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EXHIBIT 6.44
STOCK OPTION GRANT
THIS STOCK OPTION (the "Option") is granted this 6th day of November
2000, by Total Film Group, Inc., a Delaware corporation, (the "Company")
pursuant to a resolution of the Board of Directors of the Company (the "Board")
to Peter Dattilo ("Optionee").
RECITALS:
WHEREAS, the Company has engaged Optionee to provided services to the
Company as its chief financial officer and as additional compensation the
Company has agreed to issue Optionee options to purchase up to 150,000 shares of
the Company's common stock, par value $.001 (the "Common Stock"); and
WHEREAS, the options shall vest over a period of several years and
shall be exercisable provided that the Optionee remains employed by the Company
at the time of vesting;
NOW, THEREFORE, in consideration of the mutual terms and conditions of
this Option, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocable grants to Optionee
the right and option to purchase all or any part of an aggregate of 150,000
shares of Common Stock on the terms and conditions hereof.
2. EXERCISE PRICE. The exercise price of this Option shall be $2.00
per share for the exercise of the first 50,000 Options, $3.00 per share for the
exercise of the next 50,000 Options, and $4.00 per share for the final 50,000
Options.
3. VESTING; TERM OF OPTION. Subject to the other provisions contained
herein, 50,000 of the Options granted pursuant to this Option shall vest on the
day following twelve (12) months of continuous employment of Optionee as chief
financial officer of the Company; 50,000 of the Options granted pursuant to this
Option shall vest on the day following twenty-four (24) months of continuous
employment of Optionee as chief financial officer of the Company; and 50,000 of
the Options granted pursuant to this Option shall vest on the day following
thirty-six (36) months of continuous employment of Optionee as chief financial
officer of the Company. Further subject to the other provisions contained
herein, any Option which has vested may be exercised, in whole or in part, at
any time commencing immediately upon vesting, but prior to 12:00 midnight two
(2) years from the date of vesting. Any Option vested and outstanding at the
time of the Optionee's cessation of employment for any reason as chief financial
officer of the Company shall remain exercisable for a three (3) month period
thereafter, provided no vested Option shall be exercisable after the expiration
of its term. Any Options which have vested during the term of employment but are
not exercised during such three month period after the cessation of employment
as chief financial officer of the Company shall expire and be null and
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void. Any Option not vested at the time of cessation of Optionee's employment
as chief financial officer of the Company shall be null and void. In no event
may an Option be exercised after the expiration of its term.
4. SHAREHOLDER'S RIGHTS. The Optionee shall have the rights of a
shareholder only with respect to Common Stock fully paid for by Optionee under
this Option.
5. PERSONS ENTITLED TO EXERCISE. During the Optionee's lifetime, this
Option can only be exercised by the Optionee, and neither this Option nor any
right hereunder can be transferred other than by testamentary disposition or the
laws of descent and distribution. Neither this Option nor any right hereunder
shall be subject to lien, attachment, execution, or similar process. In the
event of any alienation, assignment, pledge, hypothecation, or other transfer of
this Option or any right hereunder, or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. ADJUSTMENT TO NUMBER OF SHARES OF COMMON STOCK. In the event that
the number of shares of Common Stock of the Company from time to time issued and
outstanding is increased pursuant to a stock split or a stock dividend, the
number of shares of Common Stock then covered by this Option shall be increased
proportionately, with no increase in the total purchase price of the shares then
so covered. In the event that the number of shares of Common Stock of the
Company from time to time issued and outstanding is reduced by a combination or
consolidation of shares, the number of shares of Common Stock then covered by
this Option shall be reduced proportionately, with no reduction in the total
purchase price of the shares then so covered. In the event that the Company
should transfer assets to another corporation and distribute the stock of such
other corporation without the surrender of Common Stock of the Company, and if
such distribution is not taxable as a dividend and no gain or loss is recognized
by reason of section 355 of the Internal Revenue Code of 1986 (the "Code"), or
any amendment or successor statute of like tenor, then the total purchase price
of the Common Stock then covered by each outstanding Option shall be reduced by
an amount that bears the same ratio to the total purchase price then in effect
as the market value of the stock distributed in respect of a share of the Common
Stock of the Company, immediately following the distribution, bears to the
aggregate of the market value at such time of a share of the Common Stock of the
Company plus the stock distributed in respect thereof. In the event that the
Company distributes the stock of a subsidiary to its shareholders, makes a
distribution of a major portion of its assets, or otherwise distributes
significant portion of the value of its issued and outstanding Common Stock to
its shareholders, the number of shares then subject to this Option, or the
exercise price of this Option, may be adjusted in the reasonable discretion of
the Board or a duly authorized committee. All such adjustments shall be made by
the Board or duly authorized committee, whose determination upon the same,
absent demonstrable error, shall be final and binding. No fractional shares
shall be issued, and any fractional shares resulting from the computations
pursuant to this section shall be eliminated from this Option. No adjustment
shall be made for cash dividends, for the issuance of additional shares of
Common Stock for consideration approved by the Board, or for the issuance to
stockholders of rights to subscribe for additional Common Stock or other
securities.
