EXHIBIT 10.26
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE
SALE IS MADE IN ACCORDANCE WITH RULE 144, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES, REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
OPTION TO PURCHASE COMMON STOCK
OF
SAC TECHNOLOGIES, INC.
Void after November 13, 2007
This certifies that, for value received, JEFFRY BROWN ("Holder"), is
entitled, subject to the terms set forth below, to purchase from SAC
TECHNOLOGIES, INC., a Minnesota corporation (the "Company"), shares of the
common stock, $.01 par value per share, of the Company ("Common Stock"), as
constituted on the date hereof (the "Option Issue Date"), with the Notice of
Exercise attached hereto duly executed, and simultaneous payment therefor in
lawful money of the United States or as otherwise provided in Section 3 hereof,
at the Exercise Price then in effect. The number, character and Exercise Price
of the shares of Common Stock issuable upon exercise hereof are subject to
adjustment as provided herein.
1. TERM OF OPTION. Subject to compliance with the vesting provisions
identified at Section 2.3 hereof, this Option shall be exercisable, in whole or
in part, during the term commencing on the Option Issue Date and ending at 5:00
p.m. CST on November 13, 2007 (the "Option Expiration Date") and shall be void
thereafter.
2. NUMBER OF SHARES, EXERCISE PRICE AND VESTING PROVISIONS.
2.1 NUMBER OF SHARES. The number of shares of Common Stock
which may be purchased pursuant to this Option shall be 280,000 shares (the
"Shares"), subject, however, to adjustment pursuant to Section 11 hereof.
2.2 EXERCISE PRICE. The Exercise Price at which this Option,
or portion thereof, may be exercised shall be $.6875(1) per Share, subject,
however, to adjustment pursuant to Section 11 hereof.
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(1) The last sale price of the Company's common stock as reported on the OTC
Electronic Bulletin Board on the date of grant.
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2.3 VESTING. This Option shall vest in accordance with the
following schedule:
Upon Holder's commencement of
employment with the Company............ 120,000 Shares
Commencing December 1, 2000 and on
the first day of each month
thereafter and terminating October 1,
2002, so long as Holder remains
employed by the Company................ 6,667 Shares per month
On November 1, 2002, so long as
Holder remains employed by the
Company................................ 6,659 Shares
provided, however that if the Holder is terminated by the Company on or before
November 13, 2002 pursuant to Section 4(e) of that certain Employment Agreement
dated November 13, 2000 by and between the Company and Holder, Options to
purchase the lesser of (i) sixty thousand and three (60,003) shares of Common
Stock; and (ii) the number of shares of Common Stock issuable upon the exercise
of the remaining unvested Options hereof shall vest on the date of termination.
3. EXERCISE OF OPTION.
3.1 PAYMENT OF EXERCISE PRICE. Subject to the terms hereof,
the purchase rights represented by this Option are exercisable by the Holder in
whole or in part, at any time, or from time to time, by the surrender of this
Option and the Notice of Exercise annexed hereto duly completed and executed on
behalf of the Holder, at the office of the Company (or such other office or
agency of the Company as it may designate by notice in writing to the Holder at
the address of the Holder appearing on the books of the Company) accompanied by
payment of the Exercise Price in full either (i) in cash or by bank or certified
check for the Shares with respect to which this Option is exercised; (ii) by
delivery to the Company of shares of the Company's Common Stock having a Fair
Market Value (as defined below) equal to the aggregate Exercise Price of the
Shares being purchased which Holder is the record and beneficial owner of and
which have been held by the Holder for at least six (6) months; or (iii) by
delivering to the Company a Notice of Exercise together with an irrevocable
direction to a broker-dealer registered under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), to sell a sufficient portion of the
Shares and deliver the sales proceeds directly to the Company to pay the
Exercise Price; or (iv) by any combination of the procedures set forth in
subsections (i), (ii) and (iii) of this Section 3.1.
