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EXHIBIT 10.28
No. 8-032
THE OPTION TO PURCHASE SHARES OF THE COMMON STOCK OF ESAT, INC., REPRESENTED BY
THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"ACT"), AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
UNDER THE ACT. NEITHER THE OPTIONS NOR THE UNDERLYING SHARES MAY BE OFFERED FOR
SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF SAID CORPORATION AND SUCH FURTHER RESTRICTIONS AS THE BOARD OF
DIRECTORS MAY DETERMINE.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT effective as of this 15 day of March, 2000, between
eSat, Inc., a Nevada corporation (the "Corporation"), and MARK BASILE (the
"Recipient").
WHEREAS, the Corporation, by action of the Board of Directors on December
2000, has authorized the granting of stock options to purchase 150,000 shares of
this Corporation's common stock, $.001 par value ("Common Stock"), to MARK
BASILE at an exercise price of $ 4.187 per share.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy
whereof is hereby acknowledged, the Corporation and the Optionee agree as
follows:
1. Grant of Option. The Corporation hereby grants to MARK BASILE an option to
purchase (the "Option") an aggregate of 150,000 shares of the
Corporation's common stock for a purchase price of $ 4.187 per share (the
"Option Price").
2. Vesting of Option. This option shall vest as to 50,000 of the shares
covered hereby on the one year anniversary and 50,000 of the shares
covered hereby on the second year anniversary of the date of Grant and
50,000 of the shares covered herby on the third year anniversary of the
date of Grant.
3. Exercise of Option. Except as otherwise provided in Sections 3, 4, & 6 of
this Agreement, this Option may be exercised in whole or in part at any
time during the term of the Option, provided, however, no portion of this
Option shall be exercisable after the expiration of the term thereof.
4. Manner of Exercise.
(a) During the lifetime of the Recipient, only he/she may exercise
the Option or any portion thereof. After the death of the
Recipient, any exercisable portion of the Option may, prior to
the time when the Option becomes unexercisable under Section 3.3,
be exercised by the Recipient's personal representative or by any
person empowered to do so under the Recipient's will or under the
then applicable laws of descent and distribution.
(b) The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary or the Secretary's office of
all of the following prior to the time when such exercisable
Option or portion thereof becomes unexercisable:
(i) Notice in writing signed by the Recipient, or such other
person then entitled to exercise the Option or portion thereof,
stating that the Option or portion thereof is thereby exercised,
such notice complying with all applicable rules established by
the Corporation; and
(ii) (a) Full payment (in cash or by check) for the shares with
respect to which such Option or portion thereof is
exercised; or
(b) With the consent of the Corporation, shares of the
Company's Common Stock owned by the Recipient duly
endorsed for transfer to the Company with a Fair Market
Value on
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the date of delivery equal to the aggregate
purchase price of the shares with respect to which such
Option or portion thereof is exercised.
5. Term of Option. The term of the Option will be through March 15, 2004,
subject to Paragraphs 7 and 8 as provided in this Agreement.
The Recipient of the Option will not have any rights to dividends or any
other rights of a shareholder with respect to any shares of Common Stock
subject to the Option until such shares shall have been purchased through
the exercise of the Option and has been evidenced on the stock transfer
records of the Corporation maintained by the Corporation's transfer agent.
6. Performance Restrictions. The Recipient of this Option will not have the
right to exercise this Option until confirmation by the Board of Directors
that the following performance goals have been completed:
NONE.
7. Transferability Restriction. The Option may not be assigned, transferred
or otherwise disposed of, or pledged or hypothecated in any way (whether
by operation of law or otherwise) (1) without the consent of the
Corporation, and (2) such transfer is not in violation of the Securities
Act of 1933, the Corporate Securities Laws of the State of Nevada, or the
securities laws of any state. Any assignment, transfer, pledge,
hypothecation or other disposition of the Option or any attempt to make
any such levy of execution, attachment or other process not in accordance
with the foregoing sentence shall cause the Option to terminate
immediately upon the happening of any such event, and the Recipient shall
lose all rights under this agreement, provided, however, that any such
termination of the Option under the foregoing provisions of this Paragraph
6, will not prejudice any rights or remedies which the Corporation may
have under this Agreement or otherwise.
