CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or dates) set forth
below, by and between:
DigiMedia USA, Inc., a Nevada corporation with its
principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, acting through its
authorized representative ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and hereafter
referred to as "DigiMedia USA";
- and -
First Equity Group, Inc. with principal place of
business located at ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇, hereafter referred to as "Consultant";
Declare as their mutual intent and purpose as follows.
DigiMedia USA desires to retain Consultant to perform
consulting services more fully described on Exhibit A, and
Consultant agrees to provide said services, which are more
fully described on Exhibit A and, with both parties intending
to be legally bound, DigiMedia USA and Consultant hereby
agree to adopt this Consulting Services Agreement, pursuant
to the terms and conditions set forth below.
1. Consultant will provide consulting services as
described on Exhibit A ("Services"). Following the execution
of this Consulting Services Agreement, and upon the
reasonable request of DigiMedia USA, Consultant shall
immediately provide DigiMedia USA with Services by the
employees and/or agents of Consultant, rendered in accord
with the terms of this Agreement.
2. Consultant will provide Services in accordance with
all applicable laws and regulations, including but not
limited to, the rules of ethical standards of the Securities
and Exchange Commission and the National Association of
Security Dealers, Inc.
3. Individuals who perform Services for or on behalf
of Consultant for DigiMedia USA shall be considered the
agents, consultants, contractors or employees of Consultant.
The relationship between Consultant and DigiMedia USA is
solely one of independent contractor. Nothing herein shall
be construed or interpreted to deem the relationship between
DigiMedia USA and Consultant as an employer-employees
relationship. Consultant and DigiMedia USA shall each
designate one or more of their employees as primary contacts
(representatives), who shall be designated at the end of this
Agreement, and authorized to act on their behalf in all
matters relating to this Agreement.
4. DigiMedia USA shall have the right to review the
qualifications of persons who are to perform the requested
services. DigiMedia USA may reject personnel if professional
qualifications are unsatisfactory to DigiMedia USA.
5. In consideration for the services to be performed
by Consultant, DigiMedia USA agrees to sell to Consultant
[680,000] shares of the common stock of DigiMedia USA, to
take place pursuant to the terms and conditions as set forth
on the Option Agreement attached hereto as Exhibit(s) B.
Services to be performed by Consultant under this Agreement
shall be in consideration of the compensation described
above, which shall in no way be construed as being paid for
the purchase or sale of any of DigiMedia USA securities,
either for Consultant's own account or as a broker, nor shall
this Agreement and the fee paid hereunder require Consultant
to make a market for the securities of DigiMedia USA.
6. In connection with this agreement, Consultant and
DigiMedia USA mutually agree that they will indemnify and
hold harmless each other and such other's respective
directors, officers, employees and each person, if any, who
controls such other entity within the meaning of Section 15
of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934 (any and all of whom are referred to as
"Indemnified Party") from and against any and all losses,
claims, damages and liabilities, joint or several (including
all legal or other expenses reasonably incurred by any
Indemnified Party in connection with the preparation for or
defense of any claim, action, or proceeding, whether or not
resulting in any liability), to which such Indemnified Party
may become subject under applicable federal or state law or
otherwise caused by or arising out of, or allegedly caused by
or arising out of, this Agreement or transactions covered by
this Agreement or the performance of the services provided
for herein; provided however, that such party will not be
liable hereunder to the extent that any loss, claim, damage
or liability is found in a final non-appealable judgment by a
court to have resulted from gross negligence or bad faith in
performing the services described herein. This provision
shall survive termination of this Agreement.
7. The term of this Agreement shall be for six months,
commencing on November 7, 1996 and continuing through to May
7, 1997. This agreement shall be automatically extended
beyond the initial six (6) month period upon the mutual
consent of both parties which will be presumed unless notice
to the contrary is set forth in writing by either party and
delivered to the other thirty (30) days prior to the end of
the initial term. In addition, either party may terminate
this agreement, at any time, with or without cause, upon
thirty (30) days written notice to the other party.
Notwithstanding termination of this agreement, the Company
shall remain obliged to pay Consultant for any amounts
accrued hereunder prior to the end of the term or termination
of the agreement.
8. (a) DigiMedia USA and Consultant will
not, unless otherwise required by law, either during or
subsequent to the term of this Agreement, directly or
indirectly disclose or publish to any unauthorized person any
information designated in writing as secret or confidential
by DigiMedia USA or by Consultant without the written consent
of the other party; nor will either party disclose to anyone
other than Personnel of one of the parties, or use in any way
other than in the course of the performance of this
Agreement, any information not known to the general public or
recognized as standard practice, whether acquired or
developed during performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be obligated by this
Section with respect to any information which is published or
becomes publicly available through no fault of the party
receiving such information under this Agreement; or
rightfully received from third parties; is developed
independently; or is in their possession five (5) years after
the effective date of this Agreement. Each party is likely
to be exposed to certain business information of the other
party not related to the Services, which is considered by the
other party to be proprietary and confidential, including but
not limited to customer, product and financial information.
The parties hereto agree to avoid the unauthorized
dissemination or publication of such proprietary information
by using the same degree of care with regard to such
information and the same methods to prevent the publication
thereof as each employs with respect to its own proprietary
information of a similar nature.
(c) Upon termination or expiration of this
Agreement, Consultant will return to DigiMedia USA all
material, written or descriptive, including, but not limited
to drawings, program listings, flowcharts, descriptions or
other papers or documents which contain any such confidential
information if requested.
(d) The confidentiality obligation imposed
hereunder shall survive the termination of this Agreement.
9. All notices, demands, payments and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been given on the date
delivery is acknowledged, and shall be made by recognized
courier service or by US Mail, certified, return receipt
requested, to the address of each party set forth in the
heading of the Agreement, or to such other address as either
party may substitute by written notice to the other party.
10. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto and their respective
heirs, legal representatives, successors or assigns. Neither
party shall assign its obligations hereunder without the
express written consent of the other party.
11. The following Exhibits, annexed hereto or
incorporated herein are hereby made a part of this Agreement.
Exhibit (A),(B), & (C). This Agreement constitutes the entire
Agreement and understanding between the parties hereto and
integrates all prior negotiations, discussions and agreements
between them. No modifications of the terms of this
Agreement shall be valid unless in writing and signed by an
authorized representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties have affixed their
signatures below and attest to their adoption of the above
terms and the attached exhibits and expressly acknowledge
receipt of a copy of this complete document.
First Equity, Inc. DigiMedia USA, Inc.
By:_________________________ By:________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President & CEO
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by Consultant shall be as
follows:
1. To perform services as indicated in the
addendum attached hereto; and
2. Such other advisory services as may be
mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT
IT WILL NOT SELL, ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE TRANSFER THIS
OPTION EXCEPT AS HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED (THE "ACT") OR UNDER THE SECURITIES
LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of , between
DIGIMEDIA USA, INC. (the "Company"), and FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 1996, between the Company
and the Registered Holder, which Consulting Services Agreement provides for
the issuance of options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of option
certificates (the "Option Certificates") representing [80,000] Options as
compensation under the aforementioned Consulting Services Agreement on such
terms and conditions as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle the holder
("the Registered Holder") or in the aggregate, the " Registered Holders ")
in whose name the Option Certificate shall be registered on the books
maintained by the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option Shares) on
exercise thereof, subject to modification and adjustment as provided in
Section 7. The Option Certificate representing the right to purchase Option
Shares shall he executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and delivered to the
Registered Holder upon execution of this Agreement.
Subject to the provisions of Sections 3, 5 and 6, the Company shall deliver
Option Certificates in required whole number denominations to the Registered
Holder (or Registered Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in Section 6 hereof, no
Option Certificates shall be issued except: (i) Option Certificates
initially issued hereunder; (ii) Option Certificates issued on or after the
initial issuance date, upon the exercise of any Options, to evidence the
unexercised Options held by the exercising Registered Holder; or (iii)
Option Certificates issued after the initial issuance date upon any transfer
or exchange of Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The Option
Certificates shall be substantially in the form attached hereto as Exhibit A
(the "Option Certificate"). The Option Certificates shall be dated as of
the date of their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed Option
Certificates. The Option Certificates shall be originally signed by the
Company's Chief Executive Officer or President, attested to by the Company's
Secretary and embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4 and 7, the
Options when evidenced by a Option Certificate and such other documents as
the Company may require, may be exercised at a price (the "Exercise Price)
of $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 1996 (the
"Option Exercise Price"). Each Option may be exercised in whole or in part
at any time during the period commencing with the date vested (as provided
in the Agreement the "Initial Exercise Date") and terminating at 5:00 p.m.
Fort Lauderdale, FL. time on November 7, 1998 (the "Termination Date").
Each Option shall be deemed to have been exercised immediately prior to the
close of business on the date (the "Exercise Date") of the surrender for
exercise of the Option Certificate. The exercise form, attached hereto as
Exhibit C shall be executed by the Registered Holder (or Registered Holders)
or his attorney duly authorized in writing and will be delivered to the
Company at its corporate office together with payment to the order of the
Company in cash or by official bank or certified check of an amount equal to
the aggregate Exercise Price, in lawful money of the United States of
America.
