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EXHIBIT B
▇▇▇▇▇ ▇▇▇▇▇▇▇ WIRELESS CORPORATION
STOCK PURCHASE OPTION AGREEMENT
This STOCK PURCHASE OPTION AGREEMENT (this "Agreement") is entered into
as of this 29th day of November, 2000, by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇ Wireless
Corporation, a Florida corporation (the "Company"), and Sterne, Agee & ▇▇▇▇▇
Group, Inc., a Delaware Corporation (the "Optionee").
WHEREAS, the Board of Directors of the Company (the "Board") has
granted the Optionee an option to purchase up to 200,000 shares of the Company's
common stock, $.01 par value per share, which option shall not vest except and
until the Optionee is required to satisfy that certain guaranty dated November
24, 2000 of up to $500,000 of that certain promissory note from Southern
Commerce Bank to the Company in the aggregate amount of $500,000 dated
November24, 2000("Guaranty"); and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows.
1. GRANT OF PURCHASE OPTION. Subject to the terms, restrictions,
limitations and conditions stated herein and contingent upon the satisfaction by
the Optionee of any part or all of the Guaranty, the Company hereby evidences
its grant to the Optionee of the right and option (the "Option") to purchase all
or any part of the number of shares ("Shares") up to 200,000 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), but only
such number of whole Shares as is equal to the number obtained from dividing the
dollar amount of the Guaranty satisfied by the Optionee by the Exercise Price
(as defined below). The Option shall expire and shall be of no further force and
effect upon the earlier to occur of the following: (i) that date upon which the
Guaranty expires with no obligation on the part of the Optionee or (ii) that
date which is 120 days following the date upon which the Optionee has fully
satisfied the Optionee's liability on the Guaranty.
2. PURCHASE PRICE. The price per Share to be paid by the Optionee for
the Shares subject to the Option shall be $2.50 per share ("Exercise Price")
which price shall be deemed paid by the Optionee's satisfaction of all or part
of the Guaranty as provided in Section 1 above and the delivery of the Release
(as defined in Section 4 below).
3. VESTING AND EXERCISABILITY. The Option vests and becomes fully
exercisable immediately upon the satisfaction of any part or all of the Guaranty
by the Optionee but only to such extent of the satisfaction of the Guaranty as
provided in Section 1 hereof.
4. NOTICE OF EXERCISE OF OPTION. The Option may be exercised by the
Optionee, or by the Optionee's administrators, executors or legal
representatives, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule A) signed by the Optionee, or by such
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administrators, executors or legal representatives, and delivered or mailed to
the Company as specified in Section 7 hereof to the attention of the President
or such other officer as the Company may designate. Any such notice shall (a)
specify the number of the Shares ("Exercise Shares") of Common Stock which the
Optionee or the Optionee's administrators, executors or legal representatives,
as the case may be, then elects to purchase hereunder and (b) be accompanied by
a release ("Release") of any claim by the Optionee of debt owed by the Company
to the Optionee arising from the Guaranty in an amount equal to the number of
Exercise Shares multiplied by $2.50/share. Upon receipt of any such Notice of
Exercise and Release, and subject to the terms hereof, the Company agrees to
issue to the Optionee or the Optionee's administrators, executors or legal
representatives, as the case may be, stock certificates for the Exercise Shares
specified in such Notice of Exercise registered in the name of the person
exercising the Option.
5. ANTIDILUTION.
(a) In the event that the outstanding shares of Common Stock
are changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of merger, consolidation, reorganization,
recapitalization, reclassification, combination or exchange of shares, stock
split or stock dividend, or in the event that any spin-off, split-up, split-off,
or other distribution of assets which materially affects the fair market value
of the Common Stock, the rights of the Optionee concerning the Shares (number of
shares of Common Stock, kind of security if other than Common Stock and the
Exercise Price) under the Option shall be adjusted proportionately by the Board.
(b) If the Company shall be a party to any reorganization in
which it does not survive, involving merger, consolidation, or acquisition of
the stock or substantially all the assets of the Company, the Board, in its
discretion, may:
(i) notwithstanding other provisions hereof, declare
that the Option granted herein shall become exercisable
immediately notwithstanding the provisions of this Agreement
regarding vesting and exercisability and that the Option shall
terminate 30 days after the Board gives written notice of the
immediate right to exercise the Option and of the decision to
terminate the Option not exercised within such 30-day period;
and/or
(ii) notify the Optionee that the Option shall be
assumed by the successor corporation or substituted on an
equitable basis with option issued by such successor
corporation.
