OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Option Agreement") is made and entered into
as of the 4th day of April, 2000 by and between Xxx Xxxxxxx ("Optionor") and
JVWeb, Inc., a Delaware corporation ("Optionee").
RECITALS:
WHEREAS, Optionor owns shares of common stock, par value $.01 per share
("Common Stock"), in xXxxxxxxx.xxx, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, Optionee is also a stockholder in the Company; and
WHEREAS, Optionee is acquiring substantially all of the assets (the
"Acquired Assets") of a corporation of which Optionor is a 50% stockholder, and
in this connection, Optionee is paying 275,000 shares of Optionee's common stock
having an approximate value of $154,687.00; and
WHEREAS, Optionee is licensing the Acquired Assets to the Company on a
royalty-free basis; and
WHEREAS, the value of the Acquired Assets depends substantially upon
Optionor's continued service as the host of a radio talk show conducted with the
Acquired Assets titled "Homeline Talk Radio Show" (the "Radio Talk Show"), and
consequently the Acquired Assets and the Company may have little value if
Optionor ceases his service as such; and
WHEREAS, to protect its investment in the Acquired Assets and the
Company, Optionee wants Optionor to grant in favor of Optionee an option
(effective upon the occurrence of certain events) to purchase certain shares of
Common Stock (the "Optioned Shares") owned by Optionor (after taking into
account a proposed stock dividend or stock split to increase the number of
shares of Common Stock owned by Optionor to 1.5 million), and because Optionor
acknowledges that an option in favor of Optionee to purchase the Optioned Shares
is necessary to protect Optionee's investment in the Acquired Assets and the
Company, Optionor is willing to grant in favor of Optionee an option to purchase
the Optioned Shares, upon the terms, provisions and conditions set forth
hereinafter;
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by
Optionor and Optionee, the parties hereto hereby agree as follows:
1. Grant of Option. In consideration of and as an inducement to
Optionee's purchase of the Acquired Assets and the issuance of Optionee's common
stock in connection therewith, Optionor hereby grants to Optionee an irrevocable
option (the "Option") to acquire 750,000 shares of Common Stock owned by
Optionor (after taking into account a proposed stock dividend or stock split to
increase the number of shares of Common Stock owned by Optionor to 1.5 million),
which shares shall constitute the Optioned Shares, free and clear of all
encumbrances, security interests, liens, charges, claims and restrictions on the
transfer thereof, subject to the terms, provisions and conditions hereinafter
specified. Notwithstanding the preceding, the Option shall lapse with respect to
a batch of 250,000 share of Common Stock owned by Optionor (after taking into
account a proposed stock dividend or stock split to increase the number of
shares of Common Stock owned by Optionor to 1.5 million) on each of the first
three annual anniversaries of the date of this Agreement to the extent that the
Option remains unexercised with respect to such numbers of shares, and the
shares of Common Stock with respect to which the Option has lapsed shall cease
to be Optioned Shares for all purposes hereof. Optionor hereby agrees to submit
to Optionee upon execution of this Option Agreement stock certificates
representing at least 750,000 shares of Common Stock owned by Optionor so that a
legend can be placed thereon indicating the grant of the Option. Optionor hereby
agrees that any replacement stock certificates representing said Optioned Shares
shall bear a legend indicating the grant of the Option.
2. Cash Consideration for the Option. Contemporaneously with the full
execution and delivery of this Option Agreement, Optionee has paid to Optionor
the amount of $10.00 as additional consideration for the Option, the receipt,
adequacy and sufficiency of which are hereby acknowledged by Optionor.
3. Term. The Option is granted to Optionee as of the date hereof, and
shall expire at 5:00 p.m. Central Time on the third annual anniversary of the
date hereof (hereinafter referred to as the "Term Expiration Date"). The
period of time during which the
Option may be exercised is referred to hereinafter as the "Term".
4. Purchase Price. The per-share purchase price for the Optioned
Shares shall be $.01, which Optionor hereby acknowledges
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to be fair considering the conditions place upon which the effectiveness of the
Option.
5. Payment of Purchase Price. The purchase price for the Optioned
Shares (the "Purchase Price") shall be paid in its entirety in immediately
available funds at the closing of the sale and purchase of the Optioned Shares
pursuant to an exercise of the Option.
6. Conditions to Exercise of Option. The Option may be exercised
and Optioned Shares may be acquired in connection
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herewith only if one of the following conditions (a "Condition Precedent") has
occurred:
(a) Optionor ceases to serve as the host of the Radio Talk Show, either
voluntarily on his own initiative (other than as a result of death or disability
of Optionor) or through termination of Optionor as host by the Company for just
cause; or
(b) Optionor breaches his current employment agreement with the
Company.
In addition, the Option may be exercised and Optioned Shares may be
acquired in connection herewith only if Optionor has been paid (at the time of
exercise of the Option or at the time of the purchase of the Optioned Shares)
all amounts due to him under any and all employment, consulting or any other
similar agreements he has with the Company.
7. Procedure for Exercise of Option and Closing. The Option may be
exercised by Optionee, at any time or from time to time during the Term after a
Condition Precedent has occurred, by delivering to the Optionor, in accordance
with paragraph 10 of this Option Agreement, written notice of Optionee's desire
to exercise the Option. The written notice shall state the number of Optioned
Shares with respect to which Optionee then wants to exercise the Option, and
shall specify a date which shall not be less than ten (10) days after the date
of such notice, as the date on which the Optioned Shares will be taken up and
payment made therefor in immediately available funds. In the event of any
failure to pay for Optioned Shares on the date set forth in the notice, as the
same may be extended by written agreement of Optionor, the exercise of the
Option shall become void and Optionor may terminate the Option with respect to
the Optioned Shares indicated in the related written notice. Upon payment of the
purchase price for the related Optioned Shares, Optionor shall deliver the one
or more stock certificates representing the Optioned Shares to be sold and
purchased, in good form and duly endorsed for transfer or accompanied by a duly
executed stock power. In the event that the number of shares represented by the
one or more stock certificates delivered by Optionor pursuant to the preceding
sentence exceeds the number of Optioned Shares then being purchased by Optionee,
Optionee shall cause one or more other stock certificates representing the
residual Optioned Shares not purchased to be issued in the name of and delivered
to Optionor.