Unless Option Shares may not be issued as provided herein, the person
entitled to receive the number of Option Shares deliverable on such exercise
shall be treated for all purposes as the holder of such Option Shares as of
the close of business on the Exercise Date. In addition, the Company shall
also, at such time, verify that all of the conditions precedent to the
issuance of Option Shares, set forth in Section 4, have been satisfied as of
the Exercise Date. If any one of the conditions precedent set forth in
Section 4 are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price payment to the
exercising Registered Holder or may hold the same until all such conditions
have been satisfied. The Company shall not be obligated to issue any
fractional share interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such fractional shares
shall be of no value whatsoever. If more than one Option shall be exercised
at one time by the same Registered Holder, the number of full Option Shares
which shall be issuable on exercise thereof shall be computed on the basis
of the aggregate number of full Option Shares issuable on such exercise.
Once the Company has determined that the funds are determined to be
collected, the Company shall notify its common stock transfer agent who
shall cause a common stock share certificate representing the exercised
Options to be issued. The Company may deem and treat the Registered Holder
of the Options at any time as the absolute owner thereof for all purposes,
and the Company shall not be affected by any notice to the contrary. The
Options shall not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's Common Stock or
Option unless the holder shall have exercised the Options and purchased the
Option Shares prior to the record date fixed by the Board of Directors of
the Company for the determination of holders of Common Stock entitled to
such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The Company covenants
that it will at all times reserve and have available from its authorized
Common Stock such number of shares as shall then be issuable on the exercise
of all outstanding Options. The Company covenants that all Option Shares
which shall be so issuable shall be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to
such issue.
The Registered Holder(s) shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the
issuance of the Options, or the issuance, transfer or delivery of the
Options or any Option Shares on exercise of the Options. In the event the
Option Shares are to be delivered in the name other than the name of the
Registered Holder of the Option Certificate, no such delivery shall he made
unless the person requesting the same has paid to the Company the amount of
any such taxes or charges incident thereto.
5. Registration of Transfer. The Option Certificates may be
transferred in whole or in part as provided for herein. Option Certificates
to be transferred shall be surrendered to the Company at its corporate
office. The Company shall execute, issue and deliver in exchange therefor
the Option Certificate or Certificates which the holder making the transfer
shall be entitled to receive.
The Company shall keep transfer books at its corporate office which shall
register Option Certificates and the transfer thereof. On due presentment
for registration of transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and deliver to the
transferee or transferees a new Option Certificate or Certificates
representing an equal aggregate number of Options. All Option Certificates
presented for registration of transfer or exercise shall be duly endorsed or
be accompanied by a written instrument or instruments or transferred in a
form satisfactory to the Company and the Company's counsel. The Company may
require payment of a sum sufficient to cover any tax or other government
charge that may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for exercise or for
exchange in case of mutilated Option Certificates shall be promptly canceled
by the Company. Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of any Option
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the contrary.
6. Loss or Mutilation. On receipt by the Company of evidence
satisfactory as to the ownership of the loss, theft, destruction or
mutilation of any Option Certificate, the Company shall execute and deliver
in lieu thereof, a new Option Certificate representing an equal aggregate
number of Options. In the case of loss, theft or destruction of any Option
Certificates, the individual requesting issuance of a new Option Certificate
shall be required to indemnify the Company in an amount satisfactory to the
Company. In the event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to delivery of a new
Option Certificate. Applicants for a new Option Certificate shall also
comply with such other regulations and pay such other reasonable charges as
the Company may prescribe.
7. Adjustment of Exercise Price and Shares. After each adjustment of
the Exercise Price pursuant to this Section 7, the number of shares of
Option Shares purchasable on the exercise of such Options shall be the
number derived by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to adjustment as
follows:
(a) In the event, prior to the expiration of the Options by exercise
or by their terms, the Company shall issue any shares of its Common Stock as
a share dividend or shall subdivide the number of outstanding shares of
Common Stock into a greater number of shares, then, in either of such
events, the Exercise Price per share of Common Stock purchasable pursuant to
the Options in effect at the time of such action shall be reduced
proportionately and the number of shares purchasable pursuant to the Options
shall be increased proportionately. Conversely, in the event the Company
shall reduce the number of shares of its outstanding Common Stock by
combining such shares into a smaller number of shares, then, in such event,
the Exercise Price per share purchasable pursuant to the Options in effect
at the time of such action shall be increased proportionately and the number
of shares of Common Stock at that time purchasable pursuant to the Options
shall be decreased proportionately. Any dividend paid or distributed on the
Common Stock in shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However, any dividend
paid or distributed on the Common Stock in securities other than Common
Stock of the Company, regardless if exercisable for or convertible into
Common Stock of the Company, shall not he treated as a share dividend
pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the Options shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, and thereafter dissolves, liquidates or winds up its affairs, then
no provision need be made as part of the terms of any such sale,
dissolution, liquidation or winding up to allow Option holders to exercise
all or any Options held, in order to receive the same kind and amount of any
share, securities or assets as may be issuable, distributable or payable on
any such sale, dissolution, liquidation or winding up with respect to each
share of Common Stock of the Company.
(c) Notwithstanding the provisions of this Section 7, no
adjustment on the Exercise Price shall be made whereby such price is
adjusted in an amount less than $0.00 or until the aggregate of such
adjustments shall equal or exceed $0.00.
(d) No adjustment of the Exercise Price shall be made as a result
of or in connection with: (i) the issuance of Common Stock of the Company
pursuant to options, warrants and share purchase agreements outstanding or
in effect on the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings of the Company,
the modification, renewal or extension of any such plan, warrants or
offerings now in effect or hereafter created, or the issuance of Common
Stock on exercise of any such options or warrants; or (iii) the issuance of
Common Stock in connection with an acquisition or merger of any type.
(e) This Option Agreement shall be incorporated by reference on
the Option Certificates.
Before taking any action which would cause an adjustment reducing the
Exercise Price below the then par value of the shares of Common Stock
issuable upon exercise of the Options, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and nonassessable
shares of such Common Stock at such adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be made pursuant to
this Section 7, the Company within thirty (30) days thereafter shall: (i)
notify the Registered Holder of such adjustment setting forth the pertinent
Exercise Price after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is
based; and (ii) cause to be mailed to each of the Registered Holder(s) of
the Option Certificates written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option. In
addition to any adjustments made to the Exercise Price pursuant to
Section 7, the Company's Board of Directors may, in its sole discretion,
reduce the Exercise Price of the Options in effect at any time either for
the life of the Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall notify the
Registered Holder of any such reduction in the Exercise Price.
"The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and Directors of Registered
Holder. This Option shall not be transferred sold, assigned or hypothecated
except that it may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is an officer or
director of Registered Holder on October 3, 1996. All such transfers,
sales, assignments or hypothecation shall be fully identified to the Company
and the transferor shall execute and deliver to the Company such
certificates, endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The Registered Holder
and each Transferee Holder, agrees that they shall not sell, assign. pledge,
hypothecate or otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration under the
Securities Act of 1933, as amended (the "Act") and in compliance with
applicable state securities laws, or the Company receives an opinion of
counsel, satisfactory to the Company and Company counsel, that such
registration is not required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable federal and state
securities laws. In order to make any sale, assignment, pledge or
hypothecation, the transferor must deliver to the Company the assignment
form attached hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if any, payable in
connection therewith. As to the Option, the Company shall transfer the
transferred Option on the books of the Company and shall execute and deliver
a new Option Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of Option Shares
purchasable thereunder. As to the Option Shares, the Company shall cause
its duly authorized common stock transfer agent to transfer the common stock
being transferred.
10. Registration. The Company, upon the one time written demand (the
"Demand Notice") of the Registered Holder (as defined herein), agrees to use
its best efforts to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On such occasion, the
Company will use its best efforts to file a Form S-8 Registration Statement
covering the Registrable Securities within one-hundred twenty (120) days
after receipt of the Demand Notice and use its best efforts to have such
registration statement declared effective promptly thereafter. The demand
for registration may be made at any time prior to the Termination Date. The
Company covenants and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered Holders of the
Options and the Registrable Securities within thirty days from the date of
the receipt of any such Demand Notice. In the event of registration the
Company and the Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out such registration.
(a) Terms of Registration. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities, but the
Holder(s) shall pay any and all underwriting and broker-dealer discounts,
commissions and non-accountable expenses of any underwriter or broker-dealer
selected to sell the Registrable Securities, together with the expenses of
any legal counsel selected by the Holder(s) to represent them in connection
with the sale of the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights granted hereto to
remain effective for a period of sixteen months from the date of the latest
balance sheet of the audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company shall not be
obligated to register the Registrable Securities if such securities may be
sold pursuant to the exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be obligated to register
the Registrable Securities in any state in which the principal stockholders,
officers. directors or employees of the Company may in any way be obligated
to escrow any of their shares of Capital Stock of the Company or in a state
in which the Company may be restricted from conducting its business in any
way, including but not limited to, qualifying to do business, become subject
to tax, or restricted from issuing additional securities or incur
restrictions on compensating officers, directors or employees.