3.2 FAIR MARKET VALUE. If previously owned shares of Common
Stock are tendered as payment of the Exercise Price, the value of such shares
shall be the "Fair Market Value" of such shares on the trading date immediately
preceding the date of exercise. For the purpose of this Agreement, the "Fair
Market Value" shall be:
(a) If the Common Stock is admitted to quotation on
the National Association of Securities Dealers Automated Quotation System
("NASDAQ"), the Fair Market Value on any given date shall be the average of the
highest bid and lowest asked prices of the Common Stock as reported for such
date or, if no bid and asked prices were reported for such date, for the last
day preceding such date for which such prices were reported;
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(b) If the Common Stock is admitted to trading on a
United States securities exchange or the NASDAQ National Market System, the Fair
Market Value on any date shall be the closing price reported for the Common
Stock on such exchange or system for such date or, if no sales were reported for
such date, for the last day preceding such date for which a sale was reported.
Notwithstanding the foregoing, the Fair Market Value of the Common Stock on the
effective date of the Initial Public Offering (as defined in Section 7.2) shall
be the offering price to the public of the Common Stock on such date;
(c) If the Common Stock is traded in the
over-the-counter market and not on any national securities exchange nor in the
NASDAQ Reporting System, the Fair Market Value shall be the average of the mean
between the last bid and ask prices per share, as reported by the National
Quotation Bureau, Inc., or an equivalent generally accepted reporting service,
or if not so reported, the average of the closing bid and asked prices for a
share as furnished to the Company by any member of the National Association of
Securities Dealers, Inc., selected by the Company for that purpose; or
(d) If the Fair Market Value of the Common Stock
cannot be determined on the basis previously set forth in this definition on the
date that the Fair Market Value is to be determined, the Board of Directors of
the Company shall in good faith determine the Fair Market Value of the Common
Stock on such date.
If the tender of previously owned shares would result in an issuance of a whole
number of Shares and a fractional Share of Common Stock, the value of such
fractional share shall be paid to the Company in cash or by check by the Holder.
3.3 TERMINATION OF EMPLOYMENT; DEATH.
(a) If Holder shall cease to be employed by the Company, all
Options to which Holder is then entitled to exercise may be exercised only
within ninety (90) days after the termination of employment and prior to the
Option Termination Date or, if such termination was due to disability or
retirement (as hereinafter defined), within one (1) year after termination of
employment and prior to the Option Termination Date. Notwithstanding the
foregoing, in the event that any termination of employment shall be for Cause as
that term is defined in the employment agreement dated November 13, 2000 by and
between the Company and Holder, then this Option shall forthwith terminate.
(b) If Holder shall die while employed by the Company and
prior to the Option Termination Date, any Options then exercisable may be
exercised only within one (1) year after Holder's death, prior to the Option
Termination Date and only by the Holder's personal representative or persons
entitled thereto under the Holder's will or the laws of descent and
distribution.
(c) This Option may not be exercised for more Shares (subject
to adjustment as provided in Section 11 hereof) after the termination of the
Holder's employment or death, as the case may be, than the Holder was entitled
to purchase thereunder at the time of the termination of the Holder's employment
or death.
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3.4 EXERCISE DATE; DELIVERY OF CERTIFICATES. This Option shall
be deemed to have been exercised immediately prior to the close of business on
the date of its surrender for exercise as provided above, and Holder shall be
treated for all purposes as the holder of record of such Shares as of the close
of business on such date. As promptly as practicable on or after such date and
in any event within ten (10) days thereafter, the Company at its expense shall
issue and deliver to the Holder a certificate or certificates for the number of
Shares issuable upon such exercise. In the event that this Option is exercised
in part, the Company at its expense will execute and deliver a new Option of
like tenor exercisable for the number of shares for which this Option may then
be exercised.
4. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this Option.
In lieu of any fractional share to which the Holder would otherwise be entitled,
the Company shall make a cash payment equal to the Exercise Price multiplied by
such fraction.
5. REPLACEMENT OF OPTION. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Option and, in the case of loss, theft or destruction, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Option, the
Company at its expense shall execute and deliver, in lieu of this Option, a new
Option of like tenor and amount.
6. RIGHTS OF STOCKHOLDER. Except as otherwise contemplated herein, the
Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise until the Option shall have been exercised as
provided herein.
