E-40
Exhibit No. 5
Form 10-XX
XXX, Inc.
STOCK OPTION AGREEMENT
Option for the Purchase of 100,000 Shares of Common Stock
Par Value $0.001
THE HOLDER OF THIS OPTION, BY ACCEPTANCE HEREOF, BOTH WITH
RESPECT TO THE OPTION AND COMMON STOCK ISSUABLE UPON
EXERCISE OF THE OPTION, AGREES AND ACKNOWLEDGES THAT THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY
STATE. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE TRANSFERRED OR SOLD IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT OR OTHER COMPLIANCE UNDER
THE SECURITIES ACT OR THE LAWS OF THE APPLICABLE STATE OR A
"NO ACTION" OR INTERPRETIVE LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER, AND ITS COUNSEL, TO THE EFFECT
THAT THE SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT AND SUCH STATE STATUTES.
This is to certify that, for value received, Xxx
Xxxxx (the "Optionee") is entitled to purchase from XXX,
INC. (the "Company"), on the terms and conditions
hereinafter set forth, all or any part of 100,000 shares
("Option Shares") of the Company's common stock, par value
$0.001 (the "Common Stock"), at the purchase price of $2.00
per share ("Option Price"). Upon exercise of this option in
whole or in part, a certificate for the Option Shares so
purchased shall be issued and delivered to the Optionee,
upon presentation and surrender to the Company of the duly
executed form of purchase attached hereto accompanied by
payment of the purchase price of each share purchased either
in cash or by certified or bank cashier's check payable to
the order of the Company. If less than the total option is
exercised, a new option of similar tenor shall be issued for
the unexercised portion of the options represented by this
Agreement. Upon such exercise, the Company shall issue and
cause to be delivered with all reasonable dispatch (and in
any event within 10 business days of such exercise) to or
upon the written order of the Optionee at its address, and
in the name of the Optionee, a certificate or certificates
for the number of full Option Shares issuable upon the
exercise together with such other property (including cash)
and securities as may then be deliverable upon such
exercise. Such certificate or certificates shall be deemed
to have been issued and the Optionee shall be deemed to have
become a holder of record of such Option Shares as of the
date of the surrender of the purchase form.
This option is granted subject to the following
further terms and conditions:
1. This option to purchase 100,000 common shares
shall vest and become exercisable at any time commencing on
March 1, 1999, and continuing through June 1, 2010.
2. The Optionee acknowledges that the shares subject
to this option have not and will not be registered as of the
date of exercise of this option under the Securities Act or
the securities laws of any state. The Optionee acknowledges
that this option and the shares issuable on exercise of the
option, when and if issued, are and will be "restricted
securities" as defined in Rule 144 promulgated by the
Securities and Exchange Commission and must be held
indefinitely unless subsequently registered under the
Securities Act and any other applicable state registration
requirements.
3. The number of Option Shares purchasable upon the
exercise of this option and the Option Price per share shall
be subject to adjustment from time to time subject to the
following terms. If the outstanding shares of Common Stock
of the Company are increased, decreased, changed into or
exchanged for a different number or kind of shares of the
Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse
stock split, the Company or its successors and assigns shall
make an appropriate and proportionate adjustment in the
number or kind of shares, and the per-share Option Price
thereof, which may be issued to the Optionee under this
Agreement upon exercise of the options granted under this
Agreement. The purchase rights represented by this option
shall not be exercisable with respect to a fraction of a
share of Common Stock. Any fractional shares of Common
Stock arising from the dilution or other adjustment in the
number of shares subject to this option shall rounded up to
the nearest whole share.
4. The Company covenants and agrees that all Option
Shares which may be delivered upon the exercise of this
option will, upon delivery, be free from all taxes, liens,
and charges with respect to the purchase thereof; provided,
that the Company shall have no obligation with respect to
any income tax liability of the Optionee and the Company
may, in its discretion, withhold such amount or require the
Optionee to make such provision of funds or other
consideration as the Company deems necessary to satisfy any
income tax withholding obligation under federal or state
law.
5. The Company agrees at all times to reserve or hold
available a sufficient number of shares of Common Stock to
cover the number of Option Shares issuable upon the exercise
of this and all other options of like tenor then
outstanding.
6. This option shall not entitle the holder hereof to
any voting rights or other rights as a shareholder of the
Company, or to any other rights whatsoever, except the
rights herein expressed, and no dividends shall be payable
or accrue in respect of this option or the interest
represented hereby or the Option Shares purchasable
hereunder until or unless, and except to the extent that,
this option shall be exercised..
7. The holder of this option, by acceptance hereof,
acknowledges and agrees that this option is not transferable
by the Optionee except by will or the laws of descent or
distribution. The Company may deem and treat the registered
owner of this option as the absolute owner hereof for all
purposes and shall not be affected by any notice to the
contrary.
8. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any
applicable law, such invalidity or unenforceability shall
not be construed as rendering any other provisions contained
herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same
extent as though the invalid or unenforceable provision were
not contained herein.
9. This Agreement shall be governed by and construed
in accordance with the internal laws of the state of Utah,
without regard to the principles of conflicts of law
thereof.
10. Except as otherwise provided herein, this
Agreement shall be binding on and inure to the benefit of
the Company and the person to whom an option is granted
hereunder, and such person's heirs, executors,
administrators, legatees, personal representatives,
assignees, and transferees.
IN WITNESS WHEREOF, the Company has caused this option
to be executed by the signature of its duly authorized
officer, effective this 15th day of January 1998.
XXX, INC.
By /s/ Xxxx Xxxxxx,
Treasurer
The undersigned Optionee hereby acknowledges receipt of a
copy of the foregoing option and acknowledges and agrees to
the terms and conditions set forth in the option.
