Exhibit 4.4
THE SECURITIES EVIDENCED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT
WITH A VIEW TO THE DISTRIBUTION THEREOF, AND, EXCEPT AS STATED IN AN AGREEMENT
BETWEEN THE HOLDER OF THIS INSTRUMENT AND JOINUSONLINE.COM, INC., SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES OR UNITED BUYERS
ADVANTAGE, INC. RECEIVES AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR SUCH
CORPORATION) STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
STOCK PURCHASE OPTION
To Purchase 74.25 Shares of Common Stock of
JOINUSONLINE.COM, INC.
THIS CERTIFIES that, for value received, Boru Enterprises. Inc. (the
"Holder"), is entitled, upon the terms and subject to the conditions hereinafter
set forth, at any time on or after June7, 2000 (the "Initial Exercise Date") and
on or prior to the close of business on June 7, 2005 (the "Termination Date")
but not thereafter, to subscribe for and purchase from JoinUsOnLine.com, Inc., a
corporation incorporated in Delaware (the "Company"), up to 74.25 shares (the
"Option Shares") of Common Stock, $.001 par value, of the Company (the "Common
Stock"). The purchase price of one share of Common Stock (the "Exercise Price")
under this Option shall be $6,666.66. The Exercise Price and the number of
shares for which the Option is exercisable shall be subject to adjustment as
provided herein.
1. Title to Option. Prior to the Termination Date, this Option and
all rights hereunder shall not be transferable, in whole or in part.
2. Authorization of Shares. The Company covenants that all shares of
Common Stock which may be issued upon the exercise of rights represented by this
Option will, upon exercise of the rights represented by this Option, be duly
authorized, validly issued, fully paid and non-assessable and free from all
taxes, liens and charges in respect of the issue thereof (other than taxes in
respect of any transfer occurring contemporaneously with such issue).
3. Exercise of Option. (a) Exercise for Cash. Except as provided in
Section 4 herein, exercise of the purchase rights represented by this Option may
be made at any time or times on or after the Initial Exercise Date, and before
the close of business on the Termination Date by the surrender of this Option
and the Notice of Exercise Form annexed hereto duly executed, 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 registered holder hereof at the address of such
holder appearing on the books of the Company) and upon payment of the Exercise
Price of the shares thereby purchased by wire transfer or cashier's check drawn
on a United States bank, the holder
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of this Option shall be entitled to receive a certificate for the number of
shares of Common Stock so purchased. Certificates for shares purchased hereunder
shall be delivered to the holder hereof within three (3) business days after the
date on which this Option shall have been exercised as aforesaid. This Option
shall be deemed to have been exercised and such certificate or certificates
shall be deemed to have been issued, and Holder or any other person so
designated to be named therein shall be deemed to have become a holder of record
of such shares for all purposes, as of the date the Option has been exercised by
payment to the Company of the Exercise Price and all taxes required to be paid
by Holder, if any, pursuant to Section 5 prior to the issuance of such shares,
have been paid. If this Option shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or certificates representing
Option Shares, deliver to Holder a new Option evidencing the rights of Holder to
purchase the unpurchased shares of Common Stock called for by this Option, which
new Option shall in all other respects be identical with this Option.
(b) Cashless Exercise. If, from and after one year after the
Initial Exercise Date, (i) the Company's Common Stock shall have been registered
pursuant to Section 12(b) or (g) of the Securities and Exchange Act of 1934, as
amended; and (ii) the Holder's right to sell the Option Shares shall not then be
subject to any restrictions or limitations imposed by any lock-up or similar
agreement which the Holder shall have executed, then the Holder shall also have
the right to a "cashless exercise" in which the Holder shall be entitled to
receive a certificate for the number of shares equal to the quotient obtained by
dividing [(A-B) (X)] by (A), where:
(A) = the closing price (if so reported, or else the closing bid price) per
share of Common Stock on the business day preceding the date of such election;
(B) = the Exercise Price of the Option; and
(X) = the number of shares issuable upon exercise of the Option in accordance
with the terms of this Option.
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this Option.
As to any fraction of a share which Holder would otherwise be entitled to
purchase upon such exercise, the Company shall pay a cash adjustment in respect
of such final fraction in an amount equal to the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for shares
of Common Stock upon the exercise of this Option shall be made without charge to
the holder hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the holder of this Option or in such name or names as may be directed by the
holder of this Option; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the name of the
holder of this Option, this Option when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the holder
hereof; and the Company may require, as a condition thereto, the payment of a
sum sufficient to reimburse it for any transfer tax incidental thereto.
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6. Closing of Books. The Company will not close its shareholder
books or records in any manner which prevents the timely exercise of this
Option.