7. TRANSFER OF OPTION.
7.1. NON-TRANSFERABILITY. This Option shall not be assigned,
transferred, pledged or hypothecated in any way, nor subject to execution,
attachment or similar process, otherwise than by will or by the laws of descent
and distribution. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of this Option contrary to the provisions hereof, and the levy
of an execution, attachment, or similar process upon the Option, shall be null
and void and without effect.
7.2. COMPLIANCE WITH SECURITIES LAWS; RESTRICTIONS ON
TRANSFERS. In addition to restrictions on transfer of this Option and Shares set
forth in Section 7.1 above.
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(a) The Holder of this Option, by acceptance hereof,
acknowledges that this Option and the Shares to be issued upon exercise hereof
are being acquired solely for the Holder's own account and not as a nominee for
any other party, and for investment (unless such shares are subject to resale
pursuant to an effective prospectus), and that the Holder will not offer, sell
or otherwise dispose of any Shares to be issued upon exercise hereof except
under circumstances that will not result in a violation of applicable federal
and state securities laws. Upon exercise of this Option, the Holder shall, if
requested by the Company, confirm in writing, in a form satisfactory to the
Company, that the Shares of Common Stock so purchased are being acquired solely
for the Holder's own account and not as a nominee for any other party, for
investment (unless such shares are subject to resale pursuant to an effective
prospectus), and not with a view toward distribution or resale.
(b) Neither this Option nor any share of Common Stock issued
upon exercise of this Option may be offered for sale or sold, or otherwise
transferred or sold in any transaction which would constitute a sale thereof
within the meaning of the 1933 Act, unless (i) such security has been registered
for sale under the 1933 Act and registered or qualified under applicable state
securities laws relating to the offer an sale of securities; (ii) exemptions
from the registration requirements of the 1933 Act and the registration or
qualification requirements of all such state securities laws are available and
the Company shall have received an opinion of counsel satisfactory to the
Company that the proposed sale or other disposition of such securities may be
effected without registration under the 1933 Act and would not result in any
violation of any applicable state securities laws relating to the registration
or qualification of securities for sale, such counsel and such opinion to be
satisfactory to the Company.
(c) All Shares issued upon exercise hereof shall be stamped or
imprinted with a legends in substantially the following form (in addition to any
legend required by state securities laws).
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE
SALE IS MADE IN ACCORDANCE WITH RULE 144, OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES, REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
(d) Holder recognizes that investing in the Option and the
Shares involves a high degree of risk, and Holder is in a financial position to
hold the Option and the Shares indefinitely and is able to bear the economic
risk and withstand a complete loss of its investment in the Option and the
Shares. The Holder is a sophisticated investor and is capable of evaluating the
merits and risks of investing in the Company. The Holder has had an opportunity
to discuss the Company's business, management and financial affairs with the
Company's management, has been given full and complete access to information
concerning the Company, and has utilized
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such access to its satisfaction for the purpose of obtaining information or
verifying information and has had the opportunity to inspect the Company's
operation. Holder has had the opportunity to ask questions of, and receive
answers from the management of the Company (and any person acting on its behalf)
concerning the Option and the Shares and the agreements and transactions
contemplated hereby, and to obtain any additional information as Holder may have
requested in making its investment decision.
(e) Holder acknowledges and represents: (i) that he has been
afforded the opportunity to review and is familiar with the business prospects
and finances of the Company and has based his decision to invest solely on the
information contained therein and has not been furnished with any other
literature, prospectus or other information except as included in such reports;
(ii) he is at least 21 years of age; (iii) he has adequate means of providing
for his current needs and personal contingencies; (iv) he has no need for
liquidity for his investment in the Option or Shares; (v) he maintains his
domicile and is not a transient or temporary resident at the address on the
books and records of the Company; (vi) all of his investments and commitments to
non-liquid assets and similar investments are, after his acquisition of the
Option and Shares, will be reasonable in relation to his net worth and current
needs; (vii) he understands that no federal or state agency has approved or
disapproved the Option or Shares or made any finding or determination as to the
fairness of the Option and Common Stock for investment; and (viii) he recognizes
that the Common Stock is not presently eligible for public trading and that the
Company has made no representations, warranties, or assurances as to the future
trading value of the Common Stock, whether a public market will develop for the
resale of the Common Stock, or if developed whether it will continue.
