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THE OPTION AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF OR EXERCISED UNLESS (i) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS SHALL
HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR (ii) AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. AN INVESTMENT IN
THESE SECURITIES INVOLVES A HIGH DEGREE OF RISK. HOLDERS MUST RELY ON THEIR OWN
ANALYSIS OF THE INVESTMENT AND ASSESSMENT OF THE RISKS INVOLVED.
COMMON STOCK OPTION
(NONTRANSFERABLE)
FONECASH, INC.
(A DELAWARE CORPORATION)
FOR VALUE RECEIVED, FONECASH, INC. (the "Corporation") hereby grants to
DAVID MARKS (the "Holder"), subject to the terms and conditions hereinafter set
forth, the option to purchase an aggregate of four hundred fifty thousand
(450,000) shares of the common stock $0.0001 par value per share (the "Common
Stock") of the Corporation. The exercise price per share and the number of
shares of Common Stock issuable upon exercise of the Option is subject to
adjustment as hereinafter provided.
1. TERM AND EXERCISE.
(a) This Option may be exercised by the Holder, in whole or in
part, at any time prior to the expiration of this Option, which expiration shall
occur five (5) years from the date of the issuance of this Option.
(b) The Holder shall exercise this Option by surrender to the
Corporation of this Option with the Purchase Form attached hereto as Exhibit
"A", duly executed, accompanied by payment in cash or by check of the price
hereinafter set forth for the Shares of the Common Stock so purchased (the
"Option Price"). The Holder may purchase up to 100,000 Shares of Common Stock
underlying this Option by paying the amount determined to be capital and issuing
the Corporation an 8%, six month promissory note for the balance.
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(c) Within ten (10) business days following the exercise of
this Option by the Holder as hereinabove provided, the Corporation shall cause
to be issued in the name of and delivered to the Holder a certificate or
certificates representing the Shares of the Common Stock so purchased. The
Corporation covenants and agrees that all of the Shares of the Common Stock
which may be issued and delivered upon the due exercise of this Option by the
Holder shall, upon such issuance and delivery, be fully paid and nonassessable.
2. OPTION PRICE. The Option Price at which the Shares of the Common
Stock shall be purchased upon the exercise of this Option shall be $0.75 per
share.
3. EXPIRATION OF OPTION ON CERTAIN ADDITIONAL EVENTS. Anything
contained in this Option to the contrary notwithstanding, this Option shall
expire and be and become null and void unless, in the event of any consolidation
of the Corporation with, or merger of the Corporation into, any other
corporation (other than a merger with a wholly owned subsidiary or in which the
Corporation is the surviving corporation); any transfer of all or substantially
all of the assets of the Corporation; or the dissolution, liquidation or
winding-up of the Corporation, this Option shall have been duly exercised, as
hereinabove provided, prior to the date which is the record date for determining
the holders of Common Stock entitled to vote upon such consolidation, merger,
transfer, dissolution, liquidation or winding-up. The Corporation shall give to
the Holder at least ninety (90) days' prior notice of the date which shall be
the record date for determining the holders of Common Stock entitled to vote
upon such consolidation, merger, transfer, dissolution, liquidation or
winding-up.
4. ANTI-DILUTION ADJUSTMENTS.
(a) Stock Dividend. If the Corporation shall at any time declare a
dividend payable in shares of Common Stock, then the Holder, upon exercise of
this Option after the record date for the determination of holders of Common
Stock entitled to receive such dividend, shall be entitled to receive upon
exercise of this Option, in addition to the number of shares of Common Stock as
to which this Option is exercised, such additional shares of Common Stock as
such Holder would have received had this Option been exercised immediately prior
to such record date and the Exercise Price will be proportionately adjusted.
(b) Recapitalization or Reclassification.
(i) Stock Split. If the Corporation shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a larger number of shares (a "Stock Split"), then upon the
effective date thereof, the number of shares of Common Stock which Holder shall
be entitled to purchase upon exercise of this Option shall be increased in
direct proportion to the increase in the number of shares of Common Stock by
reason of such recapitalization, reclassification or similar transaction, and
the Exercise Price shall be proportionally decreased.
(ii) Reverse Stock Split. If the Corporation shall at any time effect a
recapitalization, reclassification or other similar transaction of such
character that the shares of Common Stock shall be changed into or become
exchangeable for a smaller number of shares (a "Reverse Stock Split"), then upon
the effective date thereof, the number of shares of Common Stock which Holder
shall be entitled to purchase upon the exercise of this Option shall be
proportionally decreased and the Exercise Price shall be proportionally
increased. The Corporation shall give the Holder the same notice it provides to
holders of Common Stock of any transaction described in this Section 4(b).
