EXHIBIT 10.25 - OPTION AGREEMENT - Yam-Hin Tan
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF
THIS OPTION HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED
OR TRANSFERRED EXCEPT (I) PURSUANT TO A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE
SECURITIES, OR (II) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE
ACT, BUT ONLY UPON A EMPLOYEE HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION
OF COUNSEL TO THE ISSUER, OR OTHER COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER,
THAT THE PROPOSED DISPOSITION IS EXEMPT FROM REGISTRATION UNDER THE ACT.
OPTION AGREEMENT
This AGREEMENT (the "Option Agreement") date this 12 day of September,
2002 ("Grant Date") by I. T. Technology, Inc., a Delaware corporation (the
"Issuer"), to Yam-Hin Tan ("Employee") with respect to the issuer's grant to
Employee of an option (the "Option") to acquire up to 1,000,000 shares of the
Issuer's common stock (collectively, the "Option Shares"), pursuant to the terms
of this Option Agreement
RECITAL
WHEREAS, EMPLOYEE HAS IN THE PAST AND CONTINUES TO RENDER VALUABLE
SERVICES TO THE ISSUER AS ITS CHIEF FINANCIAL OFFICER; AND
WHEREAS, the Board of Directors of the issuer believes it to be in the
best interests of the Issuer to reward and create, through the grant of the
Option, an additional incentive for the Employee's continued employment with the
Issuer the Employee.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Issuer and Employee agree as follows:
1. GRANT OF OPTION.
The Issuer hereby grants as of the date hereof to Employee the
Option, upon the terms and subject to the conditions set forth in this Option
Agreement, to purchase the Option Shares, at a per share exercise price equal to
ten cents ($0.10) per share (the "Exercise Price").
2. TERM OF OPTION.
The Option shall terminate and expire, upon the first to occur
of either of the following(the "Option Expiration Date")
(a) at 5:00 p.m., New York time on September 12, 2005;
(b) except as expressly provided in Sections 2(c) or 2(d)
below, the date Employee's employment with the Issuer
terminates;
(c) thirty (30) days after the date Employee's employment
with the Issuer terminates, in the event Employee's
employment with the Issuer terminates as a result of
Employee's incapacity as a result of illness; or
(d) ninety (90) days after the date Employee's employment
with the Issuer terminates, in the event Employee's
employment with the Issuer terminates as a result of
Employee's death.
Upon the occurrence of the Option Expiration Date no further
Options may be exercised and all unexercised Options shall automatically expire
and be of no further force or effect.
3. VESTING OF OPTION.
The Option shall fully vest and be exercisable (each such date
with respect to the Option Shares then vested the" Vesting Date"), as follows:
(a) Options to purchase an 250,000 Option Shares on
December 12, 2002;
(b) Options to purchase an additional 250,000 Option
Shares on March 12, 2003;
(c) Options to purchase an additional 250,000 Option
Shares on June 12, 2003; and
(d) Options to purchase the remaining 250,000 Option Shares on September 12,
2003;
The Employee agrees that notwithstanding anything to the
contrary contained elsewhere herein, no additional portion of any Option shall
vest after the termination of Employee's employment with the Issuer and no
portion of any vested Option may be exercised unless and until any
then-applicable requirements of all state and federal securities laws shall have
been fully complied with to the reasonable satisfaction of the Issuer and its
counsel; provided, however, that the Issuer use its best efforts to comply with
the requirements of all such state and federal securities laws.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, but any Option
Shares which have previously vested may be exercised in whole or in part at any
time or from time to time on or prior to the Option Expiration Date. A new
Option shall be issued for the amount of unexercised shares. The Option must be
exercised by delivery to the Issuer of:
(A) WRITTEN NOTICE OF EXERCISE IN SUBSTANTIALLY THE FORM OF
EXHIBIT "A" ATTACHED TO THIS OPTION; AND (b) payment of the
Exercise Price of the Option Shares pursuant to Section 5.
Upon receipt of the foregoing, the Issuer shall promptly
issue in the name of the Employee one or more stock
certificates evidencing the Option Shares issued pursuant to such exercise and
deliver such certificate(s) to the Employee in such denominations as the
Employee shall request.
5. DELIVERY OF SHARES; PAYMENT OF EXERCISE PRICE.
Payment of the Exercise Price shall be made in United States
currency by wire transfer to an account designated by the Issuer or by cash or
by delivery of a certified check, bank draft or postal or express money order
payable to the order of the Issuer.
