ACIES CORPORATION STOCK OPTION AGREEMENT Date: February 18, 2010
Exhibit
10.2
ACIES
CORPORATION
Date:
February 18, 2010
To Whom
It May Concern:
ACIES CORPORATION (the “Company”),
for value received, hereby agrees to issue common stock purchase options
entitling ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Director of the Company (“Holder”
or the “Option
Holder”) to purchase an aggregate of 30,000,000 shares of the Company’s
common stock (“Common
Stock”). Such option is evidenced by an option certificate in
the form attached hereto as Schedule 1 (such
instrument being hereinafter referred to as an “Option,”
and such Option and all instruments hereafter issued in replacement,
substitution, combination or subdivision thereof being hereinafter collectively
referred to as the “Option”),
which Option shall be granted outside of and separate from the Company’s 2009
Stock Incentive Plan. The Option is issued in consideration for ▇▇. ▇▇▇▇▇▇▇
agreeing to serve as Chief Strategy Officer of the Company, and in consideration
for services previously rendered to the Company prior to the date of this
Option, and evidences the approval of such grant by the Board of Directors of
the Company on February 18, 2010 (the “Grant
Date”). The number of shares of Common Stock purchasable upon
exercise of the Option is subject to adjustment as provided in Section 5
below. The Option will be exercisable by the Option Holder (as
defined below) as to all or any lesser number of shares of Common Stock covered
thereby, at an initial purchase price of US $0.01 per share (the “Purchase
Price”), subject to adjustment as provided in Section 5 below, which
shall vest to the Holder as provided in Section 3(a) below, for the exercise
period defined in Section 3(b) below.
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1.
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Representations
and Warranties.
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The
Company represents and warrants to the Option Holder as follows:
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(a)
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Corporate
and Other Action. The Company has all requisite power
and authority (corporate and other), and has taken all necessary corporate
action, to authorize, execute, deliver and perform this Stock Option
Agreement (the “Option
Agreement”), to execute, issue, sell and deliver the Option and a
certificate or certificates evidencing the Option, to authorize and
reserve for issue and, upon payment from time to time of the Purchase
Price, to issue, sell and deliver, the shares of the Common Stock issuable
upon exercise of the Option (“Shares”),
and to perform all of its obligations under this Option Agreement and the
Option. The Shares, when issued in accordance with this Option
Agreement, will be duly authorized and validly issued and outstanding,
fully paid and nonassessable and free of all liens, claims, encumbrances
and preemptive rights. This Option Agreement and, when issued, each Option
issued pursuant hereto, has been or will be duly executed and delivered by
the Company and is or will be a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms. No
authorization, approval, consent or other order of any governmental
entity, regulatory authority or other third party is required for such
authorization, execution, delivery, performance, issue or
sale.
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(b)
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No
Violation. The execution and delivery of this Option
Agreement, the consummation of the transactions herein contemplated and
the compliance with the terms and provisions of this Option Agreement and
of the Option will not conflict with, or result in a breach of, or
constitute a default or an event permitting acceleration under, any
statute, the Articles of Incorporation or Bylaws of the Company or any
indenture, mortgage, deed of trust, note, bank loan, credit agreement,
franchise, license, lease, permit, or any other agreement, understanding,
instrument, judgment, decree, order, statute, rule or regulation to which
the Company is a party or by which it is
bound.
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2.
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Transfer.
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(a)
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Transferability
of Option. The Option Holder agrees that this Option is
not transferable by Holder except to Option Holder’s spouse, children or
successors in interest pursuant to Option Holders last Will and
Testament.
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(b)
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Registration
of Shares. The Option Holder agrees not to make any sale
or other disposition of the Shares except pursuant to a registration
statement which has become effective under the Securities Act of 1933, as
amended (the “Act”),
setting forth the terms of such offering, the underwriting discount and
commissions and any other pertinent data with respect thereto, unless the
Option Holder has provided the Company with an acceptable opinion of
counsel acceptable to the Company that such registration is not
required. Certificates representing the Shares, which are not
registered as provided in this Section 2, shall bear an appropriate legend
and be subject to a “stop-transfer”
order.
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3.
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Vesting
of Option, Exercise of Option, Partial Exercise, Notice.
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(a)
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Vesting
Period. This Option shall vest to Holder immediately
upon the execution of this Option by the
Company.