/s/ Xxx Xxxxx
STOCK OPTION AGREEMENT
Option for the Purchase of 291,250 Shares of Common Stock
Par Value $0.001
THE HOLDER OF THIS OPTION, BY ACCEPTANCE HEREOF, BOTH WITH
RESPECT TO THE OPTION AND COMMON STOCK ISSUABLE UPON
EXERCISE OF THE OPTION, AGREES AND ACKNOWLEDGES THAT THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY
STATE. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE TRANSFERRED OR SOLD IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT OR OTHER COMPLIANCE UNDER
THE SECURITIES ACT OR THE LAWS OF THE APPLICABLE STATE OR A
"NO ACTION" OR INTERPRETIVE LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER, AND ITS COUNSEL, TO THE EFFECT
THAT THE SALE OR TRANSFER IS EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT AND SUCH STATE STATUTES.
This is to certify that, for value received, Xxx
Xxxxx (the "Optionee") is entitled to purchase from XXX,
INC. (the "Company"), on the terms and conditions
hereinafter set forth, all or any part of 291,250 shares
("Option Shares") of the Company's common stock, par value
$0.001 (the "Common Stock"), at the purchase price of $2.00
per share ("Option Price"). Upon exercise of this option in
whole or in part, a certificate for the Option Shares so
purchased shall be issued and delivered to the Optionee,
upon presentation and surrender to the Company of the duly
executed form of purchase attached hereto accompanied by
payment of the purchase price of each share purchased either
in cash or by certified or bank cashier's check payable to
the order of the Company. If less than the total option is
exercised, a new option of similar tenor shall be issued for
the unexercised portion of the options represented by this
Agreement. Upon such exercise, the Company shall issue and
cause to be delivered with all reasonable dispatch (and in
any event within 10 business days of such exercise) to or
upon the written order of the Optionee at its address, and
in the name of the Optionee, a certificate or certificates
for the number of full Option Shares issuable upon the
exercise together with such other property (including cash)
and securities as may then be deliverable upon such
exercise. Such certificate or certificates shall be deemed
to have been issued and the Optionee shall be deemed to have
become a holder of record of such Option Shares as of the
date of the surrender of the purchase form.
This option is granted subject to the following
further terms and conditions:
1. This option to purchase 291,250 common shares
shall vest and become exercisable at any time commencing on
April 1, 1999, and continuing through March 1, 2008.
2. The Optionee acknowledges that the shares subject
to this option have not and will not be registered as of the
date of exercise of this option under the Securities Act or
the securities laws of any state. The Optionee acknowledges
that this option and the shares issuable on exercise of the
option, when and if issued, are and will be "restricted
securities" as defined in Rule 144 promulgated by the
Securities and Exchange Commission and must be held
indefinitely unless subsequently registered under the
Securities Act and any other applicable state registration
requirements.
3. The number of Option Shares purchasable upon the
exercise of this option and the Option Price per share shall
be subject to adjustment from time to time subject to the
following terms. If the outstanding shares of Common Stock
of the Company are increased, decreased, changed into or
exchanged for a different number or kind of shares of the
Company through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse
stock split, the Company or its successors and assigns shall
make an appropriate and proportionate adjustment in the
number or kind of shares, and the per-share Option Price
thereof, which may be issued to the Optionee under this
Agreement upon exercise of the options granted under this
Agreement. The purchase rights represented by this option
shall not be exercisable with respect to a fraction of a
share of Common Stock. Any fractional shares of Common
Stock arising from the dilution or other adjustment in the
number of shares subject to this option shall rounded up to
the nearest whole share.
4. The Company covenants and agrees that all Option
Shares which may be delivered upon the exercise of this
option will, upon delivery, be free from all taxes, liens,
and charges with respect to the purchase thereof; provided,
that the Company shall have no obligation with respect to
any income tax liability of the Optionee and the Company
may, in its discretion, withhold such amount or require the
Optionee to make such provision of funds or other
consideration as the Company deems necessary to satisfy any
income tax withholding obligation under federal or state
law.
5. The Company agrees at all times to reserve or hold
available a sufficient number of shares of Common Stock to
cover the number of Option Shares issuable upon the exercise
of this and all other options of like tenor then
outstanding.
6. This option shall not entitle the holder hereof to
any voting rights or other rights as a shareholder of the
Company, or to any other rights whatsoever, except the
rights herein expressed, and no dividends shall be payable
or accrue in respect of this option or the interest
represented hereby or the Option Shares purchasable
hereunder until or unless, and except to the extent that,
this option shall be exercised..
7. The holder of this option, by acceptance hereof,
acknowledges and agrees that this option is not transferable
by the Optionee except by will or the laws of descent or
distribution. The Company may deem and treat the registered
owner of this option as the absolute owner hereof for all
purposes and shall not be affected by any notice to the
contrary.
8. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any
applicable law, such invalidity or unenforceability shall
not be construed as rendering any other provisions contained
herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same
extent as though the invalid or unenforceable provision were
not contained herein.
9. This Agreement shall be governed by and construed
in accordance with the internal laws of the state of Utah,
without regard to the principles of conflicts of law
thereof.
10. Except as otherwise provided herein, this
Agreement shall be binding on and inure to the benefit of
the Company and the person to whom an option is granted
hereunder, and such person's heirs, executors,
administrators, legatees, personal representatives,
assignees, and transferees.
IN WITNESS WHEREOF, the Company has caused this option
to be executed by the signature of its duly authorized
officer, effective this 15th day of January 1998.
XXX, INC.
By /s/ Xxxx Xxxxxx,
Treasurer
The undersigned Optionee hereby acknowledges receipt of a
copy of the foregoing option and acknowledges and agrees to
the terms and conditions set forth in the option.
/s/ Xxx Xxxxx
