STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made and entered into as of
the 31st day of October, 2000, ---- -------- by and between Aarica Holdings,
Inc., a Texas corporation ("Seller") and Robert E. Schmidt, Jr., or his assigns
("Buyer").
W I T N E S S E T H:
WHEREAS, Seller desires to grant to Buyer an option to purchase certain
shares of the common capital stock of Seller; and
WHEREAS, Buyer desires to receive from Seller, an option to purchase
certain shares of the common capital stock of Seller;
NOW, THEREFORE, in consideration of the premises, which shall be deemed
an integral part of this Agreement and not as mere recitals hereto, and in
consideration of Ten Dollars ($10.00) in hand paid to Seller, the parties hereto
agree as follows:
1. Grant of Option. C Seller, in consideration of the sum of Ten Dollars
($10.00) (hereinafter referred to as "Option Money") paid to Seller, hereby
grants an option to Buyer for a period of five (5) years, subject to the
provisions of Paragraph 8 herein, to purchase from Seller (the "Option") Two
Hundred Seventy-Five Thousand (275,000) shares of the $.01 par value common
capital stock of Seller (the "Shares") on or after December 31, 2000 until
December 31, 2005 ("Option Period").
2. Exercise of Option.-- This Option may be exercised in whole or in part, with
a 25,000 share minimum purchase, by Buyer, by giving notice to Seller in the
form attached hereto as Exhibit "A", specifying the Buyer's desire to exercise
the Option in writing, by certified mail, return receipt requested, addressed to
Seller at the address set forth in Paragraph 11 hereof.
3. Terms and Conditions. -- If the said Option is exercised in whole or in part
during the life of the Option, Seller hereby agrees to sell to Buyer and Buyer
hereby agrees to buy from Seller the Shares as specified in the notice of
exercise, upon the terms and conditions hereinafter provided.
4. Purchase Price, Payment and Closing. --
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(1) The purchase price for the Shares shall be Two Dollars ($2.00) per
share ("Purchase Price").
(2) Within five (5) days of receipt of the notice of exercise of the Option by
Seller, the sale of the Shares shall close and the Purchase Price shall be paid
in cash to Seller by wire transfer or check.
(1)
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5. Stock Certificates. --
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(1) At the closing of the sale after the exercise of the Option, Seller shall
deliver to Buyer without charge, including without limitation, any tax which may
be payable in respect of the issuance thereof, stock certificate(s) of Seller
evidencing the ownership by Buyer of the Shares purchased by Buyer pursuant to
the exercise of the Option. Such certificates shall be issued in the name of
Buyer or in such names as may be directed by Buyer. Seller shall not be required
to issue certificates representing fractions of shares, it being the intent of
the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of common stock.
(2) Upon exercise of the Option, in part or in whole, certificates representing
the Shares shall bear a legend substantially similar to the following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except (i) pursuant to
an effective registration statement under the Act, (ii) to the
extent applicable, pursuant to Rule 144 under the Act (or any
similar rule under such Act relating to the disposition of
securities), or (iii) upon the delivery by the holder to
Seller of an opinion of counsel stating that an exemption from
registration under such Act is available."
6. Adjustments of Purchase Price and Number of the Shares. --
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(1) In the event Seller shall at any time subdivide or combine (including stock
splits and reverse stock splits) its outstanding shares of common capital stock,
the Purchase Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination. Further, the number of the
Shares shall be adjusted accordingly and this Agreement shall be amended to
reflect the adjusted Purchase Price and number of the Shares available under the
Option.
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(2) In case of any reclassification or change of the outstanding shares of
common stock of Seller (other than a change in par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
or in the case of any consolidation of Seller with, or merger of Seller into,
another corporation (other than a consolidation or merger in which Seller is the
surviving corporation and which does not result in any reclassification or
change of the outstanding shares of common stock of Seller, except a change as a
result of a subdivision or combination of such shares or a change in par value,
as aforesaid), or in the case of a sale or conveyance to another corporation of
the property of Seller as an entirety, Buyer shall thereafter have the right to
purchase the kind and number of shares of stock and other securities and
property receivable upon such reclassification, change, consolidation, merger,
sale or conveyance as if Buyer were the owner of the Shares immediately prior to
any such events at a price equal to the product of (x) the number of Shares then
remaining issuable upon exercise of the Option and (y) the Purchase Price in
effect immediately prior to the record date for such reclassification, change,
consolidation, merger, sale or conveyance as if Buyer had exercised the Option.