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(b)
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Exercise
Period. This Option shall expire and all rights
hereunder shall be extinguished
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Five (5) years from the Grant
Date
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(c)
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Exercise
in Full. Subject to Section 3(a) and 3(b), the Option
may be exercised in full by the Option Holder by surrender of the Option,
with the Form of Subscription attached hereto as Schedule 2 executed by
such Option Holder, to the Company, accompanied by payment as determined
by 3(e) below, in the amount obtained by multiplying the number of Shares
represented by the respective Option by the Purchase Price per share
(after giving effect to any adjustments as provided in Section 5
below).
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(d)
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Partial
Exercise. Subject to Section 3(a) and 3(b), each Option
may be exercised in part by the Option Holder by surrender of the Option,
with the Form of Subscription attached hereto as Schedule 2 at the end
thereof duly executed by such Option Holder, in the manner and at the
place provided in Section 3(c) above, accompanied by payment as determined
by 3(e) below, in amount obtained by multiplying the number of Shares
designated by the Option Holder in the Form of Subscription attached
hereto as Schedule 2 to the Option by the Purchase Price per share (after
giving effect to any adjustments as provided in Section 5
below). Upon any such partial exercise, the Company at its
expense will forthwith issue and deliver to or upon the order of the
Option Holder a new Option of like tenor, in the name of the Option
Holder, calling in the aggregate for the purchase of the number of Shares
equal to the number of such Shares called for on the face of the
respective Option (after giving effect to any adjustment herein as
provided in Section 5 below) minus the number of such Shares designated by
the Option Holder in the aforementioned form of
subscription.
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(e)
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Payment
of Purchase Price. The Purchase Price may be made by any
of the following or a combination thereof, at the election of the Option
Holder:
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(i) In
cash, by wire transfer, by certified or cashier’s check, or by money
order; or
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(ii) Assuming
at least six months has past from the vesting date of the Options, by
delivery to the Company of an exercise notice that requests the Company to
issue to the Option Holder the
full number of shares as to which the Option is then
exercisable, less the number of shares that have
an aggregate Fair Market Value, as determined by the Board in
its sole discretion at the time of exercise, equal to the
aggregate purchase price of the shares to which such exercise relates, in
the event that the Fair Market Value is greater than the Exercise
Price. (This method of exercise allows the Option Holder to use
a portion of the shares issuable at the time of exercise as payment
for the shares to which the Option relates and is often referred to as a
"cashless
exercise." For example, if the Option Holder elects to exercise
1,000 shares at an exercise price of $0.25 and the current Fair
Market Value of the shares on the date of exercise is $1.00,
the Option Holder can use 250 of the 1,000 shares at $1.00 per share
to pay for the exercise of the entire Option (250 x $1.00 =
$250.00) and receive only the remaining 750
shares).
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For
purposes of this section, "Fair
Market Value” shall be defined as the average closing price of the Common
Stock (if actual sales price information on any trading day is not available,
the closing bid price shall be used) for the five trading days prior to the date
of exercise of this Option (the “Average
Closing Bid Price”), as reported by the National Association of
Securities Dealers Automated Quotation System (“NASDAQ”),
or if the Common Stock is not traded on NASDAQ, the Average Closing Bid Price in
the over-the-counter market; provided, however, that if the Common Stock is
listed on a stock exchange, the Fair Market Value shall be the Average Closing
Bid Price on such exchange; and, provided further, that if the Common Stock is
not quoted or listed by any organization, the fair value of the Common Stock, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive, shall be used). In no event shall the Fair Market Value of
any share of Common Stock be less than its par value.
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4.
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Delivery
of Stock Certificates on
Exercise.
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Any
exercise of the Option pursuant to Section 3 shall be deemed to have been
effected immediately prior to the close of business on the date on which the
Option together with the Form of Subscription and the payment for the aggregate
Purchase Price shall have been received by the Company. At such time,
the person or persons in whose name or names any certificate or certificates
representing the Shares or Other Securities (as defined below) shall be issuable
upon such exercise shall be deemed to have become the holder or holders of
record of the Shares or Other Securities so purchased. As soon as
practicable after the exercise of any Option in full or in part, and in any
event within Ten (10) business days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of, and delivered to the purchasing Option Holder, a
certificate or certificates representing the number of fully paid and
nonassessable shares of Common Stock or Other Securities to which such Option
Holder shall be entitled upon such exercise, plus in lieu of any fractional
share to which such Option Holder would otherwise be entitled, cash in an amount
determined pursuant to Section 6(e). The term “Other
Securities” refers to any stock (other than Common Stock), other
securities or assets (including cash) of the Company or any other person
(corporate or otherwise) which the Option Holder at any time shall be entitled
to receive, or shall have received, upon the exercise of the Option, in lieu of
or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 5 below or otherwise.
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5.
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Adjustment
of Purchase Price and Number of Shares
Purchasable.
