NON-QUALIFIED STOCK OPTION AGREEMENT This Agreement is made as of the 28th day of March, 2007
Exhibit
4.4
This
Agreement is made as of the 28th day of March, 2007
| BETWEEN: |
VoIP,
Inc.
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hereinafter
referred to as
"Company"
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AND:
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▇▇▇-▇▇▇▇▇, Consultant to VoIP,
Inc.
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hereinafter
referred to as "Optionee"
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WHEREAS,
the
Board of Directors of the Company (the "Board of Directors") has authorized
the
granting to Optionee, for services to be rendered by Optionee as a consultant
to
the Company, in accordance with the terms of a Consulting Agreement ("Consulting
Agreement") between the Company and Optionee entered into on March 28, 2007,
of
a non-qualified stock option to purchase the number of shares of common stock
(“Common Stock”) of the Company specified in Paragraph 1 hereof at the price
specified therein, such option to be for the term and upon the terms and
conditions hereinafter stated in this Option Agreement.
NOW
THEREFORE,
in
consideration of the premises and of the undertakings of the Parties hereto
contained herein, it is hereby agreed:
| 1. |
NUMBER
OF SHARES: OPTION PRICE
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Pursuant
to said action of the Board of Directors, the Company hereby grants to Optionee,
in consideration of consulting services to be performed for the benefit of
the
Company, the option ("Option") to purchase up to Three Million (3,000,000)
shares ("Option Shares") of Common Stock of the Company, at the exercise price
equal to twenty cents ($0.20) a share (the “Exercise Price”).
Notwithstanding
anything in this Option Agreement to the contrary, in no event will the Optionee
be entitled to exercise the Option to purchase Option shares in excess of such
number of shares of Common Stock beneficially owned by the Optionee and its
affiliates (other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unexercised Warrants and the unexercised
or
unconverted portion of any other securities of the Company, subject to a
limitation on conversion or exercise) that would result in beneficial ownership
by the Holder and its affiliates of more than 4.9% of the outstanding shares
of
Common Stock. For purposes of the immediately preceding sentence, beneficial
ownership is determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13D-G thereunder.
| 2. |
TERM
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This
option will expire five (5) years from the date of signing of this Option
Agreement.
| 3. |
SHARES
SUBJECT TO EXERCISE
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The
options are immediately exercisable and remain subject to exercise for the
term
specified in Section 2, regardless of the termination of the Consulting
Agreement.
| 4. |
METHOD
AND TIME OF EXERCISE
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The
Option may be exercised by written notice delivered to the Company in the form
attached hereto as Exhibit A stating the number of shares with respect to which
the Option is being exercised together with either a check made payable to
the
Company in the amount of the purchase price of the shares, or a wire transfer
in
the amount of the purchase price of the shares. Only whole shares may be
purchased. The Company must carry out any and all acts to ensure that the
Company and its transfer agent duly and properly issue the shares underlying
the
options to Optionee.
| 5. |
EXERCISE
ON TERMINATION
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This
Option will not terminate as a result of the termination of Optionee's services
as a consultant to the Company or as a result of an early termination of the
Consulting Agreement by Company.
| 6. |
TRANSFERABILITY
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This
Option is assignable at the discretion of the Consultant.
| 7. |
OPTIONEE
NOT A SHAREHOLDER
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Optionee
has no rights as a shareholder with respect to the Common Stock of the Company
covered by the Option until the date of issuance of a stock certificate or
stock
certificates to him upon exercise of the Option. No adjustment will be made
for
dividends or other rights for which the record date is prior to the date such
stock certificate or certificates are issued.
| 8. |
RESTRICTIONS
ON SALE OF SHARES
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Optionee
represents and agrees that, upon Optionee's exercise of the Option in whole
or
part, unless there is in effect at that time under the Securities Act of 1933
a
registration statement relating to the shares issued to him, he will acquire
the
shares issuable upon exercise of this Option for the purpose of investment
and
not with a view to their resale or further distribution, and that upon such
exercise thereof Optionee will furnish to the Company a written statement to
such effect satisfactory to the Company in form and substance.
| 9. |
REPRESENTATION.