7. Transfer, Division and Combination. (a) Subject to compliance
with any applicable securities laws, transfer of this Option and all rights
hereunder, in whole or in part, shall be registered on the books of the Company
to be maintained for such purpose, upon surrender of this Option at the
principal office of the Company, together with a written assignment of this
Option substantially in the form attached hereto duly executed by Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment,
the Company shall execute and deliver a new Option or Options in the name of the
assignee or assignees and in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a new Option
evidencing the portion of this Option not so assigned, and this Option shall
promptly be cancelled. A Option, if properly assigned, may be exercised by a new
holder for the purchase of shares of Common Stock without having a new Option
issued. The Company acknowledges that this Option may be divided among
affiliates and employees of Holder.
(b) This Option may be divided or combined with other Options
upon presentation hereof at the aforesaid office of the Company, together with a
written notice specifying the names and denominations in which new Options are
to be issued, signed by Holder or its agent or attorney. Subject to compliance
with Section 7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Option or Options in
exchange for the Option or Options to be divided or combined in accordance with
such notice.
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Option or Options under this Section
7.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the Options.
8. No Rights as Stockholder until Exercise. This Option does not
entitle the holder hereof to any voting rights or other rights as a shareholder
of the Company prior to the exercise hereof. Upon the surrender of this Option
and the payment of the aggregate Exercise Price, the Option Shares so purchased
shall be and be deemed to be issued to such holder as the record owner of such
shares as of the close of business on the later of the date of such surrender or
payment.
9. Loss, Theft, Destruction or Mutilation of Option. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Option certificate
or any stock certificate relating to the Option Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it
(which shall not include the posting of any bond), and upon surrender and
cancellation of such Option or stock certificate, if mutilated, the Company will
make and deliver a new Option or stock certificate of like tenor and dated as of
such cancellation, in lieu of such Option or stock certificate.
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10. Saturdays, Sundays, Holidays, etc. If the last or appointed day
for the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or legal holiday.
11. Adjustments of Exercise Price and Number of Option Shares. (a)
Stock Splits, etc. The number and kind of securities purchasable upon the
exercise of this Option and the Exercise Price shall be subject to adjustment
from time to time upon the happening of any of the following. In case the
Company shall (i) pay a dividend in shares of Common Stock or make a
distribution in shares of Common Stock to holders of its outstanding Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares of Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock or (iv) issue any shares
of its capital stock in a reclassification of the Common Stock, then the number
of Option Shares purchasable upon exercise of this Option immediately prior
thereto shall be adjusted so that the holder of this Option shall be entitled to
receive the kind and number of Option Shares or other securities of the Company
which he would have owned or have been entitled to receive had such Option been
exercised in advance thereof. Upon each such adjustment of the kind and number
of Option Shares or other securities of the Company which are purchasable
hereunder, the holder of this Option shall thereafter be entitled to purchase
the number of Option Shares or other securities resulting from such adjustment
at an Exercise Price per Option Share or other security obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by the number
of Option Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the number of Option Shares or other securities of
the Company resulting from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
(b) Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including options or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then Holder shall have the right thereafter to receive, upon
exercise of this Option, the number of shares of common stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a holder of
the number of shares of Common Stock for which this Option is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Option to be performed and observed by the Company and all the
obligations and liabilities
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hereunder, subject to such modifications as may be deemed appropriate (as
determined in good faith by resolution of the Board of Directors of the Company)
in order to provide for adjustments of shares of Common Stock for which this
Option is exercisable which shall be as nearly equivalent as practicable to the
adjustments provided for in this Section 11. For purposes of this Section 11,
"common stock of the successor or acquiring corporation" shall include stock of
such corporation of any class which is not preferred as to dividends or assets
over any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock
or other securities which are convertible into or exchangeable for any such
stock, either immediately or upon the arrival of a specified date or the
happening of a specified event and any options or other rights to subscribe for
or purchase any such stock. The foregoing provisions of this Section 11 shall
similarly apply to successive reorganizations, reclassifications, mergers,
consolidations or disposition of assets.
12. Voluntary Adjustment by the Company. The Company may at any time
during the term of this Option, reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
13. Notice of Adjustment. Whenever the number of Option Shares or
number or kind of securities or other property purchasable upon the exercise of
this Option or the Exercise Price is adjusted, as herein provided, the Company
shall promptly mail by registered or certified mail, return receipt requested,
to the holder of this Option notice of such adjustment or adjustments setting
forth the number of Option Shares (and other securities or property) purchasable
upon the exercise of this Option and the Exercise Price of such Option Shares
(and other securities or property) after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such notice, in the absence of
manifest error, shall be conclusive evidence of the correctness of such
adjustment.
14. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the Company or
any consolidation or merger of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets or business of the
Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 30 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and
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(ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, at least 30 days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause also shall specify
(i) the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common Stock
shall be entitled to any such dividend, distribution or right, and the amount
and character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 16(d).