6. RESTRICTIONS ON TRANSFER OF OPTION AND OPTION SHARES.
(A) EMPLOYEE MAY NOT OFFER, SELL, TRANSFER, PLEDGE,
HYPOTHECATE OR ASSIGN EITHER BY OPERATION OF LAW OR OTHERWISE ("TRANSFER"), ALL
OR ANY PORTION OF THE OPTION OR THE OPTION SHARES WITHOUT THE EXPRESSED WRITTEN
CONSENT OF THE ISSUER. IN ADDITION, THE EMPLOYEE MAY NOT TRANSFER ALL OR ANY
PORTION OF THE OPTION OR THE OPTION SHARES EXCEPT PURSUANT TO A REGISTRATION
STATEMENT UNDER THE ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT UNDER THE ACT
OR PURSUANT TO A SPECIFIC EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT AND THEN WITH THE WRITTEN OPINION OF LEGAL COUNSEL ACCEPTABLE TO THE ISSUER
TO SUCH EFFECT. ANY PURPORTED TRANSFER OF ALL OR ANY PORTION OF THE OPTION IN
VIOLATION OF THIS SECTION SHALL BE NULL AND VOID.
(B) UNLESS THE ISSUER HAS ON FILE WITH THE SECURITIES AND
EXCHANGE COMMISSION (THE "SEC") AN EFFECTIVE REGISTRATION STATEMENT COVERING THE
REOFFER OR RESALE OF THE OPTION SHARES ISSUED TO THE EMPLOYEE, EACH CERTIFICATE
FOR OPTION SHARES ISSUED UPON THE EXERCISE OF THE OPTION, SHALL BE STAMPED OR
OTHERWISE IMPRINTED WITH A LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED,
ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS
BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE
SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON A
EMPLOYEE HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION
OF COUNSEL TO THE ISSUER, OR OTHER COUNSEL REASONABLY
ACCEPTABLE TO THE ISSUER, THAT THE PROPOSED DISPOSITION IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
7. NO RIGHTS AS STOCK HOLDER.
Employee shall have no rights as a stock holder of the Issuer
with respect to the Option Shares until the date the exercise notice is received
by the Issuer together with payment (the "Exercise Date"). No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the Exercise Date.
8. TAXES.
Employee agrees to be responsible for all federal, state or
local taxes arising out of or relating to Issuer's grant or Employee's exercise
of the Option, including but not limited to any employer or employee withholding
taxes which may become due with respect thereto ("Taxes") and agrees to
indemnify the Issuer against any claims, losses, damages, charges or judgments
or any kind whatsoever relating to such Taxes. Issuer shall be entitled to
deduct from Employee's salary withholding taxes, if any, due upon the exercise
of all or any portion of the Option at the applicable rate..
9. ADJUSTMENT.
(a) If outstanding shares of the Common Stock of the Issuer
shall be subdivided into a greater number of shares, or a dividend in Common
Stock or other securities of the Issuer convertible into or exchangeable for
Common Stock (in which latter event the number of shares of Common Stock
issuable upon the conversion or exchange of such securities shall be deemed to
have been distributed), shall be paid or distributed in respect to the Common
Stock of the Issuer, the number of Option Shares for which this Option may be
exercised immediately prior to such subdivision or at the record date of such
dividend shall, simultaneously with the effectiveness of such subdivision or
immediately after the record date of such dividend or other distribution, be
proportionately increased, and conversely, if outstanding shares of the Common
Stock of the Issuer shall be combined into a smaller number of shares, the
number of Option Shares for which this Option may be exercised prior to such
combination shall, simultaneously with the effectiveness of such combination, be
proportionately decreased. Any adjustment to the Option Shares under this
Section 9(a) shall become effective at the close of business on the date the
subdivision or combination referred to herein becomes effective.
(b) In the event of any recapitalization, consolidation,
merger or reorganization ("Reorganization"), where the Issuer shall not be the
surviving entity the Employee of the Options shall at the sole discretion of the
Issuer be entitled to either (1) receive, and provision shall be made therefore
in any agreement relating to any such Reorganization, upon exercise of the
Option the kind and number of shares of Common Stock or other securities or
property (including cash) of the Issuer, which the Employee would have received
in connection with the Reorganization as the Employee of the number of shares of
Common Stock into which the Option could have been exercised in full immediately
prior to such Reorganization; and in any such case appropriate adjustment shall
be made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the Employees, to the end that the
provisions set forth herein (including the specified changes and other
adjustments to the number of Option Shares) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares, to such other securities
or property thereafter receivable upon issuance of the Option Shares or (b) no
less than thirty (30) days prior notice of such Reorganization, during which
time the Employee may elect to exercise all Options which have then vested. In
such event all unexercised Options shall expire upon the consummation of the
Reorganization . The provisions of this Section 9(b) shall similarly apply to
successive Reorganizations. For purposes of this Section 9, the term
"Reorganization" shall include the acquisition of the Issuer by another entity
by means of a merger, consolidation or other reorganization.
(c) In addition to the adjustments to the number of Option
Shares or other property receivable upon exercise of the Options as provided in
Sections 9(a) and (b) above, the Exercise Price per Option Share shall be
appropriately adjusted so that the aggregate exercise price shall remain
constant.