(c) Right To Redeem In Lieu Of Registration. The Company may in
its sole discretion, and in lieu of registration of the Registrable
Securities, pay to the Holder(s) an amount equal to the amount which would
be realized by the Holder(s) upon sale of the Registrable Securities reduced
by the Exercise Price plus the ,3 expenses, fees and broker/dealer
commissions which would be paid by the Holder(s) in the event of
registration and sale of the Registrable Securities. The Company may elect
to make such payment upon notice to the Holder(s) within 30 days of receipt
of a notice of Demand Registration.
11. Modification of Agreement. The Company and the Registered Holder may
by supplemental agreement make any changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any ambiguity or to
correct any defective or inconsistent provision or mistake or error herein
contained; or (ii) that they may deem necessary or desirable and which shall
not adverse{y affect the interest of the holders of Option Certificates;
provided, however, this Agreement shell not otherwise be modified,
supplemented or altered in any respect except with the consent in writing of
the Registered Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding. Additionally, except
as provided in Sections 7 and 8, no change in the number or nature of the
Option Shares purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent in writing of the
Registered Holder or Transferee Holder of the Option Certificate
representing such Option, other than such changes as are specifically
prescribed or allowed by this Agreement.
12. Notices. All notices, demands, elections options or requests
(however characterized or described) required or authorized hereunder shall
be deemed sufficient if made in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee, and if to the
Registered Holder or Transferee Holder of an Option Certificate, at the
address of such holder as set forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the Company, the Registered Holder, each Transferee Holder
and their respective successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other person any right,
remedy or claim or to impose on any other person any duty, liability or
obligation.
14. Further Instruments. The parties hereto shall execute and deliver
any and all such other instruments and shall take any and all other actions
as may be reasonably necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, government authority
or otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its
terms, and the effect of such holding, declaration or pronouncement shall be
limited to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party to this
Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The consent of any
party where required hereunder to act or occurrence shall not be deemed to
be a consent to any other action or occurrence.
17. General Provisions. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Florida. This
Agreement embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understandings relating to
the subject matter hereof, and this Agreement may not be modified or amended
or any term or provision hereof waived or discharged except in writing,
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience and references only and shall not limit or otherwise affect the
meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110196 80,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
registered assigns ("Option Holder") ' is the registered owner of the above
indicated number of Options (hereinafter referred to as the "Option")
expiring on ("Expiration Date"). One (1) Option entitles the Option
Holder to purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation ("Company"), at a
purchase price of One Hundred (100%) percent of the NASD closing bid price
for over-the-counter securities as of the date vested per share of Common
Stock ("Exercise Price"), commencing on November 7, 1996 and terminating on
the Expiration Date ("Exercise Period"), upon surrender of this Option
Certificate with the exercise form hereon duly completed and executed with
payment of the Exercise Price at the office of the Company being ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, subject only to the conditions set
forth herein and in an Option Agreement dated as of November 7, 1996 (the
"Option Agreement") between the Company and Consultant. The Option Holder
may exercise all or any number of Options. Reference hereby is made to the
provisions on the following pages of this Option Certificate and to the
provisions of the Option Agreement, all of which are incorporated by
reference in and made a part of this Option Certificate and shall for all
purposes have the same effect as though fully set forth at this place.
Upon due presentment for transfer of this Option Certificate at the
office of the Company, a new Option Certificate or Option Certificates of
like tenor and evidencing in the aggregate a like number of Options, subject
to any adjustments made in accordance with the provisions of the Option
Agreement, shall be issued to the transferee in exchange for this Option
Certificate, subject to the limitations provided in the Option Agreement,
upon payment to the Company of any tax or governmental charge imposed in
connection with such transfer.
The Option Holder of the Options evidenced by this Option Certificate may
exercise all or any whole number of such Options during the period and in
the manner stated hereon. The Exercise Price shall be payable in lawful
money of the United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If, upon exercise of
any Options evidenced by this Option Certificate, the number of Options
exercised shall be less than the total number of Options so evidenced, there
shall be issued to the Option Holder a new Option Certificate evidencing the
number of Options not so exercised. No Option may be exercised after 5:00
P.M. Fort Lauderdale, FL. Time on the Expiration Date, and any Option not
exercised by such time shall become void, unless extended by the Company.
The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to be signed by its
Chief Executive Officer and by its Secretary, each by an original of his
signature, and has caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for, and to purchase
thereunder, full shares issuable upon exercise of said Options and
delivery of $ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
Please insert Social Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in every particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member firm of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
For Value Received Hereby sell,
assign and transfer unto:
Please insert Social
Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in even, particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member firm of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT
IT WILL NOT SELL, ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE TRANSFER THIS
OPTION EXCEPT AS HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED (THE "ACT") OR UNDER THE SECURITIES
LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of , between
DIGIMEDIA USA, INC. (the "Company"), and FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 1996, between the Company
and the Registered Holder, which Consulting Services Agreement provides for
the issuance of options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of option
certificates (the "Option Certificates") representing [200,000] Options as
compensation under the aforementioned Consulting Services Agreement on such
terms and conditions as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle the holder
("the Registered Holder") or in the aggregate, the " Registered Holders ")
in whose name the Option Certificate shall be registered on the books
maintained by the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option Shares) on
exercise thereof, subject to modification and adjustment as provided in
Section 7. The Option Certificate representing the right to purchase Option
Shares shall he executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and delivered to the
Registered Holder upon execution of this Agreement.
Subject to the provisions of Sections 3, 5 and 6, the Company shall deliver
Option Certificates in required whole number denominations to the Registered
Holder (or Registered Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in Section 6 hereof, no
Option Certificates shall be issued except: (i) Option Certificates
initially issued hereunder; (ii) Option Certificates issued on or after the
initial issuance date, upon the exercise of any Options, to evidence the
unexercised Options held by the exercising Registered Holder; or (iii)
Option Certificates issued after the initial issuance date upon any transfer
or exchange of Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The Option
Certificates shall be substantially in the form attached hereto as Exhibit A
(the "Option Certificate"). The Option Certificates shall be dated as of
the date of their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed Option
Certificates. The Option Certificates shall be originally signed by the
Company's Chief Executive Officer or President, attested to by the Company's
Secretary and embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4 and 7, the
Options when evidenced by a Option Certificate and such other documents as
the Company may require, may be exercised at a price (the "Exercise Price)
of $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 1996 (the
"Option Exercise Price"). Each Option may be exercised in whole or in part
at any time during the period commencing with the date vested (as provided
in the Agreement the "Initial Exercise Date") and terminating at 5:00 p.m.
Fort Lauderdale, FL. time on November 7, 1998 (the "Termination Date").
Each Option shall be deemed to have been exercised immediately prior to the
close of business on the date (the "Exercise Date") of the surrender for
exercise of the Option Certificate. The exercise form, attached hereto as
Exhibit C shall be executed by the Registered Holder (or Registered Holders)
or his attorney duly authorized in writing and will be delivered to the
Company at its corporate office together with payment to the order of the
Company in cash or by official bank or certified check of an amount equal to
the aggregate Exercise Price, in lawful money of the United States of
America.
Unless Option Shares may not be issued as provided herein, the person
entitled to receive the number of Option Shares deliverable on such exercise
shall be treated for all purposes as the holder of such Option Shares as of
the close of business on the Exercise Date. In addition, the Company shall
also, at such time, verify that all of the conditions precedent to the
issuance of Option Shares, set forth in Section 4, have been satisfied as of
the Exercise Date. If any one of the conditions precedent set forth in
Section 4 are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price payment to the
exercising Registered Holder or may hold the same until all such conditions
have been satisfied. The Company shall not be obligated to issue any
fractional share interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such fractional shares
shall be of no value whatsoever. If more than one Option shall be exercised
at one time by the same Registered Holder, the number of full Option Shares
which shall be issuable on exercise thereof shall be computed on the basis
of the aggregate number of full Option Shares issuable on such exercise.
Once the Company has determined that the funds are determined to be
collected, the Company shall notify its common stock transfer agent who
shall cause a common stock share certificate representing the exercised
Options to be issued. The Company may deem and treat the Registered Holder
of the Options at any time as the absolute owner thereof for all purposes,
and the Company shall not be affected by any notice to the contrary. The
Options shall not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's Common Stock or
Option unless the holder shall have exercised the Options and purchased the
Option Shares prior to the record date fixed by the Board of Directors of
the Company for the determination of holders of Common Stock entitled to
such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The Company covenants
that it will at all times reserve and have available from its authorized
Common Stock such number of shares as shall then be issuable on the exercise
of all outstanding Options. The Company covenants that all Option Shares
which shall be so issuable shall be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to
such issue.
The Registered Holder(s) shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the
issuance of the Options, or the issuance, transfer or delivery of the
Options or any Option Shares on exercise of the Options. In the event the
Option Shares are to be delivered in the name other than the name of the
Registered Holder of the Option Certificate, no such delivery shall he made
unless the person requesting the same has paid to the Company the amount of
any such taxes or charges incident thereto.
5. Registration of Transfer. The Option Certificates may be
transferred in whole or in part as provided for herein. Option Certificates
to be transferred shall be surrendered to the Company at its corporate
office. The Company shall execute, issue and deliver in exchange therefor
the Option Certificate or Certificates which the holder making the transfer
shall be entitled to receive.
