EXHIBIT 10
FORM OF OPTION AGREEMENT
This OPTION AGREEMENT (the "Agreement") is dated as of September 24,
1999, by and between ROMPUS INTERACTIVE CORP. (the "Company") and - (the
"Optionee").
WHEREAS, the Company proposes to issue to the Optionee - options,
evidenced by option certificate number - (the "Options"), each such Option
entitling the holder thereof to purchase one share of Common Stock, $.0001
par value, of the Company (a "Share") at an exercise price of $0.80 per Share.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. OPTION CERTIFICATES. The Option Certificates to be
delivered pursuant to this Agreement (the "Option Certificates") shall be in
the form set forth in EXHIBIT A attached hereto and made a part hereof. The
Option Certificates shall be executed on behalf of the Company by its Chief
Executive Officer, President, or any Vice President and attested by its
Corporate Secretary or one of its Assistant Secretaries. Option Certificates
may be exchanged, at the Optionholder's option, when surrendered to the
Company for another Option Certificate or other Option Certificates of like
tenor and representing in the aggregate a like number of Options.
SECTION 2. RIGHT TO EXERCISE OPTIONS. Each Option may be exercised
at any time during the period from October 15, 1999 (the "Vesting Date"))
until 11:59 P.M. (Pacific Standard time) on September 30, 2002 (the
"Expiration Date"). The options shall fully vest on the Vesting Date. Each
Option not exercised on or before the Expiration Date shall expire. Subject
to the provisions of this Option Agreement, the holder of each Option shall
have the right to purchase from the Company, and the Company shall issue and
sell to each such Optionholder, at an initial exercise price per share of
$0.80, subject to adjustment as provided herein (the "Exercise Price"), one
fully paid and nonassessable Share upon surrender to the Company of the
Option Certificate evidencing such Option, with the form of election to
purchase duly completed and signed and evidence of payment of the Exercise
Price. Payment of the Exercise Price shall be made by wire transfer or check
to the Company. A check for the Exercise Price shall not be considered
delivered until good funds are received by the Company.
Upon surrender of such Option Certificate and payment of the Exercise
Price, the Company shall cause to be issued and delivered promptly to the
Optionholder a certificate for the Shares issuable upon the exercise of the
Option or Options evidenced by such Option Certificate. The Options
evidenced by an Option Certificate shall be exercisable at the election of
the Optionholder thereof, either in their entirety or from time to time for
less than all of the number of Options specified in the Option Certificate.
SECTION 3. RESERVATION OF SHARES. The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate
of its authorized but unissued Shares or its authorized and issued Shares
held in its treasury for the purpose of enabling it to satisfy any obligation
to issue Shares upon exercise of Options, the full number of Shares
deliverable upon the exercise of all outstanding Options. The Company
covenants that all Shares which may be issued upon exercise of Options will
be validly issued, fully paid and nonassessable outstanding Shares of the
Company.
18
SECTION 4. REGISTRATION UNDER THE SECURITIES ACT OF 1933. The
Optionee represents and warrants to the Company that the Optionee is
acquiring the Options for investment and with no present intention of
distributing or reselling any of the Options. The Optionee covenants not to
sell or otherwise transfer before September 24, 2000, any of the Options or
the Shares to be issued to the Optionee upon exercise of any of the Options.
The Shares and the certificate or certificates evidencing any such Shares
shall bear the following legend:
"THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT
IS AVAILABLE."
Certificates for Shares without such legend shall be issued if such shares
are sold pursuant to an effective registration statement under the SECURITIES
ACT OF 1933 or if the Company has received an opinion from counsel reasonably
satisfactory to counsel for the Company, that such legend is no longer
required under the Act. Certificates for Options or Shares shall also bear
such legends as may be required from time to time by law.
SECTION 5. REGISTRATION RIGHTS.