8. Death, Disability or Retirement of Recipient. The Recipient's rights to
exercise this Option upon the death, disability or retirement of the
Recipient are set forth as follows:
(a) If the Recipient ceases to be in Service to the Corporation for a
reason other than permanent disability or death, the Recipient must,
within (2) months after the date of termination of such Service, but
in no event after the Option's stated expiration date, exercise some
or all of the Options that the Recipient was entitled to exercise on
the date the Recipient's Service terminated. All options which have
not vested in accordance with Section will thereafter be void for all
purposes. If the Recipient ceases to be in Service to the Corporation
by reason of permanent disability within the meaning of section
22(e)(3) of the Internal Revenue Code (as determined by the Board of
Directors), the Recipient will have two (2) months after the date of
termination of Service, but in no event after the stated expiration
date of the Recipient's Options, to exercise Options that the
Recipient was entitled to exercise on the date the Recipient's Service
terminated as a result of the disability.
(b) If a Recipient dies while in the Corporation's Service, any Options
that the Recipient was entitled to exercise on the date of death will
be exercisable within the six-month period following the date of
issuance of letters testamentary or letters of administration of a
deceased Recipient, in the case of the Recipient's death during his
Service to the Corporation's Board, but not later than one year after
the Recipient's death or until the stated expiration date of the
Recipient's Option, whichever occurs first, by the person or persons
("successors") to whom the Recipient's rights pass under a will or by
the laws of descent and distribution. As soon as practicable after
receipt by the Corporation of such notice and of payment in full of
the Option Price, a certificate or certificates representing the
Optioned Shares shall be registered in the name or names specified by
the successors in the written notice of exercise and shall be
delivered to the successors.
(c) The term "Service" means service as an employee, as an independent
contractor, or an employee of an independent contractor.
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9. No Registration Obligation. The Recipient understands that the Option is
not registered under the Securities Act of 1933, as amended (the
"Securities Act") and the Corporation has no obligation to register under
the Securities Act the Option or any of the shares of Common Stock subject
to and issuable upon the exercise of the Option. The Recipient represents
that the Option is being acquired by him for investment and acknowledges
that all certificates for the shares issued upon exercise of the Option
will bear the following legend unless such shares are registered under the
Securities Act prior to their issuance:
The shares of Common Stock evidenced by this certificate have
been issued to the registered owner in reliance upon written
representations that these shares have been purchased solely for
investment. These shares may not be sold, transferred or
assigned unless in the opinion of the Corporation and its legal
counsel such sales, transfer or assignment will not be in
violation of the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
The Recipient further understands and agrees that the Option may be
exercised only if at the time of such exercise the Recipient and the
Corporation are able to establish the existence of an exemption from
registration under the Securities Act and applicable state laws.
10. Effect of Certain Changes.
(a) If there is any change in the number of shares of outstanding Common
Stock through the declaration of stock dividends, or through a
recapitalization resulting in stock splits or combinations or
exchanges of such shares, the number of shares of Common Stock
available for Options and the number of such shares covered by
outstanding Options, and the exercise price per share of the
outstanding Options, shall be proportionately adjusted by the Board to
reflect any increase or decrease in the number of issued shares of
Common Stock: provided, however, that any fractional shares resulting
from such adjustment shall be eliminated.
(b) In the event of the proposed dissolution or liquidation of the
Corporation, or any corporate separation or division, including, but
not limited to, split-up, split-off or spin-off, or a merger or
consolidation of the Corporation with another corporation, or any sale
or transfer by the Corporation of all or substantially all its assets
or any tender offer or exchange offer for or the acquisition, directly
or indirectly, by any person or group for more than 50% of the then
outstanding voting securities of the Corporation, the Board may
provide that the Recipient shall have the right to exercise such
Option (at its then current Option Price) solely for the kind and
amount of shares of stock and other securities, property, cash or any
combination thereof receivable upon such dissolution, liquidation,
corporate separation or division, merger or consolidation, sale or
transfer of assets or tender offer or exchange offer, by a Recipient
of the number of shares of Common Stock for which such Option might
have been exercised immediately prior to such dissolution,
liquidation, corporate separation or division, or merger or
consolidation: sales or transfer of assets or tender offer or exchange
offer, or in the alternative the Board may provide that each Option
granted herein shall terminate as of a date fixed by the Board:
provided, however, that not less than 30 day's written notice of the
date so fixed shall be given to the Recipient, who shall have the
right, during the period of 30 days preceding such termination, to
exercise the Option.
(c) Paragraph (b) of this Section 10 shall not apply to a merger or
consolidation in which the Corporation is the surviving corporation
and shares of Common Stock are not converted into or exchanged for
stock, securities of any other corporation, cash or any other thing of
value. Notwithstanding the preceding sentence, in case of any
consolidation or merger of another corporation into the Corporation in
which the Corporation is the surviving corporation and in which there
is a reclassification or change (including a change which results in
the right to receive cash or other property) of the shares of Common
Stock (other than a change in par value, or from no par value to par
value, or as a result of a subdivision or combination, but including
any change in such shares into two or more classes or series of
shares), the Board may provide that the Recipient shall have the right
to exercise such Option solely for the kind and amount of shares of
stock and other securities (including those of any direct or indirect
Parent of the Corporation), property, cash or any combination thereof
receivable upon such reclassification, change
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consolidation or merger by the Recipient of the number of shares of
Common Stock for which Option might have been exercised.