(c) If the Company is to be liquidated or dissolved or
otherwise ceases to exist in connection with a reorganization described in
Section 5(b), the provisions of such section shall apply. In all other
instances, the adoption of a plan of dissolution or liquidation of the Company
shall, notwithstanding other provisions hereof, cause the Option to terminate to
the extent not exercised prior to the adoption of the plan of dissolution or
liquidation by the shareholders; PROVIDED THAT, notwithstanding other provisions
hereof, the Board may declare the Option to be exercisable
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at any time on or before the fifth business day following such adoption
notwithstanding the provisions of this Agreement regarding exercisability.
(d) The adjustments described in paragraphs (a) through (c) of
this Section 5, and the manner of their application, shall be determined by the
Board, and any such adjustment may provide for the elimination of fractional
share interests. The adjustments required under this Section 5 shall apply to
any successors of the Company and shall be made regardless of the number or type
of successive events requiring such adjustments.
6. COMPLIANCE WITH REGULATORY MATTERS. The Optionee acknowledges
that the issuance of capital stock of the Company is subject to limitations
imposed by federal and state law, and the Optionee hereby agrees that the
Company shall not be obligated to issue any Shares upon exercise of the Option
that would cause the Company to violate any law or any rule, regulation, order
or consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission) having jurisdiction over the affairs of the
Company. The Optionee shall provide the Company with such information and
representation as is reasonably requested by the Company or its counsel to
determine whether the issuance of the Exercise Shares complies with the
provisions described by this Section 6, including, without limitation, a
representation that the Optionee shall not sell or otherwise dispose of the
Exercise Shares in the absence of (i) registration of the Exercise Shares under
applicable federal and state securities laws, (ii) the sale of Exercise Shares
pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended or
(iii) pursuant to an exemption from such registration.
7. MISCELLANEOUS.
(a) This Agreement shall be binding upon the parties hereto
and their representatives, successors and assigns. Neither the Option nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by the Company without the prior written consent of the
Optionee which consent shall not be unreasonably withheld, conditioned or
delayed and any assignment in violation hereof shall be void. The Optionee,
however, may assign any or all of his, her or its rights and obligations
hereunder to any person, provided that such transfer (i) is made in accordance
with the federal and state securities laws and (ii) such person agrees in
writing to be bound by the terms of the Agreement.
(b) This Agreement is executed and delivered in, and shall be
governed by the laws of, the State of Florida.
(c) Any requests or notices to be given hereunder shall be
deemed given, and any elections or exercises to be made or accomplished shall be
deemed made or accomplished, upon actual delivery thereof to the designated
recipient, or three days after deposit thereof in the United States mail,
certified or registered, return receipt requested and postage prepaid,
addressed, if to the Optionee, at the address set forth below and, if to the
Company, to the executive offices of the Company at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
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(d) This Agreement may not be modified except in writing
executed by each of the parties hereto.
IN WITNESS WHEREOF, the Board has caused this Stock Purchase Option
Agreement to be executed on behalf of the Company and the Company's seal to be
affixed hereto and attested by the Secretary of the Company, and the Optionee
has executed this Stock Option Agreement under seal, all as of the day and year
first above written.
COMPANY:
▇▇▇▇▇ ▇▇▇▇▇▇▇ WIRELESS CORPORATION
Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Secretary Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[SEAL] Title: Chairman, Board of Directors
OPTIONEE:
STERNE, AGEE & ▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: CEO
Address: Sterne, Agee & ▇▇▇▇▇ Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE A
TO STOCK PURCHASE OPTION AGREEMENT BETWEEN
▇▇▇▇▇ ▇▇▇▇▇▇▇ WIRELESS CORPORATION AND
STERNE, AGEE & ▇▇▇▇▇ GROUP, INC.
Dated: _______ __, _____
NOTICE OF EXERCISE
The undersigned hereby notifies ▇▇▇▇▇ ▇▇▇▇▇▇▇ Wireless
Corporation (the "Company") of this election to exercise the undersigned's stock
purchase option to purchase_____________ shares of the Company's common stock,
par value $.01 per share, pursuant to the Stock Purchase Option Agreement
between the undersigned and the Company dated November 29, 2000. Accompanying
this Notice of Exercise is a release of liability addressed to the Company
releasing the Company of any and all debt of the Company to the Optionee arising
from satisfaction of the Guaranty by the Optionee which release is in the amount
of $________________.
IN WITNESS WHEREOF, the undersigned has set his hand and seal,
this __ day of ________________, ______.
OPTIONEE [OR OPTIONEE'S ADMINISTRATOR,
EXECUTOR OR LEGAL REPRESENTATIVE]
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Name:
Capacity (if other than Optionee):