The Company shall keep transfer books at its corporate office which shall
register Option Certificates and the transfer thereof. On due presentment
for registration of transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and deliver to the
transferee or transferees a new Option Certificate or Certificates
representing an equal aggregate number of Options. All Option Certificates
presented for registration of transfer or exercise shall be duly endorsed or
be accompanied by a written instrument or instruments or transferred in a
form satisfactory to the Company and the Company's counsel. The Company may
require payment of a sum sufficient to cover any tax or other government
charge that may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for exercise or for
exchange in case of mutilated Option Certificates shall be promptly canceled
by the Company. Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of any Option
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the contrary.
6. Loss or Mutilation. On receipt by the Company of evidence
satisfactory as to the ownership of the loss, theft, destruction or
mutilation of any Option Certificate, the Company shall execute and deliver
in lieu thereof, a new Option Certificate representing an equal aggregate
number of Options. In the case of loss, theft or destruction of any Option
Certificates, the individual requesting issuance of a new Option Certificate
shall be required to indemnify the Company in an amount satisfactory to the
Company. In the event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to delivery of a new
Option Certificate. Applicants for a new Option Certificate shall also
comply with such other regulations and pay such other reasonable charges as
the Company may prescribe.
7. Adjustment of Exercise Price and Shares. After each adjustment of
the Exercise Price pursuant to this Section 7, the number of shares of
Option Shares purchasable on the exercise of such Options shall be the
number derived by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to adjustment as
follows:
(a) In the event, prior to the expiration of the Options by exercise
or by their terms, the Company shall issue any shares of its Common Stock as
a share dividend or shall subdivide the number of outstanding shares of
Common Stock into a greater number of shares, then, in either of such
events, the Exercise Price per share of Common Stock purchasable pursuant to
the Options in effect at the time of such action shall be reduced
proportionately and the number of shares purchasable pursuant to the Options
shall be increased proportionately. Conversely, in the event the Company
shall reduce the number of shares of its outstanding Common Stock by
combining such shares into a smaller number of shares, then, in such event,
the Exercise Price per share purchasable pursuant to the Options in effect
at the time of such action shall be increased proportionately and the number
of shares of Common Stock at that time purchasable pursuant to the Options
shall be decreased proportionately. Any dividend paid or distributed on the
Common Stock in shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However, any dividend
paid or distributed on the Common Stock in securities other than Common
Stock of the Company, regardless if exercisable for or convertible into
Common Stock of the Company, shall not he treated as a share dividend
pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the Options shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, and thereafter dissolves, liquidates or winds up its affairs, then
no provision need be made as part of the terms of any such sale,
dissolution, liquidation or winding up to allow Option holders to exercise
all or any Options held, in order to receive the same kind and amount of any
share, securities or assets as may be issuable, distributable or payable on
any such sale, dissolution, liquidation or winding up with respect to each
share of Common Stock of the Company.
(c) Notwithstanding the provisions of this Section 7, no
adjustment on the Exercise Price shall be made whereby such price is
adjusted in an amount less than $0.00 or until the aggregate of such
adjustments shall equal or exceed $0.00.
(d) No adjustment of the Exercise Price shall be made as a result
of or in connection with: (i) the issuance of Common Stock of the Company
pursuant to options, warrants and share purchase agreements outstanding or
in effect on the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings of the Company,
the modification, renewal or extension of any such plan, warrants or
offerings now in effect or hereafter created, or the issuance of Common
Stock on exercise of any such options or warrants; or (iii) the issuance of
Common Stock in connection with an acquisition or merger of any type.
(e) This Option Agreement shall be incorporated by reference on
the Option Certificates.
Before taking any action which would cause an adjustment reducing the
Exercise Price below the then par value of the shares of Common Stock
issuable upon exercise of the Options, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and nonassessable
shares of such Common Stock at such adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be made pursuant to
this Section 7, the Company within thirty (30) days thereafter shall: (i)
notify the Registered Holder of such adjustment setting forth the pertinent
Exercise Price after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is
based; and (ii) cause to be mailed to each of the Registered Holder(s) of
the Option Certificates written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option. In
addition to any adjustments made to the Exercise Price pursuant to
Section 7, the Company's Board of Directors may, in its sole discretion,
reduce the Exercise Price of the Options in effect at any time either for
the life of the Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall notify the
Registered Holder of any such reduction in the Exercise Price.
"The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and Directors of Registered
Holder. This Option shall not be transferred sold, assigned or hypothecated
except that it may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is an officer or
director of Registered Holder on October 3, 1996. All such transfers,
sales, assignments or hypothecation shall be fully identified to the Company
and the transferor shall execute and deliver to the Company such
certificates, endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The Registered Holder
and each Transferee Holder, agrees that they shall not sell, assign. pledge,
hypothecate or otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration under the
Securities Act of 1933, as amended (the "Act") and in compliance with
applicable state securities laws, or the Company receives an opinion of
counsel, satisfactory to the Company and Company counsel, that such
registration is not required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable federal and state
securities laws. In order to make any sale, assignment, pledge or
hypothecation, the transferor must deliver to the Company the assignment
form attached hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if any, payable in
connection therewith. As to the Option, the Company shall transfer the
transferred Option on the books of the Company and shall execute and deliver
a new Option Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of Option Shares
purchasable thereunder. As to the Option Shares, the Company shall cause
its duly authorized common stock transfer agent to transfer the common stock
being transferred.
10. Registration. The Company, upon the one time written demand (the
"Demand Notice") of the Registered Holder (as defined herein), agrees to use
its best efforts to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On such occasion, the
Company will use its best efforts to file a Form S-8 Registration Statement
covering the Registrable Securities within one-hundred twenty (120) days
after receipt of the Demand Notice and use its best efforts to have such
registration statement declared effective promptly thereafter. The demand
for registration may be made at any time prior to the Termination Date. The
Company covenants and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered Holders of the
Options and the Registrable Securities within thirty days from the date of
the receipt of any such Demand Notice. In the event of registration the
Company and the Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out such registration.
(a) Terms of Registration. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities, but the
Holder(s) shall pay any and all underwriting and broker-dealer discounts,
commissions and non-accountable expenses of any underwriter or broker-dealer
selected to sell the Registrable Securities, together with the expenses of
any legal counsel selected by the Holder(s) to represent them in connection
with the sale of the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights granted hereto to
remain effective for a period of sixteen months from the date of the latest
balance sheet of the audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company shall not be
obligated to register the Registrable Securities if such securities may be
sold pursuant to the exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be obligated to register
the Registrable Securities in any state in which the principal stockholders,
officers. directors or employees of the Company may in any way be obligated
to escrow any of their shares of Capital Stock of the Company or in a state
in which the Company may be restricted from conducting its business in any
way, including but not limited to, qualifying to do business, become subject
to tax, or restricted from issuing additional securities or incur
restrictions on compensating officers, directors or employees.
(c) Right To Redeem In Lieu Of Registration. The Company may in
its sole discretion, and in lieu of registration of the Registrable
Securities, pay to the Holder(s) an amount equal to the amount which would
be realized by the Holder(s) upon sale of the Registrable Securities reduced
by the Exercise Price plus the ,3 expenses, fees and broker/dealer
commissions which would be paid by the Holder(s) in the event of
registration and sale of the Registrable Securities. The Company may elect
to make such payment upon notice to the Holder(s) within 30 days of receipt
of a notice of Demand Registration.
11. Modification of Agreement. The Company and the Registered Holder may
by supplemental agreement make any changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any ambiguity or to
correct any defective or inconsistent provision or mistake or error herein
contained; or (ii) that they may deem necessary or desirable and which shall
not adverse{y affect the interest of the holders of Option Certificates;
provided, however, this Agreement shell not otherwise be modified,
supplemented or altered in any respect except with the consent in writing of
the Registered Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding. Additionally, except
as provided in Sections 7 and 8, no change in the number or nature of the
Option Shares purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent in writing of the
Registered Holder or Transferee Holder of the Option Certificate
representing such Option, other than such changes as are specifically
prescribed or allowed by this Agreement.
12. Notices. All notices, demands, elections options or requests
(however characterized or described) required or authorized hereunder shall
be deemed sufficient if made in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee, and if to the
Registered Holder or Transferee Holder of an Option Certificate, at the
address of such holder as set forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the Company, the Registered Holder, each Transferee Holder
and their respective successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other person any right,
remedy or claim or to impose on any other person any duty, liability or
obligation.
14. Further Instruments. The parties hereto shall execute and deliver
any and all such other instruments and shall take any and all other actions
as may be reasonably necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, government authority
or otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its
terms, and the effect of such holding, declaration or pronouncement shall be
limited to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party to this
Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The consent of any
party where required hereunder to act or occurrence shall not be deemed to
be a consent to any other action or occurrence.