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Company
represents that it has carried out any and all acts necessary to effect the
issuance of this Agreement.
| 10. |
NOTICES
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All
notices to the parties may be sent at the addresses and numbers listed above,
or
to such other address and fax number as either may designate to the other in
writing. A notice will be deemed to be duly given if and when enclosed in a
properly addressed sealed envelope deposited, postage prepaid and followed
by
facsimile to the addressee. In lieu of giving notice by mail as aforesaid,
written notices under this Agreement may be given by personal delivery to the
Optionee or to the Company (as the case may be), or by a recognized
courier.
| 11. |
ADJUSTMENTS
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If
there
is any change in the capitalization of the Company affecting in any manner
the
number or kind of outstanding shares of Common Stock of the Company, whether
by
stock dividend, stock split, reclassification or recapitalization of such stock,
or because the Company has merged or consolidated with one or more other
corporations (and provided the Option does not thereby terminate pursuant to
Section 2 hereof), then the number and kind of shares then subject to the Option
and the price to be paid therefor will be appropriately adjusted by the Company;
provided however, that in no event will any such adjustment result in the
Company's being required to sell or issue any fractional shares. Any such
adjustment will be made without change in the aggregate purchase price
applicable to the unexercised portion of the Option, but with an appropriate
adjustment to the price of each Share or other unit of security covered by
this
Option.
| 12. |
CESSATION
OF CORPORATE EXISTENCE
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Notwithstanding
any other provision of this Option, under the dissolution or liquidation of
the
Company, the reorganization, merger or consolidation of the Company with one
or
more corporations as a result of which the Company is not the surviving
corpora-tion, or the sale of substantially all the assets of the Company or
of
more than fifty percent (50%) of the then outstanding stock of the Company
to
another corporation or other entity, the Option granted hereunder will
terminate; provided, however, that within fifteen (15) days before the effective
date of such dissolution or liquidation, merger or consolidation or sale of
assets in which the Company is not the surviving corporation, the Company will
tender to Optionee, an option to purchase shares of the surviving corporation,
and such new option or options will contain such terms and provisions
substantially in accordance with this Option in order to preserve the rights
and
benefits of this Option.
| 13. |
INVALID
PROVISIONS
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This
Agreement contains the entire agreement between the parties and may not be
changed except by agreement in writing signed by the party against whom
enforcement of any waiver, charge, discharge or modification is sought. Waiver
of or failure to exercise any rights provided by this Agreement in any respect
is not a waiver of any further or future rights. The failure of a Party to
insist upon strict adherence to any term of this Agreement on one or more
occasions will not be considered a waiver or deprive that Party of the right
thereafter to insist upon adherence to that term of any other term of this
Agreement.
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| 14. |
APPLICABLE
LAW
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Any
dispute or other disagreement arising from or out of this Option Agreement
shall
be submitted to mediation and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Mediation shall occur
only
in London, England. The interpretation and enforcement of this Option Agreement
is governed by the laws of the United Kingdom. In the event any dispute is
arbitrated, the prevailing Party (as determined by the arbiter(s)) shall be
entitled to recover that Party’s reasonable attorney’s fees incurred (as
determined by the arbiter(s)).
15.
MISCELLANEOUS
If
any
provision of this Option Agreement is invalid, illegal, or unenforceable, the
balance of this Option Agreement shall remain in effect, and if any provision
is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances. The consummation by the
Company of the transactions herein contemplated, including the execution,
delivery and consummation of this Option Agreement, will comply with all
applicable law and will not conflict with or result in a breach of any of the
terms of any agreement or instrument to which Company is bound, or constitute
a
default thereunder.
16.
COUNTERPARTS
This
Option Agreement may be executed in two or more counterparts, each of which
is
deemed an Original but all of which constitute but one agreement. A copy of
this
Option Agreement signed by a party and delivered by facsimile transmission
to
the other party has the same effect as the delivery of an original of this
Option Agreement containing the original signature of such party.
[SIGNATURE
PAGE TO FOLLOW}
IN
WITNESS WHEREOF,
the
Parties hereto have executed this Option Agreement as of the day and date first
above written.
| Company: | Optionee: | ||
| VoIP, Inc. | ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇ | ||
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Name:
Title:
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3
Exhibit
A
to Option Agreement
FORM
OF NOTICE OF OPTION EXERCISE
To: VoIP,
Inc. (the “Company”)
(1) The
undersigned hereby elects to purchase __________ shares of common stock of
the
Company (the “Shares”) pursuant to the terms of the Option Agreement by and
between the Company and the undersigned dated as of March __, 2007, and tenders
herewith payment of the exercise price in full as set forth below.
(2) Payment
shall take the form of (check applicable box):
[
] in
lawful money of the United States in the form of a check made payable by the
undersigned to the Company; or
[
] in
lawful money of the United States in the form of a wire transfer to the account
specified by the Company.
(3) Please
issue a certificate or certificates representing the Shares in the name of
the
undersigned or in such other name as is specified below:
____________________________________
The
Shares shall be delivered via overnight courier (with tracking information
to be
provided to the undersigned) to the following address:
_____________________________
_____________________________
_____________________________
Attn:
________________________
Tel:
_________________________
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