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The
Purchase Price and the number of Shares are subject to adjustment from time to
time as set forth in this Section 5.
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(a)
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In
case the Company shall at any time after the date of this Option Agreement
(i) declare a dividend on the Common Stock in shares of its capital stock,
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding
Common Stock into a smaller number of Common Stock, or (iv) issue any
shares of its capital stock by reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), then in each
case the Purchase Price, and the number and kind of Shares receivable upon
exercise, in effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination, or reclassification
shall be proportionately adjusted so that the holder of any Option
exercised after such time shall be entitled to receive the aggregate
number and kind of Shares which, if such Option had been exercised
immediately prior to such record date, he would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination, or reclassification. Such adjustment
shall be made successively whenever any event listed above shall
occur.
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(b)
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No
adjustment in the Purchase Price shall be required if such adjustment is
less than US $.01; provided, however, that
any adjustments which by reason of this subsection (b) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 5 shall be made
to the nearest cent or to the nearest one-thousandth of a share, as the
case may be.
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(c)
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Upon
each adjustment of the Purchase Price as a result of the calculations made
in subsection (a) of this Section 5, the Option outstanding prior to the
making of the adjustment in the Purchase Price shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that number of
Shares (calculated to the nearest thousandth) obtained by (i) multiplying
the number of Shares purchasable upon exercise of the Option immediately
prior to adjustment of the number of Shares by the Purchase Price in
effect prior to adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
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6.
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Further
Covenants of the Company.
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(a)
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Dilution
or Impairments. The Company will not, by amendment of
its certificate of incorporation or through any reorganization, transfer
of assets, consolidation, merger or dissolution, avoid or seek to avoid
the observance or performance of any of the terms of the Option or of this
Option Agreement, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the Option
Holder against dilution or other impairment. Without limiting
the generality of the foregoing, the
Company:
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(i)
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shall
at all times reserve and keep available, solely for issuance and delivery
upon the exercise of the Option, all shares of Common Stock (or Other
Securities) from time to time issuable upon the exercise of the Option and
shall take all necessary actions to ensure that the par value per share,
if any, of the Common Stock (or Other Securities) is at all times equal to
or less than the then effective Purchase Price per share;
and
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(ii)
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will
take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable shares
of Common Stock or Other Securities upon the exercise of the Option from
time to time outstanding.
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(b)
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Title
to Stock. All Shares delivered upon the exercise of the
Option shall be validly issued, fully paid and nonassessable; each Option
Holder shall, upon such delivery, receive good and marketable title to the
Shares, free and clear of all voting and other trust arrangements, liens,
encumbrances, equities and claims whatsoever; and the Company shall have
paid all taxes, if any, in respect of the issuance
thereof.
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(c)
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Replacement
of Option. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of any Option and, in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, upon
surrender and cancellation of such Option, the Company, at the expense of
the Option Holder, will execute and deliver, in lieu thereof, a new Option
of like tenor.
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(d)
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Fractional
Shares. No fractional Shares are to be issued upon the
exercise of any Option, but the Company shall round any fraction of a
share to the nearest whole Share.
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7.
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Miscellaneous.
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All
notices, certificates and other communications from or at the request of the
Company to any Option Holder shall be mailed by first class, registered or
certified mail, postage prepaid, to such address as may have been furnished to
the Company in writing by such Option Holder, or, until an address is so
furnished, to the address of the last holder of such Option who has so furnished
an address to the Company, except as otherwise provided herein. This
Option Agreement and any of the terms hereof may be changed, waived, discharged
or terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is
sought. This Option Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Florida. The
headings in this Option Agreement are for purposes of reference only and shall
not limit or otherwise affect any of the terms hereof. This Option
Agreement, together with the forms of instruments annexed hereto as schedules,
constitutes the full and complete agreement of the parties hereto with respect
to the subject matter hereof. For purposes of this Option Agreement,
a faxed signature shall constitute an original signature. A photocopy
or faxed copy of this Agreement shall be effective as an original for all
purposes.
IN
WITNESS WHEREOF, the Company has caused this Option Agreement to be executed on
this 18th day of February 2010, to be effective as of the Grant Date, by its
proper corporate officers, thereunto duly authorized.