17. General Provisions. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Florida. This
Agreement embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understandings relating to
the subject matter hereof, and this Agreement may not be modified or amended
or any term or provision hereof waived or discharged except in writing,
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience and references only and shall not limit or otherwise affect the
meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110296 200,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
registered assigns ("Option Holder") ' is the registered owner of the above
indicated number of Options (hereinafter referred to as the "Option")
expiring on ("Expiration Date"). One (1) Option entitles the Option
Holder to purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation ("Company"), at a
purchase price of One Hundred (100%) percent of the NASD closing bid price
for over-the-counter securities as of the date vested per share of Common
Stock ("Exercise Price"), commencing on November 7, 1996 and terminating on
the Expiration Date ("Exercise Period"), upon surrender of this Option
Certificate with the exercise form hereon duly completed and executed with
payment of the Exercise Price at the office of the Company being ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, subject only to the conditions set
forth herein and in an Option Agreement dated as of November 7, 1996 (the
"Option Agreement") between the Company and Consultant. The Option Holder
may exercise all or any number of Options. Reference hereby is made to the
provisions on the following pages of this Option Certificate and to the
provisions of the Option Agreement, all of which are incorporated by
reference in and made a part of this Option Certificate and shall for all
purposes have the same effect as though fully set forth at this place.
Upon due presentment for transfer of this Option Certificate at the
office of the Company, a new Option Certificate or Option Certificates of
like tenor and evidencing in the aggregate a like number of Options, subject
to any adjustments made in accordance with the provisions of the Option
Agreement, shall be issued to the transferee in exchange for this Option
Certificate, subject to the limitations provided in the Option Agreement,
upon payment to the Company of any tax or governmental charge imposed in
connection with such transfer.
The Option Holder of the Options evidenced by this Option Certificate may
exercise all or any whole number of such Options during the period and in
the manner stated hereon. The Exercise Price shall be payable in lawful
money of the United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If, upon exercise of
any Options evidenced by this Option Certificate, the number of Options
exercised shall be less than the total number of Options so evidenced, there
shall be issued to the Option Holder a new Option Certificate evidencing the
number of Options not so exercised. No Option may be exercised after 5:00
P.M. Fort Lauderdale, FL. Time on the Expiration Date, and any Option not
exercised by such time shall become void, unless extended by the Company.
The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to be signed by its
Chief Executive Officer and by its Secretary, each by an original of his
signature, and has caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for, and to purchase
thereunder, full shares issuable upon exercise of said Options and
delivery of $ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
Please insert Social Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in every particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member firm of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
For Value Received Hereby sell,
assign and transfer unto:
Please insert Social
Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in even, particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member fimi of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT
IT WILL NOT SELL, ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE TRANSFER THIS
OPTION EXCEPT AS HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED (THE "ACT") OR UNDER THE SECURITIES
LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of , between
DIGIMEDIA USA, INC. (the "Company"), and FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 1996, between the Company
and the Registered Holder, which Consulting Services Agreement provides for
the issuance of options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of option
certificates (the "Option Certificates") representing [200,000] Options as
compensation under the aforementioned Consulting Services Agreement on such
terms and conditions as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle the holder
("the Registered Holder") or in the aggregate, the " Registered Holders ")
in whose name the Option Certificate shall be registered on the books
maintained by the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option Shares) on
exercise thereof, subject to modification and adjustment as provided in
Section 7. The Option Certificate representing the right to purchase Option
Shares shall he executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and delivered to the
Registered Holder upon execution of this Agreement.
Subject to the provisions of Sections 3, 5 and 6, the Company shall deliver
Option Certificates in required whole number denominations to the Registered
Holder (or Registered Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in Section 6 hereof, no
Option Certificates shall be issued except: (i) Option Certificates
initially issued hereunder; (ii) Option Certificates issued on or after the
initial issuance date, upon the exercise of any Options, to evidence the
unexercised Options held by the exercising Registered Holder; or (iii)
Option Certificates issued after the initial issuance date upon any transfer
or exchange of Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The Option
Certificates shall be substantially in the form attached hereto as Exhibit A
(the "Option Certificate"). The Option Certificates shall be dated as of
the date of their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed Option
Certificates. The Option Certificates shall be originally signed by the
Company's Chief Executive Officer or President, attested to by the Company's
Secretary and embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4 and 7, the
Options when evidenced by a Option Certificate and such other documents as
the Company may require, may be exercised at a price (the "Exercise Price)
of $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 1996 (the
"Option Exercise Price"). Each Option may be exercised in whole or in part
at any time during the period commencing with the date vested (as provided
in the Agreement the "Initial Exercise Date") and terminating at 5:00 p.m.
Fort Lauderdale, FL. time on November 7, 1998 (the "Termination Date").
Each Option shall be deemed to have been exercised immediately prior to the
close of business on the date (the "Exercise Date") of the surrender for
exercise of the Option Certificate. The exercise form, attached hereto as
Exhibit C shall be executed by the Registered Holder (or Registered Holders)
or his attorney duly authorized in writing and will be delivered to the
Company at its corporate office together with payment to the order of the
Company in cash or by official bank or certified check of an amount equal to
the aggregate Exercise Price, in lawful money of the United States of
America.
Unless Option Shares may not be issued as provided herein, the person
entitled to receive the number of Option Shares deliverable on such exercise
shall be treated for all purposes as the holder of such Option Shares as of
the close of business on the Exercise Date. In addition, the Company shall
also, at such time, verify that all of the conditions precedent to the
issuance of Option Shares, set forth in Section 4, have been satisfied as of
the Exercise Date. If any one of the conditions precedent set forth in
Section 4 are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price payment to the
exercising Registered Holder or may hold the same until all such conditions
have been satisfied. The Company shall not be obligated to issue any
fractional share interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such fractional shares
shall be of no value whatsoever. If more than one Option shall be exercised
at one time by the same Registered Holder, the number of full Option Shares
which shall be issuable on exercise thereof shall be computed on the basis
of the aggregate number of full Option Shares issuable on such exercise.
Once the Company has determined that the funds are determined to be
collected, the Company shall notify its common stock transfer agent who
shall cause a common stock share certificate representing the exercised
Options to be issued. The Company may deem and treat the Registered Holder
of the Options at any time as the absolute owner thereof for all purposes,
and the Company shall not be affected by any notice to the contrary. The
Options shall not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's Common Stock or
Option unless the holder shall have exercised the Options and purchased the
Option Shares prior to the record date fixed by the Board of Directors of
the Company for the determination of holders of Common Stock entitled to
such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The Company covenants
that it will at all times reserve and have available from its authorized
Common Stock such number of shares as shall then be issuable on the exercise
of all outstanding Options. The Company covenants that all Option Shares
which shall be so issuable shall be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to
such issue.
The Registered Holder(s) shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the
issuance of the Options, or the issuance, transfer or delivery of the
Options or any Option Shares on exercise of the Options. In the event the
Option Shares are to be delivered in the name other than the name of the
Registered Holder of the Option Certificate, no such delivery shall he made
unless the person requesting the same has paid to the Company the amount of
any such taxes or charges incident thereto.
5. Registration of Transfer. The Option Certificates may be
transferred in whole or in part as provided for herein. Option Certificates
to be transferred shall be surrendered to the Company at its corporate
office. The Company shall execute, issue and deliver in exchange therefor
the Option Certificate or Certificates which the holder making the transfer
shall be entitled to receive.
The Company shall keep transfer books at its corporate office which shall
register Option Certificates and the transfer thereof. On due presentment
for registration of transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and deliver to the
transferee or transferees a new Option Certificate or Certificates
representing an equal aggregate number of Options. All Option Certificates
presented for registration of transfer or exercise shall be duly endorsed or
be accompanied by a written instrument or instruments or transferred in a
form satisfactory to the Company and the Company's counsel. The Company may
require payment of a sum sufficient to cover any tax or other government
charge that may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for exercise or for
exchange in case of mutilated Option Certificates shall be promptly canceled
by the Company. Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of any Option
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the contrary.
6. Loss or Mutilation. On receipt by the Company of evidence
satisfactory as to the ownership of the loss, theft, destruction or
mutilation of any Option Certificate, the Company shall execute and deliver
in lieu thereof, a new Option Certificate representing an equal aggregate
number of Options. In the case of loss, theft or destruction of any Option
Certificates, the individual requesting issuance of a new Option Certificate
shall be required to indemnify the Company in an amount satisfactory to the
Company. In the event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to delivery of a new
Option Certificate. Applicants for a new Option Certificate shall also
comply with such other regulations and pay such other reasonable charges as
the Company may prescribe.
7. Adjustment of Exercise Price and Shares. After each adjustment of
the Exercise Price pursuant to this Section 7, the number of shares of
Option Shares purchasable on the exercise of such Options shall be the
number derived by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to adjustment as
follows:
(a) In the event, prior to the expiration of the Options by exercise
or by their terms, the Company shall issue any shares of its Common Stock as
a share dividend or shall subdivide the number of outstanding shares of
Common Stock into a greater number of shares, then, in either of such
events, the Exercise Price per share of Common Stock purchasable pursuant to
the Options in effect at the time of such action shall be reduced
proportionately and the number of shares purchasable pursuant to the Options
shall be increased proportionately. Conversely, in the event the Company
shall reduce the number of shares of its outstanding Common Stock by
combining such shares into a smaller number of shares, then, in such event,
the Exercise Price per share purchasable pursuant to the Options in effect
at the time of such action shall be increased proportionately and the number
of shares of Common Stock at that time purchasable pursuant to the Options
shall be decreased proportionately. Any dividend paid or distributed on the
Common Stock in shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However, any dividend
paid or distributed on the Common Stock in securities other than Common
Stock of the Company, regardless if exercisable for or convertible into
Common Stock of the Company, shall not he treated as a share dividend
pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the Options shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, and thereafter dissolves, liquidates or winds up its affairs, then
no provision need be made as part of the terms of any such sale,
dissolution, liquidation or winding up to allow Option holders to exercise
all or any Options held, in order to receive the same kind and amount of any
share, securities or assets as may be issuable, distributable or payable on
any such sale, dissolution, liquidation or winding up with respect to each
share of Common Stock of the Company.