8. RESERVATION AND ISSUANCE OF STOCK; PAYMENT OF TAXES.
(a) The Company covenants that during the term that this
Option is exercisable, the Company will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the
Shares upon the exercise of this Option, and from time to time will take all
steps necessary to amend its Certificate of Incorporation to provide sufficient
reserves of shares of Common Stock issuable upon the exercise of the Option.
(b) The Company further covenants that all shares of Common
Stock issuable upon the due exercise of this Option will be free and clear from
all taxes or liens, charges and security interests created by the Company with
respect to the issuance thereof, however, the Company shall not be obligated or
liable for the payment of any taxes, liens or charges of Holder, or any other
party contemplated by Section 7, incurred in connection with the issuance of
this Option or the Common Stock upon the due exercise of this Option. The
Company agrees that its issuance of this Option shall constitute full authority
to its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the shares of Common Stock upon
the exercise of this Option. The Common Stock issuable upon the due exercise of
this Option, will, upon issuance in accordance with the terms hereof, be duly
authorized, validly issued, fully paid and non-assessable.
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(c) Upon exercise of the Option, the Company shall have the
right to require the Holder to remit to the Company an amount sufficient to
satisfy federal, state and local tax withholding requirements prior to the
delivery of any certificate for Shares of Common Stock purchased pursuant to the
Option, if in the opinion of counsel to the Company such withholding is required
under applicable tax laws.
(d) If Holder is obligated to pay the Company an amount
required to be withheld under applicable tax withholding requirements may pay
such amount (i) in cash; (ii) in the discretion of the Board of Directors of the
Company, through the delivery to the Company of previously-owned shares of
Common Stock having an aggregate Fair Market Value equal to the tax obligation
provided that the previously owned shares delivered in satisfaction of the
withholding obligations must have been held by the Holder for at least six (6)
months; (iii) in the discretion of the Board of Directors of the Company,
through the withholding of Shares of Common Stock otherwise issuable to the
Holder in connection with the Option exercise; or (iv) in the discretion of the
Board of Directors of the Company, through a combination of the procedures set
forth in subsections (i), (ii) and (iii) of this Section 8(d).
9. NOTICES.
(a) Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section 11 hereof, the
Company shall issue a certificate signed by its Chief Financial Officer setting
forth, in reasonable detail, the event requiring the adjustment, the amount of
the adjustment, the method by which such adjustment was calculated, and the
Exercise Price and number of shares purchasable hereunder after giving effect to
such adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Option.
(b) All notices, advices and communications under this Option
shall be deemed to have been given, (i) in the case of personal delivery, on the
date of such delivery and (ii) in the case of mailing, on the third business day
following the date of such mailing, addressed as follows:
If to the Company:
SAC Technologies, Inc.
1285 Corporate Center Drive
Suite 175
Eagan, MN 55121
With a copy to:
Buchanan Ingersoll Professional Corporation
11 Penn Center, 14th Floor
1835 Market Street
Philadelphia, Pa. 19103
Attn.: Vincent A. Vietti, Esquire
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and to the Holder:
Jeffry R. Brown
5710 Northwood Ridge
Bloomington, MN 55437
Either of the Company or the Holder may from time to time change the
address to which notices to it are to be mailed hereunder by notice in
accordance with the provisions of this Paragraph 9.
10. AMENDMENTS.
(a) Any term of this Option may be amended with the written
consent of the Company and the Holder. Any amendment effected in accordance with
this Section 10 shall be binding upon the Holder, each future holder and the
Company.
(b) No waivers of, or exceptions to, any term, condition or
provision of this Option, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision.