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ACIES
CORPORATION
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By /s/ ▇▇▇▇
▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇, President
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SCHEDULE 1
OPTION
THIS
OPTION AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER: (A) THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
IN RELIANCE UPON THE EXEMPTIONS FROM REGISTRATION PROVIDED IN SECTIONS 3 AND 4
OF SUCH ACT AND REGULATION S PROMULGATED THEREUNDER; OR (B) ANY STATE SECURITIES
LAWS IN RELIANCE UPON APPLICABLE EXEMPTIONS THEREUNDER. THIS OPTION
MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS REGISTERED UNDER
THE ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THIS
OPTION MUST BE ACQUIRED FOR INVESTMENT ONLY FOR THE ACCOUNT OF THE INVESTOR, AND
NEITHER THE OPTION NOR THE UNDERLYING STOCK MAY BE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF REGULATION S AND OTHER LAWS OR PURSUANT TO
REGISTRATION UNDER THE ACT OR AN AVAILABLE EXEMPTION FROM
REGISTRATION. HEDGING TRANSACTIONS INVOLVING THIS OPTION OR THE
SECURITIES TO BE ISSUED UPON ITS EXERCISE MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE ACT.
To
Purchase 30,000,000 Shares
of Common
Stock
ACIES
CORPORATION
This
certifies that, for value received, the hereafter named registered owner is
entitled, subject to the terms and conditions of this Option, until the
expiration date, to purchase the number of shares (the “Shares”)
set forth above of the common stock (“Common
Stock”), of ACIES
CORPORATION (the “Company”)
from the Company at the purchase price per share hereafter set forth below, on
delivery of this Option to the Company with the exercise form duly executed and
payment of the purchase price (in cash, via certified or bank cashier’s check
payable to the order of the Company, or in shares of the Company’s common stock
in the event of a cashless exercise) for each Share purchased. This
Option is subject to the terms of the Option Agreement between the parties
thereto dated as of February 18, 2010, the terms of which are hereby
incorporated herein. Reference is hereby made to such Option Agreement for a
further statement of the rights of the holder of this Option.
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Registered
Owner: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Effective
Date: February 18, 2010
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Purchase
Price
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Per
Share:
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US
$0.01
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Vesting
Date:
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Subject
to Section 3(a) of the Option Agreement, February 18,
2010.
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Expiration
Date:
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Subject
to Section 3(b) of the Option Agreement, February 18, 2015, 5:00 p.m.
Eastern Standard Time.
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WITNESS
the signature of the Company’s authorized officer:
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ACIES
CORPORATION
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By
/s/ ▇▇▇▇
▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇, President
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SCHEDULE
2
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FORM OF
SUBSCRIPTION
(To be signed only upon exercise of
Option)
To ACIES
CORPORATION:
The
undersigned, the holder of the enclosed Option, with an effective date of
February 18, 2010, hereby irrevocably elects to exercise the purchase right
represented by such Option for, and to purchase thereunder,* shares of Common Stock of ACIES CORPORATION and herewith
makes payment of US $_______________(or elects to pay for the exercise in shares
of common stock pursuant to Section 3(e)(ii) of the Stock Option Agreement as
evidenced by the calculation below by checking this box o), and requests that the
certificate or certificates for such shares be issued in the name of and
delivered to the undersigned.
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Dated:______________
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____________________________________________
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(Signature
must conform in all respects to name of holder
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as
specified on the face of the enclosed
Option)
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____________________________________________
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(Printed
Name)
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____________________________________________
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(Address)
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(*) Insert
here the number of shares called for on the face of the Option or, in the case
of a partial exercise, the portion thereof as to which the Option is being
exercised, in either case without making any adjustment for additional Common
Stock or any other stock or other securities or property which, pursuant to the
adjustment provisions of the Option Agreement pursuant to which the Option was
granted, may be delivered upon exercise.
Calculation pursuant to
Section 3(e)(ii) of the Stock Option Agreement
________________
= Total Shares
Exercised
________________
= Purchase Price
(as defined and adjusted in the Stock Option Agreement)
________________
= Fair Market
Value - the average closing price of the Common Stock (if actual sales
price information on any trading day is not available, the closing bid price
shall be used) for the five trading days prior to the date of exercise of this
Warrant (the “Average
Closing Bid Price”), as reported by the National Association of
Securities Dealers Automated Quotation System (“NASDAQ”),
or if the Common Stock is not traded on NASDAQ, the Average Closing Bid Price in
the over-the-counter market; provided, however, that if the Common Stock is
listed on a stock exchange, the Fair Market Value shall be the Average Closing
Bid Price on such exchange; and, provided further, that if the Common Stock is
not quoted or listed by any organization, the fair value of the Common Stock, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive, shall be used). In no event shall the Fair Market Value of
any share of Common Stock be less than its par value.
Total
Shares Exercised x Purchase Price
_____________
= Shares to be Issued =
Total Shares
Exercised --------------------------------------------------
Fair
Market Value
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