7. Covenants and Warranties of Seller. -- Seller covenants and warrants that:
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(1) The total authorized capital stock of Seller as of the date hereof is Twenty
Million (20,000,000) shares of $.01 par value common capital stock of which
2,825,000 are issued and outstanding.
(2) Until the termination of the Option, Seller shall be a Texas corporation
validly existing and in good standing under the laws of the State of Texas.
(3) The Shares will be duly and validly issued, free and clear of liens and
encumbrances, fully paid and nonassessable, and not subject to the preemptive
rights of any stockholder, when issued.
(4) Seller shall at all times reserve and keep available out of its authorized
shares of common stock, solely for the purpose of issuance upon the exercise of
the Option, such number of shares as shall be issuable upon the exercise of the
Option in whole.
8. Call Option. -- Buyer hereby grants Seller, commencing six (6) months after
the date hereof, the right to "call" the Option if Seller's stock shall close at
a price of $15.00 or more per share for ten (10) consecutive trading days.
Seller may "call" the Option by giving written notice to Buyer specifying
Seller's desire to call the Option, by certified mail, return receipt requested,
addressed to Buyer at the address set forth in Paragraph 11 hereof. Buyer shall
have thirty (30) days from the date of receipt of the notice from Seller of its
"call" to notify Seller of his desire to exercise the Option, in whole or in
part, in accordance with the provisions of this Agreement. In the event Buyer
fails to notify Seller of his intent to exercise the Option during said thirty
(30) day period, Seller may cancel the Option at any time thereafter upon ten
(10) days prior written notice to Buyer, which notice shall specify the date
upon which the Option shall be canceled. Buyer shall have the right until such
cancellation date to exercise the Option.
9. Notices to Buyer. Nothing contained in this Agreement shall be construed as
conferring upon Buyer the right to vote or to consent or to receive notice as a
stockholder in respect of any meetings of stockholders for the election of
directors or any other matter, or as having any rights whatsoever as a
stockholder prior to the exercise of the Option either in whole or in part. If,
however, at any time prior to the expiration of the Option and its exercise, any
of the following events shall occur:
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(a) Seller shall take a record of the holders of its shares of
common stock for the purpose of entitling them to receive a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings, as indicated by the
accounting treatment of such dividend or distribution on the books of Seller; or
(b) Seller shall offer to all the holders of its common stock
any additional shares of capital stock of Seller or securities convertible into
or exchangeable for shares of capital stock of Seller, or any option, right or
warrant to subscribe therefor; or
(c) a dissolution, liquidation or winding up of Seller (other
than in connection with a consolidation or merger) or a sale of all or
substantially all of its property, assets and business as an entirety shall be
proposed;
then, in any one or more of said events, Seller shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, options or warrants, or entitled
to vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to give such notice or any defect therein shall not
affect the validity of any action taken in connection with the declaration or
payment of any such dividend or distribution, or the issuance of any convertible
or exchangeable securities or subscription rights, options or warrants, or any
proposed dissolution, liquidation, winding up or sale.
10. Termination. -- This Agreement shall terminate at the end of the Option
Period or pursuant to the terms of Paragraph 8 above.
11. Notices. C If any notices, consents, approvals, or waivers are to be given
by any party to this Agreement by any other party or parties to this Agreement,
such notices, consents, approvals, or waivers shall be properly addressed to the
party to whom such notice is directed, and sent by certified mail, return
receipt requested. Notices shall be addressed to the parties as follows:
If to Buyer: Robert E. Schmidt, Jr.
c/o Boulder Venture
4340 W. Hillsborough Avenue
Tampa, FL 33614
If to Seller: Aarica Holdings, Inc.
c/o James R. Schnorf
195 Wekiva Springs Road
Suite 200
Longwood, Florida 32779
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12. Waiver of Breach. -- The waiver by any party of a breach of any covenant,
agreement, or provision contained in this Agreement by any party shall not be
construed as a waiver of the covenant, agreement, or provision itself or any
subsequent breach of that covenant, agreement, or provision or any other
covenant, agreement, or provision contained in this Agreement.