a. PIGGYBACK REGISTRATION RIGHTS. If the Company at any time proposes to
register any of its securities under the Act, including via an SB-2
Registration Statement or otherwise, it will each such time give written
notice to all holders of outstanding Shares and Options of its intention so
to do. The Company will use best efforts at the request of the Optionee, if
applicable, to register the shares underlying these options on a form S-8
registration statement. Upon the written request of a holder or holders of
any such Shares or Options given within 30 days after receipt of any such
notice, the Company will use its best efforts to cause all such Shares, the
holders of which (or of the Options for which upon exercise thereof the
Company will issue Shares) shall have so requested registration thereof, to
be registered under the Act (with the securities which the Company at the
time propose to register), all to the extent requisite to permit the sale or
other disposition by the prospective sellers of the Shares so registered;
provided, however, that the Company may, as a condition precedent to the
effectiveness of such registration, require each prospective seller to agree
with the Company and the managing underwriter or underwriters of the offering
to be made by the Company in connection with such registration that such
seller will not sell any securities of the same class or convertible into the
same class as those registered by the Company (including any class into which
the securities registered by the Company are convertible) for such reasonable
period after such registration becomes effective (not exceeding 30 days) as
shall then be specified in writing by such underwriter or underwriters if in
the opinion of such underwriter or underwriters the Company's offering would
be materially adversely affected in the absence of such an agreement. All
expenses incurred by the Company in complying with this Section, including
without limitation all registration and filing fees, listing fees, printing
expenses, fees and disbursements of all independent accounts, or counsel for
the Company and or counsel for the sellers and the expense of any special
audits incident to or required by any such registration and the expenses of
complying with the securities or blue sky laws of any jurisdiction shall be
paid by the Company. Notwithstanding the foregoing, sellers shall pay all
underwriting discounts or commissions with respect to shares sold by the
sellers. Notwithstanding the above, the Company shall not be obligated to
register the securities underlying the Options more often than every 120 days
in the case of an S-8 or every 365 days in the case of any other type of
registration statement.
b. INDEMNIFICATION.
(i) In the event of any registration of any of its Shares under
the Act pursuant to this Section, the Company hereby indemnifies and holds
harmless the sellers of such Shares (which phrase shall include any
underwriters of such Shares), their respective directors and officers, and
each other person who participates, in the offering of such Shares and each
other person, if any, who controls such sellers, or such participating
persons within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which each such seller or any such director
or officer or participating person or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement
19
or alleged untrue statement of any material fact contained, on the effective
date thereof, in any registration statement under which such Shares were
registered under the Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, 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; and will reimburse each such Seller and each
director, officer or participating or controlling person for any legal or any
other expenses reasonably incurred by such Seller or such director, officer
or participating or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, preliminary prospectus or
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company through an instrument duly
executed by such Seller specifically stating that it is for use therein.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Seller or such directors, officer
or participating or controlling person, and shall survive the transfer of
such Shares by such Seller.
(ii) Each holder of any Shares or Options shall by acceptance
thereof indemnify and hold harmless the Company and its directors and
officers, and each person, if any who controls the Company, against any
losses, claims, damages or liabilities, joint or several, to which the
Company or any director or officer or any such person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which Shares were registered under the Act at the request of such holder, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary prospectus, prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on behalf
of such holder specifically stating that it is for use therein; and will
reimburse the Company or such director, officer or person for any legal or
any other expense reasonably incurred in connection with investigation or
defending any such loss, claim, damage, liability or action.
c. RULE 144. If the Company shall be subject to the reporting
requirements of Section 13 of the 1934 ACT, the Company will use its best
efforts timely to file all reports required to be filed from time to time
with the Commission (including but not limited to the reports under Section
13 and 15(d) of the 1934 ACT referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Act). If there is a public market for
any Shares of the Company at any time that the Company is not subject to the
reporting requirements of either of said Section 13 or 15(d), the Company
will, upon the request of any holder of any Shares or Options, use its best
efforts to make publicly available the information concerning the Company
referred to in subparagraph (c)(2) of said Rule 144. The Company will
furnish to each holder of any shares or Options, promptly upon request, (i) a
written statement of the Company's compliance with the requirements of
subparagraphs (c)(1) or (c)(2), as the case may be, of said Rule 144, and
(ii) written information concerning the Company sufficient to enable such
holder to complete any Form 144 required to be filed with the Commission
pursuant to said Rule 144.
SECTION 6. NOTICES TO COMPANY AND THE OPTIONEE. Any notice or
demand authorized by this Agreement to be given or made by any registered
holder of any Option Certificate to or on the Company shall be sufficiently
given or made if sent by registered mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the holders) to the
Company as in the address set forth in the execution block of this Agreement.
SECTION 7. SUPPLEMENTS AND AMENDMENTS. The Company and the Optionee
may from time to time supplement or amend this Agreement without the approval
of any other Optionholders in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any provisions herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
20
Optionee may deem necessary or desirable and which the Company and the
Optionee deem shall not adversely affect the interests of the Optionholders.
SECTION 8. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Optionee shall bind and
inure to the benefit of their respective successors and assigns hereunder.
SECTION 9. GOVERNING LAW. This Agreement and each Option Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Florida and for all purposes shall be governed by and construed in
accordance with the laws of said State.