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7. METHOD OF EXERCISE. This Option may be exercised by delivery of a
notice of exercise, a form of which is attached hereto as Exhibit "A" and
incorporated herein by this reference, setting forth the number of Options to be
exercised together with either:
a. A certified check or bank check payable to the order of the
Company in the amount of the full exercise price of the Common Stock being
purchased;
b. Shares of Common Stock of the Company already owned by the
Optionee equal to the exercise price with the Common Stock valued at its fair
market value based on the closing bid quotation for such stock on the close of
business on the day last preceding the date of the exercise of such Option, as
reported on the OTC Bulletin Board, or if not quoted on the OTC Bulletin Board,
then as determined by the Company through any other reliable means of
determination available on the close of business on the day last preceding the
date of such exercise;
c. Options or other rights to purchase Common Stock valued at
the amount by which the closing bid quotations (as determined in accordance with
subparagraph (b) above) of the Common Stock subject to options or other rights
exceeds the exercise or purchase price provided on such options or rights; or
d. Cancellation of debt owed by the Company to the Optionee,
including debt incurred for professional services rendered, employment
relationships, or otherwise, upon presentation of an invoice for services
provided to the Company.
As soon as practicable after receipt by the Company of such notice, a
certificate or certificates representing such shares of Common Stock shall be
issued in the name of the Optionee, or, if the Optionee shall so request in the
notice exercising the Option, in the name of the Optionee and another person
jointly, with right of survivorship, and shall be delivered to the Optionee. If
this Option is not exercised with respect to all Common Stock subject hereto,
Optionee shall be entitled to receive a similar Option of like tenor covering
the number of shares of Common Stock with respect to which this Option shall not
have been exercised.
8. WITHHOLDING. If the exercise of this Option is subject to
withholding or other trust fund payment requirements of the Code or applicable
state or local laws, such requirements may, at the discretion of the Board or a
duly authorized committee and to the extent permitted by the then governing
provisions of the Code, be met (i) by the holder of this Option either
delivering shares of Common Stock or canceling Options or other rights to
acquire Common Stock with a fair market value equal to such requirements; (ii)
by the Company withholding shares of Common Stock subject to this Option with a
fair market value equal to such requirements; or (iii) by the Company making
such withholding or other trust fund payment and the Optionee reimbursing the
Company such amount paid within 10 days after written demand therefor from the
Company.
9. AVAILABILITY OF SHARES. During the term of this Option, the Company
shall at all times reserve for issuance the number of shares of Common Stock
subject to this Option.
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10. LIMITATIONS ON RIGHT TO EXERCISE. If the Board of Directors, in its
sole discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or federal law, this
Option may not be exercised, in whole or in part, until such listing,
registration, or qualification shall have been obtained free of any conditions
not acceptable to the board.
11. RESTRICTIONS ON TRANSFER. The Option and the Common Stock subject
to the Option (collectively referred to as the "Securities") are subject to
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and any applicable state securities statutes. Optionee acknowledges that
unless a registration statement with respect to the Securities is filed and
declared effective by the Securities and Exchange Commission, and the
appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if pursuant to an exemption from such
registration requirements and only after the Optionee provides an opinion of
counsel or other evidence satisfactory to the Company to the effect that
registration is not required. In some states, specific conditions must be met or
approval of the securities regulatory authorities may be required before any
such offer or sale. If Rule 144 is available (and no assurance is given that it
would be), only routine sales of the Common Stock in limited amounts can be made
after one year following the acquisition date of the Securities, as determined
under Rule 144(d), in accordance with the terms and conditions of Rule 144. The
Company is under no obligation to make Rule 144 available. In the event Rule 144
is not available, compliance with Regulation A or some other disclosure
exemption may be required before the Optionee can sell, transfer, or otherwise
dispose of the Securities without registration.
If the Securities are not registered, the Company may refuse to
transfer the Securities to any transferee who does not furnish in writing to the
Company the same representations and warranties set forth in this paragraph and
agree to the same conditions with respect to such Securities as are set forth
herein. The Company may further refuse to transfer the Securities if certain
circumstances are present reasonably indicating that the proposed transferee's
representations are not accurate. In any event, in the absence of an effective
registration statement covering the Securities, the Company may refuse to
consent to any transfer in the absence of an opinion of legal counsel,
satisfactory to and independent of counsel of the Company, that such proposed
transfer is consistent with the above conditions and applicable securities laws.
12. RECORD OWNER. The Company may deem the Optionee as the absolute
owner of this Option for all purposes. This Option is exercisable only by the
Optionee or by the Optionee's duly designated or appointed representative. This
Option is not assignable.
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13. NO RIGHT OF EMPLOYMENT. Nothing contained in this Option shall be
construed as conferring on the Optionee any right to continue or remain as an
employee of the Company or its subsidiaries.
14. VALIDITY AND CONSTRUCTION. The validity and construction of this
Option shall be governed by the laws of the State of Utah.
IN WITNESS WHEREOF, the parties hereto have executed this document the
day and year first above written.
Company: Total Film Group, Inc.
By /s/ Eli Boyer
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Eli Boyer, Treasurer
Optionee: /s/ Peter Datillo
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Peter Datillo
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EXHIBIT "A"
FORM OF EXERCISE
(To be signed only upon exercise of Option)
To: Total Film Group, Inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, __________________ shares of Common Stock of Total Film
Group, Inc. Enclosed is payment in the amount of $_____________________________,
the exercise price of the Common Stock to be acquired. Please have the
certificate(s) registered in the name of _______________________ and delivered
to _________________________________________________________________. If this
exercise does not include all of the Common Stock covered by the attached
Option, please deliver a new Option of like tenor for the balance of the
Common Stock to the undersigned at the foregoing address.
DATED this ___________ day of ____________________ 200____.
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Signature of Optionee