(c) Notwithstanding the provisions of this Section 7, no
adjustment on the Exercise Price shall be made whereby such price is
adjusted in an amount less than $0.00 or until the aggregate of such
adjustments shall equal or exceed $0.00.
(d) No adjustment of the Exercise Price shall be made as a result
of or in connection with: (i) the issuance of Common Stock of the Company
pursuant to options, warrants and share purchase agreements outstanding or
in effect on the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings of the Company,
the modification, renewal or extension of any such plan, warrants or
offerings now in effect or hereafter created, or the issuance of Common
Stock on exercise of any such options or warrants; or (iii) the issuance of
Common Stock in connection with an acquisition or merger of any type.
(e) This Option Agreement shall be incorporated by reference on
the Option Certificates.
Before taking any action which would cause an adjustment reducing the
Exercise Price below the then par value of the shares of Common Stock
issuable upon exercise of the Options, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and nonassessable
shares of such Common Stock at such adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be made pursuant to
this Section 7, the Company within thirty (30) days thereafter shall: (i)
notify the Registered Holder of such adjustment setting forth the pertinent
Exercise Price after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is
based; and (ii) cause to be mailed to each of the Registered Holder(s) of
the Option Certificates written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option. In
addition to any adjustments made to the Exercise Price pursuant to
Section 7, the Company's Board of Directors may, in its sole discretion,
reduce the Exercise Price of the Options in effect at any time either for
the life of the Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall notify the
Registered Holder of any such reduction in the Exercise Price.
"The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and Directors of Registered
Holder. This Option shall not be transferred sold, assigned or hypothecated
except that it may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is an officer or
director of Registered Holder on October 3, 1996. All such transfers,
sales, assignments or hypothecation shall be fully identified to the Company
and the transferor shall execute and deliver to the Company such
certificates, endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The Registered Holder
and each Transferee Holder, agrees that they shall not sell, assign. pledge,
hypothecate or otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration under the
Securities Act of 1933, as amended (the "Act") and in compliance with
applicable state securities laws, or the Company receives an opinion of
counsel, satisfactory to the Company and Company counsel, that such
registration is not required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable federal and state
securities laws. In order to make any sale, assignment, pledge or
hypothecation, the transferor must deliver to the Company the assignment
form attached hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if any, payable in
connection therewith. As to the Option, the Company shall transfer the
transferred Option on the books of the Company and shall execute and deliver
a new Option Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of Option Shares
purchasable thereunder. As to the Option Shares, the Company shall cause
its duly authorized common stock transfer agent to transfer the common stock
being transferred.
10. Registration. The Company, upon the one time written demand (the
"Demand Notice") of the Registered Holder (as defined herein), agrees to use
its best efforts to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On such occasion, the
Company will use its best efforts to file a Form S-8 Registration Statement
covering the Registrable Securities within one-hundred twenty (120) days
after receipt of the Demand Notice and use its best efforts to have such
registration statement declared effective promptly thereafter. The demand
for registration may be made at any time prior to the Termination Date. The
Company covenants and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered Holders of the
Options and the Registrable Securities within thirty days from the date of
the receipt of any such Demand Notice. In the event of registration the
Company and the Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out such registration.
(a) Terms of Registration. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities, but the
Holder(s) shall pay any and all underwriting and broker-dealer discounts,
commissions and non-accountable expenses of any underwriter or broker-dealer
selected to sell the Registrable Securities, together with the expenses of
any legal counsel selected by the Holder(s) to represent them in connection
with the sale of the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights granted hereto to
remain effective for a period of sixteen months from the date of the latest
balance sheet of the audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company shall not be
obligated to register the Registrable Securities if such securities may be
sold pursuant to the exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be obligated to register
the Registrable Securities in any state in which the principal stockholders,
officers. directors or employees of the Company may in any way be obligated
to escrow any of their shares of Capital Stock of the Company or in a state
in which the Company may be restricted from conducting its business in any
way, including but not limited to, qualifying to do business, become subject
to tax, or restricted from issuing additional securities or incur
restrictions on compensating officers, directors or employees.
(c) Right To Redeem In Lieu Of Registration. The Company may in
its sole discretion, and in lieu of registration of the Registrable
Securities, pay to the Holder(s) an amount equal to the amount which would
be realized by the Holder(s) upon sale of the Registrable Securities reduced
by the Exercise Price plus the ,3 expenses, fees and broker/dealer
commissions which would be paid by the Holder(s) in the event of
registration and sale of the Registrable Securities. The Company may elect
to make such payment upon notice to the Holder(s) within 30 days of receipt
of a notice of Demand Registration.
11. Modification of Agreement. The Company and the Registered Holder may
by supplemental agreement make any changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any ambiguity or to
correct any defective or inconsistent provision or mistake or error herein
contained; or (ii) that they may deem necessary or desirable and which shall
not adverse{y affect the interest of the holders of Option Certificates;
provided, however, this Agreement shell not otherwise be modified,
supplemented or altered in any respect except with the consent in writing of
the Registered Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding. Additionally, except
as provided in Sections 7 and 8, no change in the number or nature of the
Option Shares purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent in writing of the
Registered Holder or Transferee Holder of the Option Certificate
representing such Option, other than such changes as are specifically
prescribed or allowed by this Agreement.
12. Notices. All notices, demands, elections options or requests
(however characterized or described) required or authorized hereunder shall
be deemed sufficient if made in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee, and if to the
Registered Holder or Transferee Holder of an Option Certificate, at the
address of such holder as set forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the Company, the Registered Holder, each Transferee Holder
and their respective successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other person any right,
remedy or claim or to impose on any other person any duty, liability or
obligation.
14. Further Instruments. The parties hereto shall execute and deliver
any and all such other instruments and shall take any and all other actions
as may be reasonably necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, government authority
or otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its
terms, and the effect of such holding, declaration or pronouncement shall be
limited to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party to this
Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The consent of any
party where required hereunder to act or occurrence shall not be deemed to
be a consent to any other action or occurrence.
17. General Provisions. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Florida. This
Agreement embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understandings relating to
the subject matter hereof, and this Agreement may not be modified or amended
or any term or provision hereof waived or discharged except in writing,
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience and references only and shall not limit or otherwise affect the
meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110396 200,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
registered assigns ("Option Holder") ' is the registered owner of the above
indicated number of Options (hereinafter referred to as the "Option")
expiring on ("Expiration Date"). One (1) Option entitles the Option
Holder to purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation ("Company"), at a
purchase price of One Hundred (100%) percent of the NASD closing bid price
for over-the-counter securities as of the date vested per share of Common
Stock ("Exercise Price"), commencing on November 7, 1996 and terminating on
the Expiration Date ("Exercise Period"), upon surrender of this Option
Certificate with the exercise form hereon duly completed and executed with
payment of the Exercise Price at the office of the Company being ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, subject only to the conditions set
forth herein and in an Option Agreement dated as of November 7, 1996 (the
"Option Agreement") between the Company and Consultant. The Option Holder
may exercise all or any number of Options. Reference hereby is made to the
provisions on the following pages of this Option Certificate and to the
provisions of the Option Agreement, all of which are incorporated by
reference in and made a part of this Option Certificate and shall for all
purposes have the same effect as though fully set forth at this place.
Upon due presentment for transfer of this Option Certificate at the
office of the Company, a new Option Certificate or Option Certificates of
like tenor and evidencing in the aggregate a like number of Options, subject
to any adjustments made in accordance with the provisions of the Option
Agreement, shall be issued to the transferee in exchange for this Option
Certificate, subject to the limitations provided in the Option Agreement,
upon payment to the Company of any tax or governmental charge imposed in
connection with such transfer.
The Option Holder of the Options evidenced by this Option Certificate may
exercise all or any whole number of such Options during the period and in
the manner stated hereon. The Exercise Price shall be payable in lawful
money of the United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If, upon exercise of
any Options evidenced by this Option Certificate, the number of Options
exercised shall be less than the total number of Options so evidenced, there
shall be issued to the Option Holder a new Option Certificate evidencing the
number of Options not so exercised. No Option may be exercised after 5:00
P.M. Fort Lauderdale, FL. Time on the Expiration Date, and any Option not
exercised by such time shall become void, unless extended by the Company.