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13. Rules of Construction. --
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(a) Entire Agreement. -- This Agreement, including all
exhibits and schedules referenced herein and attached hereto, constitutes the
entire agreement between the parties hereto pertaining to the subject matters
hereof, and supersedes all negotiations, preliminary agreements, and all prior
and contemporaneous discussions and understandings of the parties in connection
with the subject matters hereof. Except as otherwise provided herein, no
covenant, representation, or condition not expressed in this Agreement, or in an
amendment hereto made and executed in accordance with the provisions of
subparagraph (b) of this paragraph, shall be binding upon the parties hereto or
shall affect or be effective to interpret, change or restrict the provisions of
this Agreement.
(b) Amendments. -- No change, modification, or termination of
any of the terms, provisions, or conditions of this Agreement shall be effective
unless made in writing and signed or initialed by all parties hereto, their
successors or assigns.
(c) Governing Law. -- This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Venue and exclusive
jurisdiction for any action hereunder shall be taken in a court of competent
jurisdiction located in Orange County, Florida.
(d) Separability. -- If any paragraph, subparagraph, or other
provision of this Agreement, or the application of such paragraph, subparagraph,
or provision, is held invalid, then the remainder of this Agreement, and the
application of such paragraph, subparagraph, or provision to persons or
circumstances other than those with respect to which it is held invalid, shall
not be affected thereby.
(e) Headings and Captions. -- The titles or captions of
paragraphs and subparagraphs contained in this Agreement are provided for
convenience of reference only, and shall not be considered a part hereof for
purposes of interpreting or applying this Agreement, and, therefore, such titles
or captions do not define, limit, extend, explain, or describe the scope or
extent of this Agreement or any of its terms, provisions, representations,
warranties, conditions, etc., in any manner or way whatsoever.
(f) Gender and Number. -- All pronouns and variations thereof
shall be deemed to refer to the masculine, feminine, or neuter, and to the
singular or plural, as the identity of the person or entity or persons or
entities may require.
(g) Binding Effect and Assignability. -- This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their successors and
assigns. This Agreement shall be assignable by Buyer. (1)
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(h) Continuance of Agreement. -- The rights, responsibilities,
duties, representations, and warranties of the parties hereto, and the covenants
and agreements herein contained, shall survive any closing and the execution
hereof, and shall continue to bind the parties hereto, and shall continue in
full force and effect until each and every obligation of the parties hereto
pursuant to this Agreement and any document or agreement incorporated herein by
reference shall have been fully performed.
(i) Counterparts. -- This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument, ad in making proof
hereof it shall not be necessary to produce or account for more than one such
counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
WITNESSES: BUYER:
/s/ Robert E. Schmidt, Jr.
Robert E. Schmidt, Jr.
ATTEST: SELLER:
Aarica Holdings, Inc.
/s/ James R. Schnorf By:/s/ Carol Kolozs
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James R. Schnorf, Asst. Secretary Carol Kolozs, President
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EXHIBIT "A"
[FORM OF NOTICE OF EXERCISE OF OPTION]
The undersigned hereby irrevocably elects to exercise the right to purchase
_________ (_______) Shares and herewith tenders in payment for THE Shares cash,
a check payable to the order of Aarica Holdings, Inc. or by wire transfer, in
the amount of $__________________, in accordance with the terms hereof. The
undersigned requests that a certificate for such Shares be registered in the
name of ___________ , whose address is__________________________________________
_______________________________________________, and that such Certificate be
delivered to ___________________________________, whose address is
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Dated: Signature:
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(Signature of Buyer)
Signature:
(Signature of Holder)
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(Insert Name and Social Security or
Other Identifying Number of Holder)