10. CERTIFICATE OF ADJUSTMENT.
Within thirty (30) days following any event requiring an
adjustment or readjustment of the number of shares of Common Stock or other
securities issuable upon exercise of the Option, the Issuer, at its expense,
shall cause a nationally recognized firm of independent public accountants
selected by the Issuer to compute such adjustment or readjustment in accordance
with this Option and to prepare a certificate showing such adjustment or
readjustment, and shall mail such certificate, by first-class mail, postage
prepaid, to the Employee at the address set forth in Section 12(b). The
certificate shall set forth such adjustment or readjustment, showing in detail
the facts upon which such adjustment or readjustment is based.
11. MODIFICATION.
The Board or a committee thereof may modify, extend or renew
the Option or accept the surrender of, and authorize the grant of a new option
or Option in substitution for, the Option (to the extent not previously
exercised). No modification of the Option which adversely affects the rights of
the Employee shall be made without the written consent of Employee.
12. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Employee shall promptly take all
actions and execute all documents requested by the Issuer, which the Issuer
deems to be reasonably necessary to effectuate the terms and intent of this
Option.
(b) NOTICES. All notices, requests, demands and other
communications under this Option shall be in writing and shall be given to the
parties hereto as follows:
If to the Issuer, to:
I.T. Technology, Inc..
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
If to Employee, to:
_____________________
_____________________
_____________________
Attention: _____________
or at such other address or addresses as may have been furnished by either party
in writing to the other party hereto. Any such notice, request, demand or other
communication shall be effective (i) if given by mail, two days after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid, or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) GOVERNING LAW, RESOLUTION OF DISPUTES.
(i) This Option Agreement shall be governed by and
construed in accordance with the Laws of the State of
California applicable to contracts made in, and to be performed in, that state..
(ii) The parties hereto agree that all disputes arising
out of or relating to this Option Agreement, including
but not limited to the interpretation or enforcement of any the terms hereof
(the "Dispute") shall be adjudicated state or federal court located in the
County of Los Angeles, State of California. Employee expressly agrees that such
courts shall have personal jurisdiction over Employee in any such Dispute. EACH
OF THE PARTIES HERETO WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO THE
ADJUDICATION OF ANY SUCH DISPUTE.
(d) AMENDMENT; WAIVER. This Option Agreement shall be binding
upon and inure to the benefit of the Employee and the Issuer and their
respective successors, heirs and personal representatives. No provision of this
Option Agreement may be amended or waived unless in writing signed by the
Employee and the Issuer. Waiver of any one provision of this Option Agreement
shall not be deemed to be a waiver of any other provision.
(e) TIME IS OF THE ESSENCE. All times and dates in this Option
Agreement and each and every provision hereof in which time is an element are of
the essence; provided, however, that if the time period for exercising any
right, option or election provided in this Option Agreement or the time period
for the performance of any act required under this Option Agreement falls on a
Saturday, Sunday or legal or bank holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
(f) COUNTERPARTS. This Option Agreement may be executed in two
(2) or more counterparts, each of which shall be considered an original and all
of which shall be considered one and the same agreement and shall become
effective when two (2) or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all parties
need not sign the same counterpart.
(g) SEVERABILITY. If any term or other provision of this
Option Agreement is invalid, illegal or unenforceable, all other provisions of
this Option Agreement shall remain in full force and effect so long as the
economic or legal substance of the Transactions is not affected in any manner
materially adverse to any party. In the event that the enforceability of any
non-competition or similar covenants contained in this Option Agreement is
called into question as the result of time, geographical or other applicable
limitations specified in such covenants, such time, geographical or other
applicable limitations shall be deemed modified to the minimum extent necessary
to render the applicable provisions of such covenants enforceable.
(h) CONSTRUCTION; INTERPRETATION. The headings contained in
this Option Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Option Agreement. Article,
Section, Schedule, Exhibit, recital and party references are to this Option
Agreement unless otherwise stated. No party, nor the counsel of such party,
shall be deemed the drafter of this Option Agreement for purposes of construing
the provisions of this Option Agreement, and all provisions of this Option
Agreement shall be construed in accordance with the fair meaning of such
provisions, and not strictly for or against any party.
(i) ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Option
Agreement, together with all Schedules and Exhibits hereto, constitutes the
entire agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Option Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this Option
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
IN WITNESS WHEREOF, the Issuer has caused this Option Agreement to be
executed as of the date first above written.
I.T. TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: President
AGREED TO AND ACCEPTED THIS
18TH DAY OF SEPTEMBER, 2002.
BY: /S/ YAM-HIN TAN
YAM-HIN TAN
EXHIBIT "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: I.T. Technology, Inc.
The undersigned hereby irrevocably elects to exercise at ten cents
($.10) per share the purchase right represented by the Option purchased by the
undersigned pursuant to that Option Agreement dated September __, 2002 and to
purchase thereunder _______ shares (the "Option Shares") of Common Stock of I.T.
Technology, Inc., a Delaware corporation (the "Issuer") for the aggregate sum of
$___________. In connection therewith enclosed is a check payable to the Isssuer
in the sum of $___________ reflecting the full exercise price for the Option
Shares.
By: ______________________
