EXHIBIT 4.4
KAHIKI FOODS, INC.
COMMON SHARE PURCHASE OPTION
Bob Binsky ("Optionee") is hereby granted this 24th day of January, 2004,
an Option to purchase 80,000 Common Shares ("Shares") of Kahiki Foods, Inc. (the
"Company"), subject to the terms and conditions hereof.
Section 1. Stock Purchase Price. The Option Price for purchase of such
Shares shall be One Dollar and Eighty Cents ($1.80) per share.
Section 2. Exercise of Option.
2.1. Time of Exercise. The Option must be exercised within two (2) years
from the date set forth above.
2.2. Method of Exercise of Option. The Optionee may exercise this
Option in whole or in part (but not as to a fractional share), by the surrender
of this Option, properly endorsed if required, at the office of the Company, or
such other address as the Company may designate by written notice to the
Optionee addressed to the Optionee at the Optionee's address appearing on the
records of the Company, accompanied by payment of the purchase price for such
shares by certified check or bank draft. Provided, however, that this Option may
not be exercised, to any extent by the Optionee after the expiration of the
Option.
2.3. Adjustment of Option Price. In the event any dividend upon the
Common Shares of the Company payable in Common Shares is declared by the
Company, or in case of any subdivision or combination of the outstanding Common
Shares of the Company, the number of shares shall be increased or decreased
proportionately so there shall be no change in the aggregate purchase price
payable upon the exercise of this Option. In the event of any other
recapitalization or any reorganization, merger, consolidation, or any other
change in the corporate structure or stock of the Company, the Board of
Directors of the Company shall make such adjustment, if any, as it may deem
appropriate, as to the number, kind and price of shares issuable pursuant to
this Option.
Upon the adjustment of the Option purchase price, or the number of
shares issuable pursuant to the Option, then, and in such cases, the Company
shall give written notice thereof by certified or registered mail, postage
prepaid, addressed to the Optionee at the address shown on the books of the
Company, which notice shall state the Option purchase price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable upon the exercise of this Option and setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based.
Section 3. Restrictions on Transferability of Shares Issuable Upon
Exercise of this Option.
3.1. Restricted Securities. This Option shall not be exercisable except
for a security which at the time of exercise (i) is exempt from registration
under the Securities Act of 1933, as amended, (ii) is exempt from registration
under applicable blue sky laws, and (iii) is exempt, is the subject matter of an
exempt transaction, or is registered under the Securities Act of 1933, as
amended. To this end, the Optionee may be required by the Company to give a
representation in writing that he is acquiring such shares for his own account
for investment and not with a view to, or for sale in connection with, the
distribution of any part thereof. If the Optionee is unwilling to give a
representation in writing that he is acquiring such shares for his own account
for investment as set forth herein, such Option shall immediately terminate and
the Optionee shall have no right to purchase any shares under such Option.
3.2. Share Restrictions. In addition to the restrictions relating to
unregistered securities set forth in this agreement, all shares issuable upon
exercise of this Option shall be subject to all other restrictions which may be
in effect, from time to time, as to the shares issued and outstanding of the
Company.
3.3. Legend. All share certificates issued pursuant to exercise of this
Option shall bear the following legend:
The securities represented by this Certificate have not been
registered under the Securities Act of 1993. These securities
may not be offered, sold, transferred, pledged or hypothecated
in the absence of registration under the Securities Act of
1933 or the
availability of an exemption therefrom. Furthermore, no offer,
sale, pledge or hypothecation of the securities represented by
this Certificate is to take place without the prior written
consent of counsel of the issuer being affixed to this
Certificate. The Company's share transfer agent has been
ordered to effectuate transfers of this Certificate only in
accordance with the above instructions.
Section 4. Restriction of Issuing Shares. The exercise of the Option
hereunder shall be subject to the condition that if at any time the Company
shall determine in its discretion that the satisfaction of withholding tax or
other withholding liabilities, or that the listing, registration, or
qualification of any shares otherwise deliverable upon the Option exercise upon
any securities exchange or under any state or federal law, or that the consent
or approval of any regulatory body, is necessary or desirable as a condition, or
in connection with, such exercise or the delivery or purchase of shares pursuant
thereto, then in any such event, such exercise shall not be effective unless
such withholding, listing, registration, qualification, consent, or approval
shall have been effected or obtained free of any conditions not acceptable to
the Company.
Section 5. Investment Intent. Optionee may be required upon exercise of
this Option to give a representation in writing that he is acquiring purchased
shares for his own account for investment and not with a view to, or for sale in
connection with, the distribution of any part thereof.
Section 6. Claim to Stock Ownership. Optionee shall not be nor have any
rights or privileges of a shareholder of the Company in respect to the shares
transferable upon exercise of the Option granted hereunder, unless and until
certificates representing such shares shall have been endorsed, transferred and
delivered and Optionee has caused his name to be entered as the shareholder of
record on the books for the Company.
Section 7. No Obligation to Exercise an Option. There shall be no
obligation upon the Optionee to exercise the Option.
Section 8. Governing Law. The granting and exercise of the Option
hereunder, as well as the obligation of the Company to sell and deliver shares
under the Option, shall be construed under and governed by the laws of the State
of Ohio, and subject to all applicable laws, rules, and regulations and to such
approval by any governmental agencies and national securities exchanges as may
be required.
I hereby certify that this Option is granted to the above named
Optionee.
KAHIKI FOODS, INC.
By:____________________________
Michael C. Tsao, President