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EXHIBIT A TO SCHEDULE 13D
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (the "Agreement") is
entered into and effective as of October 15, 1997 between ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ Trust, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇ Neighbors (individually
an "Optionee" or collectively "Optionees") and ▇▇▇▇ ▇. and ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Family Trust ("Optionor").
R E C I T A L S
A. Optionor is the beneficial owner of no less than
1,700,000 shares of the common stock (the "Shares") of Mitek
Systems Inc., a Delaware corporation ("Mitek"). ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, a trustor of optionor is currently the chairman of the
board and one of the founders of Mitek, which is a publicly
traded company listed on NASDAQ.
B. Optionees will provide consulting services to
Optionor concerning alternative approaches to raising capital and
the impact of those approaches on Optionor's equity position in
Mitek and related financial and business matters. ▇▇▇▇▇▇ will
also consider serving as a member of the board of directors of
Mitek.
C. Optionor desires to grant Optionees certain options
to acquire the Shares.
In consideration of the foregoing and the mutual
covenants and agreements by the parties contained herein, the
parties agree as follows:
1. Grant of Option. Subject to the terms and
conditions hereof, Optionor hereby grants to Optionees the
following options to purchase shares of the common stock of Mitek
held by Optionor:
(a) An option to purchase up to 1,000,000 shares
at an exercise price of $1.00 for each share ("Option 1"); and
(b) An option to purchase up to 700,000 shares at
an exercise price of $1.50 for each share ("Option 2").
Option 1 and Option 2 shall be collectively referred to
herein as the "Options." The percentage interest of each
Optionee in the Options is set forth on Exhibit A attached hereto
and incorporated herein by this reference.
2. Term. The term of Option 1 commences on the date
hereof and expires as of 11:59 a.m. on April 15, 1998. The term
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of Option 2 commences on the date hereof and expires as of 11:59
a.m. on the first anniversary of this Agreement.
3. Exercise of Option.
(a) Each of the Options shall be exercisable
during their respective terms by written notice delivered to
Optionor (the "Notice") by Optionees individually or collectively
as a group. Each individual Optionee shall be entitled to
exercise options to purchase such number of the total options
subject to this Agreement based on the percentages set forth on
Exhibit A; provided, however, an Optionee may assign his or its
right to the Options to another Optionee. Each Notice shall
state the election to exercise the particular option, the option
exercise price, the number of shares in respect of which the
option is being exercised for each Optionee, and such other
representations and agreements as to Optionee's investment intent
with respect to such shares of common stock as may be reasonably
required by Mitek to comply with federal and state securities
laws. The Options shall be deemed to be exercised upon receipt
by Optionor of such written notice accompanied by payment via
cash or check for the exercise price. The Options may not be
exercised for less than an aggregate of 10,000 shares in any one
transaction.
(b) Upon receipt of the Notice(s), Optionor shall
cause to be transferred such number of shares as are set forth in
the Notice. The shares that are the subject of the Notice shall
be unrestricted shares of common stock of Mitek freely
transferable pursuant to the rules and regulations of NASDAQ or
any other exchange upon which the shares of Mitek are traded,
subject only to the restrictions of Rule 144 of the Securities
Act of 1933, as amended (the "Act").
4. Representations and Warranties of Optionor.
Optionor hereby represents and warrants as follows:
(a) Optionor is the record and beneficial owner
of the Shares as set forth on the books and records of Mitek,
free and clear of all liens, claims, charges, restrictions,
security interests, proxies, pledges or encumbrances of any kind.
(b) Optionor has the full right, power, authority
and capacity to enter into this Agreement, to grant the Options,
and to sell and transfer to Optionees the Shares as contemplated
herein.
(c) Upon exercise of any of the Options,
Optionees will obtain full title to the Shares, free and clear of
all liens, claims, charges, restrictions, security interests,
proxies, pledges or encumbrances of any kind, except for the
restrictions of Rule 144 of the Act.
(d) This Agreement constitutes a legal, valid and
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binding agreement of Optionor enforceable in accordance with its
terms.
(e) There are no claims, actions, suits,
proceedings or investigations pending or threatened against
Optionor or the Shares at law or in equity, and Optionor does not
know or have any reason to know of any basis for any such claim,
action, suit, proceeding or investigation.
(f) Optionor will use his best efforts to cause
Mitek to conduct a search for and employ a new chief executive
officer and to reconstitute its board of directors.
(g) Neither this Agreement nor any documents
filed of record by Mitek with the Securities and Exchange
Commission contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
herein or necessary to make the statements and information
contained herein or therein not misleading as of the date thereof
and as of the date of this Agreement.
5. Representations and Warranties of Optionees. Each
Optionee hereby represents and warrants severally, and not
jointly, as follows:
(a) Optionee is aware of Mitek's business affairs
and financial condition and has acquired sufficient information
about Mitek to reach an informed and knowledgeable decision to
acquire the Options. Optionee is acquiring the Options and the
shares subject thereto for investment for Optionee's own account
and not with the view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Act.
(b) Each Optionee (i) has substantial investment
experience; (ii) has such knowledge and experience in financial
and business matters that makes Optionee capable of evaluating
the merits and risks of the investment contemplated hereby; (iii)
is financially capable of undertaking the risks inherent in the
proposed acquisition of the Options and the purchase of the
Shares; (iv) qualifies as an "accredited investor" as defined
under Regulation D of the Act.