The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to be signed by its
Chief Executive Officer and by its Secretary, each by an original of his
signature, and has caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for, and to purchase
thereunder, full shares issuable upon exercise of said Options and
delivery of $ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
Please insert Social Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in every particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member firm of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
For Value Received Hereby sell,
assign and transfer unto:
Please insert Social
Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in even, particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member fimi of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE HEREOF, AGREES THAT
IT WILL NOT SELL, ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE TRANSFER THIS
OPTION EXCEPT AS HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED (THE "ACT") OR UNDER THE SECURITIES
LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of , between
DIGIMEDIA USA, INC. (the "Company"), and FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 1996, between the Company
and the Registered Holder, which Consulting Services Agreement provides for
the issuance of options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of option
certificates (the "Option Certificates") representing [200,000] Options as
compensation under the aforementioned Consulting Services Agreement on such
terms and conditions as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle the holder
("the Registered Holder") or in the aggregate, the " Registered Holders ")
in whose name the Option Certificate shall be registered on the books
maintained by the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option Shares) on
exercise thereof, subject to modification and adjustment as provided in
Section 7. The Option Certificate representing the right to purchase Option
Shares shall he executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and delivered to the
Registered Holder upon execution of this Agreement.
Subject to the provisions of Sections 3, 5 and 6, the Company shall deliver
Option Certificates in required whole number denominations to the Registered
Holder (or Registered Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in Section 6 hereof, no
Option Certificates shall be issued except: (i) Option Certificates
initially issued hereunder; (ii) Option Certificates issued on or after the
initial issuance date, upon the exercise of any Options, to evidence the
unexercised Options held by the exercising Registered Holder; or (iii)
Option Certificates issued after the initial issuance date upon any transfer
or exchange of Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The Option
Certificates shall be substantially in the form attached hereto as Exhibit A
(the "Option Certificate"). The Option Certificates shall be dated as of
the date of their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed Option
Certificates. The Option Certificates shall be originally signed by the
Company's Chief Executive Officer or President, attested to by the Company's
Secretary and embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4 and 7, the
Options when evidenced by a Option Certificate and such other documents as
the Company may require, may be exercised at a price (the "Exercise Price)
of $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 1996 (the
"Option Exercise Price"). Each Option may be exercised in whole or in part
at any time during the period commencing with the date vested (as provided
in the Agreement the "Initial Exercise Date") and terminating at 5:00 p.m.
Fort Lauderdale, FL. time on November 7, 1998 (the "Termination Date").
Each Option shall be deemed to have been exercised immediately prior to the
close of business on the date (the "Exercise Date") of the surrender for
exercise of the Option Certificate. The exercise form, attached hereto as
Exhibit C shall be executed by the Registered Holder (or Registered Holders)
or his attorney duly authorized in writing and will be delivered to the
Company at its corporate office together with payment to the order of the
Company in cash or by official bank or certified check of an amount equal to
the aggregate Exercise Price, in lawful money of the United States of
America.
Unless Option Shares may not be issued as provided herein, the person
entitled to receive the number of Option Shares deliverable on such exercise
shall be treated for all purposes as the holder of such Option Shares as of
the close of business on the Exercise Date. In addition, the Company shall
also, at such time, verify that all of the conditions precedent to the
issuance of Option Shares, set forth in Section 4, have been satisfied as of
the Exercise Date. If any one of the conditions precedent set forth in
Section 4 are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price payment to the
exercising Registered Holder or may hold the same until all such conditions
have been satisfied. The Company shall not be obligated to issue any
fractional share interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such fractional shares
shall be of no value whatsoever. If more than one Option shall be exercised
at one time by the same Registered Holder, the number of full Option Shares
which shall be issuable on exercise thereof shall be computed on the basis
of the aggregate number of full Option Shares issuable on such exercise.
Once the Company has determined that the funds are determined to be
collected, the Company shall notify its common stock transfer agent who
shall cause a common stock share certificate representing the exercised
Options to be issued. The Company may deem and treat the Registered Holder
of the Options at any time as the absolute owner thereof for all purposes,
and the Company shall not be affected by any notice to the contrary. The
Options shall not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's Common Stock or
Option unless the holder shall have exercised the Options and purchased the
Option Shares prior to the record date fixed by the Board of Directors of
the Company for the determination of holders of Common Stock entitled to
such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The Company covenants
that it will at all times reserve and have available from its authorized
Common Stock such number of shares as shall then be issuable on the exercise
of all outstanding Options. The Company covenants that all Option Shares
which shall be so issuable shall be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to
such issue.
The Registered Holder(s) shall pay all documentary, stamp or similar taxes
and other governmental charges that may be imposed with respect to the
issuance of the Options, or the issuance, transfer or delivery of the
Options or any Option Shares on exercise of the Options. In the event the
Option Shares are to be delivered in the name other than the name of the
Registered Holder of the Option Certificate, no such delivery shall he made
unless the person requesting the same has paid to the Company the amount of
any such taxes or charges incident thereto.
5. Registration of Transfer. The Option Certificates may be
transferred in whole or in part as provided for herein. Option Certificates
to be transferred shall be surrendered to the Company at its corporate
office. The Company shall execute, issue and deliver in exchange therefor
the Option Certificate or Certificates which the holder making the transfer
shall be entitled to receive.
The Company shall keep transfer books at its corporate office which shall
register Option Certificates and the transfer thereof. On due presentment
for registration of transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and deliver to the
transferee or transferees a new Option Certificate or Certificates
representing an equal aggregate number of Options. All Option Certificates
presented for registration of transfer or exercise shall be duly endorsed or
be accompanied by a written instrument or instruments or transferred in a
form satisfactory to the Company and the Company's counsel. The Company may
require payment of a sum sufficient to cover any tax or other government
charge that may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for exercise or for
exchange in case of mutilated Option Certificates shall be promptly canceled
by the Company. Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of any Option
Certificate as the absolute owner thereof (notwithstanding any notations of
ownership or writing thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the contrary.
6. Loss or Mutilation. On receipt by the Company of evidence
satisfactory as to the ownership of the loss, theft, destruction or
mutilation of any Option Certificate, the Company shall execute and deliver
in lieu thereof, a new Option Certificate representing an equal aggregate
number of Options. In the case of loss, theft or destruction of any Option
Certificates, the individual requesting issuance of a new Option Certificate
shall be required to indemnify the Company in an amount satisfactory to the
Company. In the event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to delivery of a new
Option Certificate. Applicants for a new Option Certificate shall also
comply with such other regulations and pay such other reasonable charges as
the Company may prescribe.
7. Adjustment of Exercise Price and Shares. After each adjustment of
the Exercise Price pursuant to this Section 7, the number of shares of
Option Shares purchasable on the exercise of such Options shall be the
number derived by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to adjustment as
follows:
(a) In the event, prior to the expiration of the Options by exercise
or by their terms, the Company shall issue any shares of its Common Stock as
a share dividend or shall subdivide the number of outstanding shares of
Common Stock into a greater number of shares, then, in either of such
events, the Exercise Price per share of Common Stock purchasable pursuant to
the Options in effect at the time of such action shall be reduced
proportionately and the number of shares purchasable pursuant to the Options
shall be increased proportionately. Conversely, in the event the Company
shall reduce the number of shares of its outstanding Common Stock by
combining such shares into a smaller number of shares, then, in such event,
the Exercise Price per share purchasable pursuant to the Options in effect
at the time of such action shall be increased proportionately and the number
of shares of Common Stock at that time purchasable pursuant to the Options
shall be decreased proportionately. Any dividend paid or distributed on the
Common Stock in shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However, any dividend
paid or distributed on the Common Stock in securities other than Common
Stock of the Company, regardless if exercisable for or convertible into
Common Stock of the Company, shall not he treated as a share dividend
pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the Options shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, and thereafter dissolves, liquidates or winds up its affairs, then
no provision need be made as part of the terms of any such sale,
dissolution, liquidation or winding up to allow Option holders to exercise
all or any Options held, in order to receive the same kind and amount of any
share, securities or assets as may be issuable, distributable or payable on
any such sale, dissolution, liquidation or winding up with respect to each
share of Common Stock of the Company.
(c) Notwithstanding the provisions of this Section 7, no
adjustment on the Exercise Price shall be made whereby such price is
adjusted in an amount less than $0.00 or until the aggregate of such
adjustments shall equal or exceed $0.00.
(d) No adjustment of the Exercise Price shall be made as a result
of or in connection with: (i) the issuance of Common Stock of the Company
pursuant to options, warrants and share purchase agreements outstanding or
in effect on the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings of the Company,
the modification, renewal or extension of any such plan, warrants or
offerings now in effect or hereafter created, or the issuance of Common
Stock on exercise of any such options or warrants; or (iii) the issuance of
Common Stock in connection with an acquisition or merger of any type.
(e) This Option Agreement shall be incorporated by reference on
the Option Certificates.
Before taking any action which would cause an adjustment reducing the
Exercise Price below the then par value of the shares of Common Stock
issuable upon exercise of the Options, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and nonassessable
shares of such Common Stock at such adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be made pursuant to
this Section 7, the Company within thirty (30) days thereafter shall: (i)
notify the Registered Holder of such adjustment setting forth the pertinent
Exercise Price after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such calculation is
based; and (ii) cause to be mailed to each of the Registered Holder(s) of
the Option Certificates written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option. In
addition to any adjustments made to the Exercise Price pursuant to
Section 7, the Company's Board of Directors may, in its sole discretion,
reduce the Exercise Price of the Options in effect at any time either for
the life of the Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall notify the
Registered Holder of any such reduction in the Exercise Price.