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(c) Distributions. If the Corporation shall at any time distribute for
no consideration to holders of Common Stock cash, evidences of indebtedness or
other securities or assets (other than cash dividends or distributions payable
out of earned surplus or net profits for the current or preceding years) then,
in any such case, Holder shall be entitled to receive, upon exercise of this
Option, with respect to each share of Common Stock issuable upon such exercise,
the amount of cash or evidences of indebtedness or other securities or assets
which Holder would have been entitled to receive with respect to each such share
of Common Stock as a result of the happening of such event had this Option been
exercised immediately prior to the record date or other date fixing shareholders
to be affected by such event (the "Determination Date") or, in lieu thereof, if
the Board of Directors of the Corporation should so determine at the time of
such distribution, a reduced Exercise Price determined by multiplying the
Exercise Price on the Determination Date by a fraction, the numerator of which
is the result of such Exercise Price reduced by the value of such distribution
applicable to one share of Common Stock (such value to be determined by the
Board of Directors of the Corporation in its discretion) and the denominator of
which is such Exercise Price.
(d) Notice of Consolidation or Merger and Share Exchange. The
Corporation shall not, at any time after the date hereof, effect a merger,
consolidation, exchange of shares, recapitalization, reorganization, or other
similar event, as a result of which shares of Common Stock shall be changed into
the same or a different number of shares of the same or another class or classes
of stock or securities or other assets of the Corporation or another entity or
there is a sale of all or substantially all the Corporation's assets (a
"Corporate Change"), unless the resulting successor or acquiring entity (the
"Resulting Entity") assumes by written instrument the Corporation's obligations
under this Option during the term of the resultant options, and agrees in such
written instrument that this Option shall be exercisable into such class and
type of securities or other assets of the Resulting Entity as Holder would have
received had Holder exercised this Option immediately prior to such Corporate
Change, and the exercise price of this Option shall be proportionately increased
(if this Option shall be changed into or become exchangeable for an option to
purchase a smaller number of shares of Common Stock of the Resulting Entity) or
shall be proportionately decreased (if this Option shall be changed or become
exchangeable for an option to purchase a larger number of shares of Common Stock
of the Resulting Entity); provided, however, that the Corporation may not affect
any Corporate Change unless it first shall have given thirty (30) days notice to
Holder hereof of any Corporate Change.
(e) Exercise Price Adjusted. As used in this Option, the term "Exercise
Price" shall mean the purchase price per share specified in Section 2 of this
Option, until the occurrence of an event stated in subsection (a), (b), (c) or
(d) of this Section 4, and thereafter shall mean said price as adjusted from
time to time in accordance with the provisions of this Option. No such
adjustment under this Section 4 shall be made unless such adjustment would
change the Exercise Price at the time by the $0.01 or more; provided however,
that all adjustments not so made shall be deferred and made when the aggregate
thereof would change the Exercise Price at the time by $0.01 or more.
(f) Adjustments: Additional Shares, Securities or Assets. In the event
that at any time, as a result of an adjustment made pursuant to this Section 4,
Holder shall, upon exercise of this Option, become entitled to receive shares
and/or other securities or assets (other than Common Stock) then, wherever
appropriate, all references herein to shares of Common Stock shall be deemed to
refer to and include such shares and/or other securities or assets; and
thereafter the number of such shares and/or other securities or assets shall be
subject to adjustment from time to time in a manner and upon terms as nearly
equivalent as practicable to the provisions of this Section 4.
5. NONTRANSFERABILITY. This Option shall not be assigned, pledged,
hypothecated, sold or otherwise transferred or encumbered by the Holder.
Notwithstanding the foregoing, this Option
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shall be exercisable upon the death or permanent disability of the Holder by
Holder's heirs, personal representatives, guardians, beneficiaries, devisees, or
otherwise.
6. NOTICES. Any notice or other communication to the Corporation or to
the Holder of this Option shall be in writing and any such notice or
communication shall be deemed duly given or made if personally delivered or if
mailed, by registered or certified mail, postage prepaid, and if to the
Corporation: to the Corporation's office at 90 Park Avenue, Suite 1700, New
York, NY 10016 and if to such Holder: to David Marks, 3 & 4 Bentick Street,
London, UK W1M 5RN or at such other address as the Corporation or the Holder may
designate by notice to the other.
7. GOVERNING LAW. This Option shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
8. SUCCESSORS AND ASSIGNS. All of the provisions of this Option shall
be binding upon the Corporation and its successors and assigns and the Holder,
his heirs, personal representatives and guardians.
IN WITNESS WHEREOF, FONECASH, INC. has caused this Option to be signed
in its corporate name under its corporate seal by its President and its
corporate seal to be hereunto affixed and its execution hereof to be attested by
its Secretary, as of this 31st day of August, 2000.
ATTEST: FONECASH, INC.
/s/ Judy Park By: /s/ Daniel E. Charboneau
Daniel E. Charboneau, President
ACCEPTED:
/s/ David Marks
David Marks, Holder