SECTION 10. COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The Parties agree that facsimile signatures of this Agreement
shall be deemed a valid and binding execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date and year first above written.
ROMPUS INTERACTIVE CORP.
By:
------------------------------ -----------------------------
Shawn Smith [INSERT NAME OF THE OPTIONEE]
Its: President
Address:
------------------------------
------------------------------
------------------------------
21
EXHIBIT A
OPTION CERTIFICATE
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
(OR OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE OPTIONS, SHARES OR OTHER SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
EXERCISABLE FROM 12:00 P.M. PACIFIC STANDARD TIME,
ON OCTOBER 15, 1999 UNTIL
11:59 P.M., PACIFIC STANDARD TIME ON SEPTEMBER 30, 2002
No. - - Options
OPTION CERTIFICATE
ROMPUS INTERACTIVE CORP.
This Option Certificate certifies that - (the "Optionee") or registered
assigns, is the registered holder of - Options (the "Options") expiring
September 30, 2002 (the "Expiration Date"), to purchase shares of Common
Stock (the "Shares") of ROMPUS INTERACTIVE CORP., a Florida corporation (the
"Company"). Each Option entitles the holder to purchase from the Company
before 11:59 p.m. (Pacific Standard time) on the "Expiration Date" one fully
paid and nonassessable share of Common Stock of the Company at the initial
exercise price for each Option of $0.80 per share (the "Exercise Price"),
upon surrender of this Option Certificate and payment of the Exercise Price
at an office or agency of the Company, but only subject to the terms and
conditions set forth herein and in the Option Agreement. Payment of the
Exercise Price may be permitted by check or wire transfer. Payment shall be
deemed accepted only upon the receipt of good funds by the Company. As used
herein, "Share" or "Shares" refers to the Common Stock of the Company. In the
event that upon any exercise of Options evidenced hereby, the number of
Options exercised shall be less than the total number of Options evidenced
hereby, there shall be issued to the holder hereof or his or her assignee a
new Option Certificate evidencing the number of Options not exercised. No
adjustment shall be made for any cash dividends on any Shares issuable upon
exercise of this Option.
No Option may be exercised after 11:59 P.M. (Pacific Standard Time) on
the Expiration Date. All Options evidenced hereby shall thereafter be void.
The Options evidenced by this Option Certificate are part of a duly
authorized issue of Options issued pursuant to an Option Agreement, dated
effective as of September 24, 1999 (the "Option Agreement"), duly executed by
the Company and the Optionee, which Option Agreement is hereby incorporated
by reference in and made a part of this instrument and is hereby referred to
for a description of the rights, limitation of rights, obligations, duties
and immunities thereunder of the Company and the holders (the words "holders"
or "holder" meaning the registered holders or registered holder of the Option
Certificates or Shares).
The Company may deem and treat the person(s) registered in the Company's
register as the absolute owner(s) of this Option Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof, and of any distribution to the holder(s)
hereof, and for all purposes, and the Company shall not be affected by any
notice to the contrary.
All terms used in this Option Certificate which are defined in the
Option Agreement shall have the meaning assigned to them in the Option
Agreement.
22
THE OPTIONS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON STOCK
(OR OTHER SECURITIES) ISSUABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE OPTIONS, SHARES OR OTHER SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
IN WITNESS WHEREOF, the Company has caused this Option Certificate to be
duly executed.
Dated: September 24, 1999 ROMPUS INTERACTIVE CORP.
By:
---------------------------
Shawn Smith
Its:President
Attested to:
By:
---------------------------
John Drewry
Its:Corporate Secretary
23
ELECTION TO PURCHASE
(To be executed upon exercise of Option)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Option Certificate, to purchase ______ Shares and
herewith authorizes payment for such Shares in the amount of $_____ all in
accordance with the terms hereof. The undersigned requests that certificates
for such Shares be registered as follows:
Name Number of Shares
---- ----------------
all of whose addresses are _______________________________________________
____________________________________________________, and that such
certificates be delivered to _______________________ whose address is
______________ ___________________________________________________. If said
number of Shares is less than all of the Shares purchasable hereunder, the
undersigned requests that a new Option Certificate representing the remaining
balance of the Shares be registered in the name of the undersigned, whose
address is _______________________________________________ and that such
Certificates be delivered to the attention of ___________________ at the
above address.
----------------------------------------
[IF CORPORATION, INSERT NAME HERE]
Dated: By:
-------------------- -------------------------------------
Its:
------------------------------------
----------------------------------------
[IF INDIVIDUAL, INSERT NAME HERE]
24