15. Authorized Shares. The Company covenants that during the period
the Option is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the
Option Shares upon the exercise of any purchase rights under this Option. The
Company further covenants 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 Option
Shares upon the exercise of the purchase rights under this Option. The Company
will take all such reasonable action as may be necessary to assure that such
Option Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the principal market
upon which the Common Stock may be listed.
The Company shall not by any action, including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Option, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Option above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, (b) take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and non-assessable shares
of Common Stock upon the exercise of this Option, and (c) use its best efforts
to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof as may be necessary to enable the
Company to perform its obligations under this Option.
Upon the request of Holder, the Company will at any time
during the period this Option is outstanding acknowledge in writing, in form
reasonably satisfactory to Holder, the continuing validity of this Option and
the obligations of the Company hereunder.
Before taking any action which would cause an adjustment
reducing the current Exercise Price below the then par value, if any, of the
shares of Common Stock issuable upon exercise of the Options, the Company shall
take any corporate action which may be
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necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Exercise Price.
Before taking any action which would result in an adjustment
in the number of shares of Common Stock for which this Option is exercisable or
in the Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
16. Miscellaneous.
(a) Jurisdiction. This Option shall be binding upon any
successors or assigns of the Company. This Option shall constitute a contract
under the laws of Delaware without regard to its conflict of law, principles or
rules.
(b) Restrictions. The holder hereof acknowledges that the
Option Shares acquired upon the exercise of this Option, if not registered, will
have restrictions upon resale imposed by state and federal securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice Holder's rights, powers or
remedies, notwithstanding all rights hereunder terminate on the Termination
Date. If the Company fails to comply with any provision of this Option, the
Company shall pay to Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in collecting any
amounts due pursuant hereto or in otherwise enforcing any of its rights, powers
or remedies hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof by the Company shall be
delivered by fax or by registered mail to the publicly listed headquarters
address of the Company, attention Chief Financial Officer, or to Holder at 72
S.E. 6th Avenue, Delray Beach, Florida 33483.
(e) Limitation of Liability. No provision hereof, in the
absence of affirmative action by Holder to purchase shares of Common Stock, and
no enumeration herein of the rights or privileges of Holder hereof, shall give
rise to any liability of Holder for the purchase price of any Common Stock or as
a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Option. The Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Option and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(g) Successors and Assigns. Subject to applicable securities
laws, this Option and the rights and obligations evidenced hereby shall inure to
the benefit of and be
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binding upon the successors of the Company and the successors and permitted
assigns of Holder. The provisions of this Option are intended to be for the
benefit of all Holders from time to time of this Option and shall be enforceable
by any such Holder or holder of Option Shares.
(h) Indemnification. The Company agrees to indemnify and hold
harmless Holder from and against any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, attorneys' fees, expenses
and disbursements of any kind which may be imposed upon, incurred by or asserted
against Holder in any manner relating to or arising out of any failure by the
Company to perform or observe in any material respect any of its covenants,
agreements, undertakings or obligations set forth in this Option; provided,
however, that the Company will not be liable hereunder to the extent that any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, attorneys' fees, expenses or disbursements are found in a final
non-appealable judgment by a court to have resulted from Holder's negligence,
bad faith or willful misconduct in its capacity as a stockholder or optionholder
of the Company.
(i) Amendment. This Option may be modified or amended or the
provisions hereof waived with the written consent of the Company and the Holder.
(j) Severability. Wherever 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 shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this Option.
(k) Headings. The headings used in this Option are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Option.
IN WITNESS WHEREOF, the Company has caused this Option to be
executed by its officer thereunto duly authorized.
Dated: June 7, 2000 JOINUSONLINE.COM, INC.
By: __________________________________________
William R. Becker, Chief Executive Officer
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NOTICE OF EXERCISE
To: JOINUSONLINE.COM, INC.
(1) The undersigned hereby elects to purchase ________ shares of
Common Stock, $.001 par value (the "Common Stock"), of JoinUsOnLine.com, Inc.
pursuant to the terms of the attached Option, and tenders herewith payment of
the exercise price in full, together with all applicable transfer taxes, if any.
(2)_____Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
___________________________________________
(Name)
___________________________________________
(Address)
___________________________________________
Dated: _________________________
____________________________________
Signature
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ASSIGNMENT FORM
(To assign the foregoing option, execute this
form and supply required information.
Do not use this form to exercise the option.)
FOR VALUE RECEIVED, the foregoing Option and all rights evidenced
thereby are hereby assigned to
______________________________________________________________ whose address is:
________________________________________________________________________________
________________________________________________________________________________
Dated: ______________, _______
Holder's Signature: _____________________________
Holder's Address: _____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Option, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Option.