(c) Optionee understands that the Shares must be
held indefinitely unless subsequently registered under the Act
and registered or qualified under applicable state securities
laws or unless an exemption from such registration and
qualification is applicable to any subsequent transfer.
Optionees will not sell or transfer the Shares without
registration under the Act and registration or qualification
under applicable state securities laws, unless exempt therefrom.
Optionee understands that Mitek has no present plans for
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registration or for qualification of the Shares and that Mitek
has no obligation to register or to qualify the Shares for any
future sale or transfer by Optionees.
(d) Optionee is aware of the terms of Rule 144
adopted by the Securities and Exchange Commission under the Act,
relating to the conditions under which "restricted securities"
(which term may include the Shares) may be transferred without
registration under the Act. Optionee understands that any future
sale or transfer of the Shares may require compliance with Rule
144.
(e)
Notwithstanding the foregoing, Optionee
understands that certain shares of Mitek have been registered
under the Act and are publicly traded on NASDAQ.
6. Covenant By Optionor; Stock Legend. Optionor
hereby covenants and agrees that from and after the date hereof,
he shall retain full and unrestricted ownership of such number of
shares of common stock of Mitek so as to comply in full with the
terms and conditions of this Agreement. In addition, until the
first anniversary of this Agreement, Optionor shall not sell,
hypothecate, or otherwise transfer or agree to transfer any
shares of Mitek without the prior written consent of Optionees.
Within fifteen business days of the date hereof,
Optionor shall deliver stock certificates that evidence the
Shares to Mitek's legal counsel, and such certificates shall be
endorsed with the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS AND A PURCHASE OPTION IN FAVOR OF CERTAIN
PARTIES TO A STOCK OPTION AGREEMENT DATED OCTOBER 15, 1997, A
COPY OF WHICH IS IN THE POSSESSION OF THE HOLDER OF THIS
CERTIFICATE AND IS ON FILE AT THE HEADQUARTERS OF THE COMPANY.
7. Consulting Services. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇")
shall provide to Optionor up to 10 hours of advice regarding the
financing of and capital raising for Mitek, the organization and
structure of Mitek, and such other business and similar financial
matters that concern or relate to Optionor's equity position in
Mitek. Except for the Options granted herein or as may be agreed
to by the parties in writing, ▇▇▇▇▇▇ shall not be entitled to any
compensation or fees for such consulting services. If the
services have not been provided within three months of the date
of this Agreement, the obligation to provide such consulting
services may be terminable for any or no reason upon thirty (30)
days written notice by either party.
8. Adjustment for Stock Split. All references to the
number of shares and the purchase price of the shares subject to
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the Options shall be appropriately adjusted to reflect any stock
split, stock dividend or other change in the Shares which may be
made by Mitek after the date of this Agreement.
9. General Provisions.
(a) This Agreement shall be governed by the laws
of the State of California. This Agreement represents the entire
Agreement between the parties with respect to the grant of the
Options by Optionor and may only be modified or amended in a
writing signed by all parties hereto.
(b) This Agreement will inure to the benefit of
and be binding upon and enforceable against the parties and their
successors, assigns, and transferees including the
administrators, executors, representatives, heirs, legatees and
pledgees holding the Shares as collateral. Any transfer by
Optionees is subject to the prior approval of all Optionees.
(c) No waiver by any party hereto of any
condition or of any breach of any provision of this Agreement
shall be effective unless in writing and signed by each party
hereto.
(d) Any dispute or claim in law or equity arising
out of this Agreement or any transaction resulting from this
Agreement shall be decided by neutral binding arbitration in
accordance with the rules of the American Arbitration
Association, and not by court action except as provided by
California law for judicial review of arbitration proceedings.
Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The parties
shall have the right to discovery in accordance with Code of
Civil Procedure Section 1283.05 in connection with any
arbitration proceeding held hereunder. The filing of a judicial
action for an order of attachment, an injunction, or other
provisional remedies, shall not constitute a waiver of the right
to arbitrate under this provision.
(e) If any legal action or any arbitration or
other proceeding is brought for the enforcement or interpretation
of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party
or parties shall be entitled to recover reasonable attorney's
fees and other costs incurred in any such action or proceeding,
in addition to any other relief to which it or they may be
entitled.
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(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one instrument.
(g) All notices and other communications provided
for in this Agreement shall be in writing and shall be deemed
delivered on the date of personal delivery, or the next business
day if sent by recognized overnight courier, or on the third
business day after the postmark when sent by United States
Certified Mail, Return Receipt Requested, addressed as follows:
Optionor: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
10070 ▇▇▇▇▇▇▇ Canyon
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Optionees: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address or to the attention of such other person
as the recipient person has previously furnished to the other
party in writing in accordance with this subsection.
(h) Whenever possible, each provision of the
Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule, such invalidity,
illegality or unenforceability will not affect any other
provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been
contained herein.
The parties have executed this Agreement and it
shall be effective as of the date and year first above written.
OPTIONOR: OPTIONEES:
The ▇▇▇▇ ▇. And ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust
▇▇▇▇▇▇▇▇ Family Trust
By: Signature By: Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
[Continued on next page]
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Signature
▇▇▇▇▇ ▇. ▇▇▇▇
Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Signature
▇▇▇▇▇ ▇▇▇▇▇ Neighbors
[End of Signature Pages]
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Exhibit A
Schedule of Optionees
Optionee Percentage Interest
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust 25%
▇▇▇▇▇ ▇. ▇▇▇▇ 25%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 25%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 15%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5%
▇▇▇▇▇ ▇▇▇▇▇ Neighbors 5%