8. Adjustments.
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(a) If the outstanding shares of the Common Stock shall be subdivided
into a greater number of shares or a dividend in Common Stock shall be paid in
respect of Common Stock, the per-share purchase price of the Optioned Shares in
effect immediately prior to such subdivision or at the record date of such
dividend shall simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend be proportionately reduced.
If the outstanding shares of Common Stock shall be combined into a smaller
number of shares, the per-share purchase price of the Optioned Shares in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased.
(b) If there shall occur any capital reorganization or reclassification
of the Common Stock (other than a change in par value or a subdivision or
combination as provided for in subsection (a) immediately above), or any
consolidation or merger of the Company with or into another corporation, or a
transfer of all or substantially all of the assets of the Company, or the
payment of a liquidating distribution then, as part of any such reorganization,
reclassification, consolidation, merger, sale or liquidating distribution,
lawful provision shall be made so that Optionee shall have the right thereafter
to receive upon the exercise hereof (to the extent, if any, still exercisable)
the kind and amount of shares of stock or other securities or property which
Optionee would have been entitled to receive if, immediately prior to any such
reorganization, reclassification, consolidation, merger, sale or liquidating
distribution, as the case may be, Optionee had held the number of shares of
Common Stock which were then purchasable upon the exercise of the Option. In any
such case, appropriate adjustment shall be made in the application of the
provisions set forth herein with respect to the rights and interests thereafter
of Optionee such that the provisions set forth in this Section 8 (including
provisions with respect to adjustment of the per-share purchase price of the
Optioned Shares) shall thereafter be applicable, as nearly as is reasonably
practicable, in relation to any shares of stock or other securities or property
thereafter deliverable upon the exercise of the Option.
9. Governing Law and Jurisdiction. THIS OPTION AGREEMENT HAS BEEN
ENTERED INTO IN THE STATE OF TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. The parties hereto stipulate and
agree that the courts of the State of Texas shall have in personam jurisdiction
for any claim, lawsuit or proceeding regarding this Option Agreement, and that
mandatory venue for any such claim, lawsuit or proceeding shall be in any state
or federal court having competent jurisdiction located in Xxxxxx County, Texas.
The prevailing party in any proceeding brought pursuant to or with respect to
this Option Agreement shall be entitled to recover from the losing party all
reasonable attorneys' fees and costs incurred by the prevailing party in
connection with the proceeding.
10. Notices. Any notices, requests, demands, or other communications
herein required or permitted to be given shall be in writing and may be
personally served, sent by United States mail, or sent by an overnight courier
who keeps proper records regarding its deliveries. Notice shall be deemed to
have been given if personally served, when served, or if mailed, on the third
business day after deposit in the United States mail with postage pre-paid by
certified or registered mail and properly addressed, or if sent by overnight
courier as aforesaid with charges being billed to the sender, when received by
the party being notified. As used in this Option Agreement, the term "business
day" means days other than Saturdays, Sundays, and holidays recognized by
Federal banks. For purposes of this Option Agreement, the physical addresses of
the parties hereto shall be the physical addresses as set forth on the signature
pages of this Option Agreement. Any party to be notified hereunder may change
its physical address by notifying each other party hereto in writing as to the
new physical address for sending notices.
11. Headings. The headings of the paragraphs of this Option
Agreement have been inserted for convenience of reference
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only and shall in no way restrict or modify any of the terms or provisions
hereof.
12. Severability. If any provision of this Option Agreement is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this Option
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Option Agreement and
the remaining provisions of this Option Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Option Agreement.
13. Entire Agreement. This Option Agreement embodies the entire
agreement and understanding between the parties hereto
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with respect to the subject matter hereof and supersede all prior agreements and
understandings, whether written or oral, relating to
the subject matter hereof.
14. Binding Effect. This Option Agreement shall be binding upon and
shall inure to the benefit of each party hereto and its successors and assigns,
but neither this Option Agreement nor any rights hereunder may be assigned by
any party hereto without the consent in writing of the other party.
15. Cumulative Remedies. No remedy conferred by any of the specific
provisions of this Option Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
any party hereto shall not constitute a waiver of the right to pursue other
available remedies.
16. Specific Performance. Optionor hereby acknowledges that the Common
Stock is unique personal property, and that if the Optionor fails to tender the
Common Stock pursuant to a proper exercise of the Option, a court of competent
jurisdiction shall be entitled to enforce specifically this Agreement and to
require Optionor to tender the Common Stock as required hereby.
17. Binding Effect and Prohibition of Pledge. If any of the Option
Shares are transferred, the Option Shares transferred shall remain subject to
the Option, which may be exercised with respect to such Option Shares in
accordance with the provisions hereof. Optionor hereby agrees that, so long as
the Option is in effect, Optionor will not pledge any of the Option Shares, and
that any purported pledge shall be null and void.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement to be effective the date first set forth above.
"OPTIONOR"
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Address: #00 Xxxxxx Xxx
Xxxxxxxxxx, Xx. 00000
"OPTIONEE"
JVWEB, INC.
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