"The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and Directors of Registered
Holder. This Option shall not be transferred sold, assigned or hypothecated
except that it may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is an officer or
director of Registered Holder on October 3, 1996. All such transfers,
sales, assignments or hypothecation shall be fully identified to the Company
and the transferor shall execute and deliver to the Company such
certificates, endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The Registered Holder
and each Transferee Holder, agrees that they shall not sell, assign. pledge,
hypothecate or otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration under the
Securities Act of 1933, as amended (the "Act") and in compliance with
applicable state securities laws, or the Company receives an opinion of
counsel, satisfactory to the Company and Company counsel, that such
registration is not required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable federal and state
securities laws. In order to make any sale, assignment, pledge or
hypothecation, the transferor must deliver to the Company the assignment
form attached hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if any, payable in
connection therewith. As to the Option, the Company shall transfer the
transferred Option on the books of the Company and shall execute and deliver
a new Option Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of Option Shares
purchasable thereunder. As to the Option Shares, the Company shall cause
its duly authorized common stock transfer agent to transfer the common stock
being transferred.
10. Registration. The Company, upon the one time written demand (the
"Demand Notice") of the Registered Holder (as defined herein), agrees to use
its best efforts to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On such occasion, the
Company will use its best efforts to file a Form S-8 Registration Statement
covering the Registrable Securities within one-hundred twenty (120) days
after receipt of the Demand Notice and use its best efforts to have such
registration statement declared effective promptly thereafter. The demand
for registration may be made at any time prior to the Termination Date. The
Company covenants and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered Holders of the
Options and the Registrable Securities within thirty days from the date of
the receipt of any such Demand Notice. In the event of registration the
Company and the Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out such registration.
(a) Terms of Registration. The Company shall bear all fees and
expenses attendant to registering the Registrable Securities, but the
Holder(s) shall pay any and all underwriting and broker-dealer discounts,
commissions and non-accountable expenses of any underwriter or broker-dealer
selected to sell the Registrable Securities, together with the expenses of
any legal counsel selected by the Holder(s) to represent them in connection
with the sale of the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights granted hereto to
remain effective for a period of sixteen months from the date of the latest
balance sheet of the audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company shall not be
obligated to register the Registrable Securities if such securities may be
sold pursuant to the exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be obligated to register
the Registrable Securities in any state in which the principal stockholders,
officers. directors or employees of the Company may in any way be obligated
to escrow any of their shares of Capital Stock of the Company or in a state
in which the Company may be restricted from conducting its business in any
way, including but not limited to, qualifying to do business, become subject
to tax, or restricted from issuing additional securities or incur
restrictions on compensating officers, directors or employees.
(c) Right To Redeem In Lieu Of Registration. The Company may in
its sole discretion, and in lieu of registration of the Registrable
Securities, pay to the Holder(s) an amount equal to the amount which would
be realized by the Holder(s) upon sale of the Registrable Securities reduced
by the Exercise Price plus the ,3 expenses, fees and broker/dealer
commissions which would be paid by the Holder(s) in the event of
registration and sale of the Registrable Securities. The Company may elect
to make such payment upon notice to the Holder(s) within 30 days of receipt
of a notice of Demand Registration.
11. Modification of Agreement. The Company and the Registered Holder may
by supplemental agreement make any changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any ambiguity or to
correct any defective or inconsistent provision or mistake or error herein
contained; or (ii) that they may deem necessary or desirable and which shall
not adverse{y affect the interest of the holders of Option Certificates;
provided, however, this Agreement shell not otherwise be modified,
supplemented or altered in any respect except with the consent in writing of
the Registered Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding. Additionally, except
as provided in Sections 7 and 8, no change in the number or nature of the
Option Shares purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent in writing of the
Registered Holder or Transferee Holder of the Option Certificate
representing such Option, other than such changes as are specifically
prescribed or allowed by this Agreement.
12. Notices. All notices, demands, elections options or requests
(however characterized or described) required or authorized hereunder shall
be deemed sufficient if made in writing and sent by registered or certified
mail, return receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee, and if to the
Registered Holder or Transferee Holder of an Option Certificate, at the
address of such holder as set forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding upon and inure
to the benefit of the Company, the Registered Holder, each Transferee Holder
and their respective successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other person any right,
remedy or claim or to impose on any other person any duty, liability or
obligation.
14. Further Instruments. The parties hereto shall execute and deliver
any and all such other instruments and shall take any and all other actions
as may be reasonably necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative
for any reason by any court of competent jurisdiction, government authority
or otherwise, such holding, declaration or pronouncement shall not affect
adversely any other provision of this Agreement, which shall otherwise
remain in full force and effect and be enforced in accordance with its
terms, and the effect of such holding, declaration or pronouncement shall be
limited to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party to this
Agreement are cumulative and not exclusive of any other rights and remedies
as provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The consent of any
party where required hereunder to act or occurrence shall not be deemed to
be a consent to any other action or occurrence.
17. General Provisions. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of Florida. This
Agreement embodies the entire agreement and understanding between the
parties and supersedes all prior agreements and understandings relating to
the subject matter hereof, and this Agreement may not be modified or amended
or any term or provision hereof waived or discharged except in writing,
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience and references only and shall not limit or otherwise affect the
meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110496
200,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
registered assigns ("Option Holder") ' is the registered owner of the above
indicated number of Options (hereinafter referred to as the "Option")
expiring on ("Expiration Date"). One (1) Option entitles the Option
Holder to purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation ("Company"), at a
purchase price of One Hundred (100%) percent of the NASD closing bid price
for over-the-counter securities as of the date vested per share of Common
Stock ("Exercise Price"), commencing on November 7, 1996 and terminating on
the Expiration Date ("Exercise Period"), upon surrender of this Option
Certificate with the exercise form hereon duly completed and executed with
payment of the Exercise Price at the office of the Company being ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, subject only to the conditions set
forth herein and in an Option Agreement dated as of November 7, 1996 (the
"Option Agreement") between the Company and Consultant. The Option Holder
may exercise all or any number of Options. Reference hereby is made to the
provisions on the following pages of this Option Certificate and to the
provisions of the Option Agreement, all of which are incorporated by
reference in and made a part of this Option Certificate and shall for all
purposes have the same effect as though fully set forth at this place.
Upon due presentment for transfer of this Option Certificate at the
office of the Company, a new Option Certificate or Option Certificates of
like tenor and evidencing in the aggregate a like number of Options, subject
to any adjustments made in accordance with the provisions of the Option
Agreement, shall be issued to the transferee in exchange for this Option
Certificate, subject to the limitations provided in the Option Agreement,
upon payment to the Company of any tax or governmental charge imposed in
connection with such transfer.
The Option Holder of the Options evidenced by this Option Certificate may
exercise all or any whole number of such Options during the period and in
the manner stated hereon. The Exercise Price shall be payable in lawful
money of the United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If, upon exercise of
any Options evidenced by this Option Certificate, the number of Options
exercised shall be less than the total number of Options so evidenced, there
shall be issued to the Option Holder a new Option Certificate evidencing the
number of Options not so exercised. No Option may be exercised after 5:00
P.M. Fort Lauderdale, FL. Time on the Expiration Date, and any Option not
exercised by such time shall become void, unless extended by the Company.
The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended (the "Act"). The securities may not be sold, assigned, pledged,
hypothecated or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with applicable state
securities laws, or the Company receives an opinion of counsel, satisfactory
to the Company and Company counsel, that such registration is not required
and that the sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to be signed by its
Chief Executive Officer and by its Secretary, each by an original of his
signature, and has caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for, and to purchase
thereunder, full shares issuable upon exercise of said Options and
delivery of $ and any applicable taxes.
The undersigned requests that certificates for such shares be issued in
the name of:
Please insert Social Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in every particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member firm of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
For Value Received Hereby sell,
assign and transfer unto:
Please insert Social
Security
or Tax Identification Number
Please print Name and Address
If said number of Options shall not be all the Options evidenced by the
within Option Certificate, the undersigned requests that a new Option
Certificate evidencing the Options not so exercised be issued in the name of
and delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name as written upon
the face of the within Option Certificate in even, particular, or if signed
by any other person, the Form of Assignment thereon must be duly executed
and if the certificate representing the shares or any Option Certificate
representing Options not exercised is to be registered in a name other than
that in which the within Option Certificate is registered, the signature of
the holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member firm of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
EXHIBIT "A" SERVICES
Consulting services to be provided by Consultant shall be as follows:
1. Advice concerning management, marketing, and operational and
consulting strategic planning, corporate organization and structure,
financial matters in connection with expansion of services, acquisitions,
mergers, governmental relations and other similar business concerns.
2. Assist and monitor the services provided by the Company's advertising
firm and public relations firm and other professionals hired by the Company.
3. Such other advisory services as may be mutually agreed upon and which
are compatible with the Consulting Agreement..