(d) If there is a change in the Common Stock of the Corporation as
presently constituted, which is limited to a change of all of its
authorized shares with par value into the same number of shares with a
different par value or without par value, the shares resulting from
any such change shall be deemed to be the Common Stock within the
meaning of this Stock Option Agreement.
(e) To the extent that the foregoing adjustments relate to stock or
securities of the Corporation, such adjustments shall be made by the
Board.
(f) Except as expressly provided in this Section 10, the Recipient shall
have no rights by reason of any subdivision or consolidation of shares
of stock of any class or the payment of any stock dividend or any
other increase in the number of shares of stock of any class or by
reason of any dissolution, liquidation, merger, or consolidation or
split-up, split-off, or spin-off of assets or stock of another
corporation; and any issue by the Corporation of shares of stock of
any class, or securities convertible into shares of stock of any
class, shall not effect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Common Stock
subject to this Option. The grant of this Option shall not affect in
any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structures or to merge or consolidate or to dissolve,
liquidate or sell or transfer all or any part of its business or
assets.
11. Notices. Each notice relating to this Agreement will be in writing and
delivered in person or by certified mail to the proper address. Notices to
the Corporation shall be addressed to the Corporation c/o President, eSat,
Inc., 16520 Harbor Blvd., Bldg, G, Fountain, Valley, CA 92708. Notices to
the Recipient or other person or persons then entitled to exercise the
Option shall be addressed to the Recipient or such other person or persons
at the Recipient's address specified below. Anyone to whom a notice may be
given under this Agreement may designate a new address by notice to that
effect given pursuant to this Paragraph 11
12. Approval of Consent. The exercise of the Option and the issuance and
delivery of shares of Common Stock pursuant thereto shall be subject to
approval by the Corporation's counsel of all legal matters in connection
therewith, including compliance with the requirements of the Securities
Act, the Securities Exchange Act of 1934, as amended, applicable state
securities laws, the rules and regulations thereunder, and the
requirements of any national securities exchange or association upon which
the Common Stock than may be listed.
13. Benefits of Agreement. This Agreement will inure to the benefit of and be
binding upon each successor and assign of the Corporation. All obligations
imposed upon the Recipient and all rights granted to the Corporation under
this Agreement will be binding upon the Recipient" heirs, legal
representatives and successors.
14. Governmental and Other Regulations. The exercise of the Option and the
Corporation's obligation to sell and deliver shares upon the exercise of
rights to purchase shares is subject to all applicable federal and state
laws, rules and regulations, and to such approvals by the regulatory or
governmental agency which, in the opinion of counsel for the Corporation,
may be required.
15. Conditions to Exercise. The shares of stock deliverable upon the exercise
of the Option, or any portion thereof, may be either previously authorized
but unissued shares or issued shares which have then been reacquired by
the Company. Such shares shall be fully paid and non-assessable. The
Company shall not be required to issue or deliver any certificate or
certificates for shares of stock purchased upon the exercise of the Option
or portion thereof prior to fulfillment of all of the following
conditions:
(i) The admission of such shares to listing on all stock exchanges,
if any, on which such class of stock is then listed;
(ii) The completion of any registration or other qualification of such
shares under any state or federal law or under the rulings or
regulations of the Securities and Exchange Commission or any
other
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governmental regulatory body, which the Corporation shall,
in its absolute discretion, deem necessary or advisable;
(iii) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Corporation shall, in
its absolute discretion, determine to be necessary or advisable;
(iv) The payment to the Company of all amounts which it is required to
withhold under federal, state or local law in connection with the
exercise of the Option; and
(v) The lapse of such reasonable period of time following the
exercise of the Option as the Corporation may from time to time
establish for reasons of administrative convenience.
This Stock Option Agreement is executed in the name and on behalf of the
Corporation by one of its duly authorized officers and by the Recipient all as
of the date first above written.
ESAT, INC.
By
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The undersigned Recipient understands the terms of this Option
Agreement. The undersigned agrees to comply with the terms and conditions of
this Option Agreement.
Date___________, 2000 Signature:_______________________________
Printed Name:____________________________
Tax ID # (SSN):__________________________
Address:_________________________________
_________________________________
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