11. ADJUSTMENTS. The number of Shares of Common Stock purchasable
hereunder and the Exercise Price is subject to adjustment from time to time upon
the occurrence of certain events, as follows:
11.1. REORGANIZATION, MERGER OR SALE OF ASSETS. If at any time
while this Option, or any portion thereof, is outstanding and unexpired there
shall be (i) a reorganization (other than a combination, reclassification,
exchange or subdivision of shares otherwise provided for herein); or (ii) a
merger or consolidation of the Company in which the Company is the surviving
entity but the shares of the Company's capital stock outstanding immediately
prior to the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise, then, as a part of such
reorganization, merger, or consolidation, lawful provision shall be made so that
the holder of this Option shall upon such reorganization, merger, or
consolidation, have the right by exercising such Option, to purchase the kind
and number of shares of Common Stock or other securities or property (including
cash) otherwise receivable upon such reorganization, merger or consolidation by
a holder of the number of shares of Common Stock that might have been purchased
upon exercise of such Option immediately prior to such reorganization, merger or
consolidation. The foregoing provisions of this Section 11.1 shall similarly
apply to successive reorganizations, consolidations or mergers. If the per-share
consideration payable to the Holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Company's
Board of Directors. In all events, appropriate adjustment (as determined in good
faith by the Company's Board of Directors) shall be made in the application of
the provisions of this Option with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this
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Option shall be applicable after that event, as near as reasonably may be, in
relation to any shares or other property deliverable after that event upon
exercise of this Option.
11.2. RECLASSIFICATION. If the Company, at any time while this
Option, or any portion thereof, remains outstanding and unexpired, by
reclassification of securities or otherwise, shall change any of the securities
as to which purchase rights under this Option exist into the same or a different
number of securities of any other class or classes, this Option shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities that
were subject to the purchase rights under this Option immediately prior to such
reclassification or other change and the Exercise Price therefor shall be
appropriately adjusted, all subject to further adjustment as provided in this
Section 11.
11.3. SPLIT, SUBDIVISION OR COMBINATION OF SHARES. If the
Company at any time while this Option, or any portion thereof, remains
outstanding and unexpired shall split, subdivide or combine the securities as to
which purchase rights under this Option exist, into a different number of
securities of the same class, the Exercise Price and the number of shares
issuable upon exercise of this Option shall be proportionately adjusted.
11.4. ADJUSTMENTS FOR DIVIDENDS IN STOCK OR OTHER SECURITIES
OR PROPERTY. If while this Option, or any portion hereof, remains outstanding
and unexpired the holders of the securities as to which purchase rights under
this Option exist at the time shall have received, or, on or after the record
date fixed for the determination of eligible Stockholders, shall have become
entitled to receive, without payment therefor, other or additional stock or
other securities or property (other than cash) of the Company by way of
dividend, then and in each case, this Option shall represent the right to
acquire, in addition to the number of shares of the security receivable upon
exercise of this Option, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other securities or
property (other than cash) of the Company that such holder would hold on the
date of such exercise had it been the holder of record of the security
receivable upon exercise of this Option on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such
exercise, retained such shares and/or all other additional stock, other
securities or property available by this Option as aforesaid during such period.
11.5 GOOD FAITH. The Company will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all the provisions of this Section 11
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the Holder of this Option against impairment.
12. FUNDAMENTAL TRANSACTION. For purposes of this Section 12, a
"Fundamental Transaction" shall mean (i) the dissolution or liquidation of the
Company; (ii) a merger, reorganization or consolidation in which the Company is
acquired by another person or entity (other than a holding company formed by the
Company); (iii) the sale of all or substantially all of the assets of the
Company to any person or persons; or (iv) the sale in a single transaction or a
series of related transactions of voting stock representing more than fifty
percent (50%) of the
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voting power of all outstanding shares of the Company to any person or persons.
In the event of a Fundamental Transaction, this Option shall automatically
become immediately exercisable in full, and shall be deemed to have attained
such status immediately prior to the Fundamental Transaction. Holder shall be
given at least 15 days prior written notice of a Fundamental Transaction and
shall be permitted to exercise any vested Options during this 15 day period
(including those Options vesting as a result of the provisions of this Section
12). In the event of a Fundamental Transaction, any Options which are neither
assumed or substituted for in connection with the Fundamental Transaction nor
exercised as of the date of the Fundamental Transaction, shall terminate and
cease to be outstanding effective as of the date of the Fundamental Transaction,
unless otherwise provided by the Board of Directors of the Company.
