRANSFER TO COMPANY WITH THE SECURITIES ACT OF 1933.
(A) This Option is non-transferable and non-assignable except as set
forth above in Section 4. The Option Shares or any other security issued or
issuable upon exercise of this Option may not sold or otherwise disposed of
except as follows:
(I) To a person who, in the opinion of counsel reasonably
satisfactory to the Company is a person to whom the Option Shares
may legally be transferred without registration and without the
delivery of a current prospectus under the Act with respect thereto
and then only against receipt of an agreement of such person to
comply with the provisions of this Section 9 with respect to any
resale or other disposition of such securities unless, in the
opinion of such counsel, such agreement is not required; or
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(II) To any person upon delivery of a prospectus then meeting
the requirements of the Act relating to such securities and the
offering thereof for such sale or disposition.
(B) Each certificate for Option Shares or for any other security
issued or issuable upon exercise of this Option shall contain a legend on the
face thereof, in form and substance satisfactory to counsel for the Company,
setting forth the restrictions on transfer thereof contained in Section 9(a).
Dated as of _____________, 1996
EUROPA CRUISES CORPORATION
By:__________________________
___________________, President
[Seal]
ATTEST:
_____________________________________
________________________, Secretary
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PURCHASE FORM
Dated ______________, 19__
The undersigned hereby irrevocably elects to exercise the within Option to
the extent of purchasing __________ shares of Common Stock and hereby makes
payment of $_________ in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name______________________________________________________________________
(Please typewrite or print in block letters)
Address _____________________________________________________________
_____________________________________________________________
Signature: ______________________________________
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