13. SEVERABILITY. Whenever possible, each provision of this Option
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Option is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this Option
in such jurisdiction or affect the validity, legality or enforceability of any
provision in any other jurisdiction, but this Option shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
14. GOVERNING LAW. The corporate law of the State of Minnesota shall
govern all issues and questions concerning the relative rights of the Company
and its stockholders. All other questions concerning the construction, validity,
interpretation and enforceability of this Option and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of Minnesota, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Minnesota or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Minnesota.
15. JURISDICTION. The Holder and the Company agree to submit to
personal jurisdiction and to waive any objection as to venue in the federal or
state courts of Minnesota. Service of process on the Company or the Holder in
any action arising out of or relating to this Option shall be effective if
mailed to such party at the address listed in Section 9 hereof.
16. ARBITRATION. If a dispute arises as to interpretation of this
Option, it shall be decided finally by three arbitrators in an arbitration
proceeding conforming to the Rules of the American Arbitration Association
applicable to commercial arbitration. The arbitrators shall be appointed as
follows: one by the Company, one by the Holder and the third by the said two
arbitrators, or, if they cannot agree, then the third arbitrator shall be
appointed by the American Arbitration Association. The third arbitrator shall be
chairman of the panel and shall be impartial. The arbitration shall take place
in Minneapolis, Minnesota. The decision of a majority of the arbitrators shall
be conclusively binding upon the parties and final, and such decision shall be
enforceable as a judgment in any court of competent jurisdiction. Each party
shall pay the fees and expenses of the arbitrator appointed by it, its counsel
and its witnesses. The parties shall share equally the fees and expenses of the
impartial arbitrator.
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17. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
execution, delivery and performance by the Company of this Option: (i) are
within the Company's corporate power; (ii) have been duly authorized by all
necessary or proper corporate action; (iii) are not in contravention of the
Company's certificate of incorporation or bylaws; (iv) will not violate in any
material respect, any law or regulation, including any and all Federal and state
securities laws, or any order or decree of any court or governmental
instrumentality; and (v) will not, in any material respect, conflict with or
result in the breach or termination of, or constitute a default under any
agreement or other material instrument to which the Company is a party or by
which the Company is bound.
18. SUCCESSORS AND ASSIGNS. This Option shall inure to the benefit of
and be binding on the respective successors, assigns and legal representatives
of the Holder and the Company.
19. COUNTERPARTS. This Option may be executed in two or more
counterparts and delivered via facsimile, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, the Company and Holder have caused this Option to
be executed on this 13th day of November, 2000.
SAC TECHNOLOGIES, INC..
By: /s/ Gary Wendt
-------------------------------
Gary Wendt
Chief Financial Officer
AGREED AND ACCEPTED:
JEFFRY R. BROWN
/s/ Jeffry R. Brown
-----------------------------
Signature
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NOTICE OF EXERCISE
TO: [_____________________________]
(1) The undersigned hereby elects to purchase _______ shares of Common
Stock of SAC TECHNOLOGIES, INC. pursuant to the terms of the attached Option,
and tenders herewith payment of the purchase price for such shares in full in
the following manner (please check one of the following choices):
[ ] In Cash
[ ] Cashless exercise through a broker; or
[ ] Delivery of previously owned Shares.
(2) In exercising this Option, the undersigned hereby confirms and
acknowledges that the shares of Common Stock to be issued upon conversion
thereof are being acquired solely for the account of the undersigned and not as
a nominee for any other party, and for investment (unless such shares are
subject to resale pursuant to an effective prospectus), and that the undersigned
will not offer, sell or otherwise dispose of any such shares of Common Stock
except under circumstances that will not result in a violation of the Securities
Act of 1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned.
JEFFRY R. BROWN
-------------------------- -----------------------------------
(Date) (Signature)
12
