As filed with the Securities and Exchange Commission on March 8, 2000
Registration No. ______________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PRE-CELL SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-0751916
(State or Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
255 East Drive, Suite C
Melbourne, Florida 32904
(Address of principal executive offices)
OTHER EMPLOYEE BENEFIT PLANS
(Full title of the Plans)
THOMAS E. BIDDIX, CHIEF EXECUTIVE OFFICER
Pre-Cell Solutions, Inc.
255 East Drive, Suite C,
Melbourne, Florida 32904
(321) 308-2900
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
DAVID S. TOBIN, Esq.
TOBIN & REYES, P.A.
7251 West Palmetto Park Road
Boca Raton, Florida 33433
(561) 620-0656
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=========================================== ==================== ===================== ====================== ====================
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
=========================================== ==================== ===================== ====================== ====================
<S> <C> <C> <C> <C>
Common Stock issuable upon exercise of
options and other stock-based awards 7,000,000 .04 $280,000 $73.92
granted and outstanding under other 100,000 .44 $ 44,000 $11.62
employee benefit plans ("Benefit Plans")* 265,625 .08 $ 21,250 $ 5.61
- -------------------------------------------------------------------------------------- ---------------------- --------------------
TOTAL $345,250 $91.15
====================================================================================== ====================== ====================
</TABLE>
_____________________
*Represents the exercise prices payable for the _________ shares
issuable upon exercise of outstanding options granted pursuant to the Benefit
Plans in accordance with Rule 457(h) promulgated under the Securities Act.
---------------------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act, the Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
---------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Plan Annual Information *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act, and the Note to Part I of the Instructions to Form
S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended April 30,
1999 filed with the Commission pursuant to Section 13(a) of
the Securities Exchange Act of 1934 (the "Exchange Act");
(b) Quarterly Reports on Form 10-Q for the quarters ended July 31,
1999, October 31, 1999, and January 31, 2000, filed with the
Commission pursuant to Section 13(a) of the Exchange Act;
(c) Current Report on Form 8-K dated as of December 1, 1998, and
amendment thereto on Form 8K/A, dated January 21, 2000, filed
with the Commission pursuant to Section 13(a) of the Exchange
Act;
(d) All other reports filed by the Registrant since April 30,
1999, with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act; and
(e) The description of the Common Stock contained in the
Registrant's 8-A Registration Statement filed with the
Commission pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment(s) or report(s) filed for
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the respective date of filing of such documents. Any statement
contained in a document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
The Common Stock of the Registrant is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(A) The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that he is or was a director, officer, employee, fiduciary or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably believed to
be in the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its equivalent
shall not of itself create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in the best interests
of the corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe his conduct was unlawful.
II-1
<PAGE>
(B) The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending, or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee, fiduciary
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, fiduciary or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in the best interests of
the corporation; but no indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which such action or suit was
brought determines upon application that, despite the adjudication of liability,
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which such court deems
proper.
(C) To the extent that a director, officer, employee, fiduciary or
agent of a corporation has been successful on the merits in defense of any
action, suit or proceeding referred to in (A) and (B) of this Article X or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(D) Any indemnification under (A) or (B) of this Article X (unless
ordered by a court) and as distinguished from (C) of this Article shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee, fiduciary or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in (A) or (B) above. Such determination shall be made by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or, if such a quorum is not
obtainable or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or by the
shareholders.
(E) Expenses (including attorneys' fees) incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding as authorized in (C)
and (D) of this Article X upon receipt of an undertaking by or on behalf of the
director, officer, employee, fiduciary or agent to repay such amount unless it
is ultimately determined that he is entitled to be indemnified by the
corporation as authorized by this Article X.
(F) The indemnification provided by this Article X shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors, or
otherwise, and any procedure provided for by any of the foregoing, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who as ceased to be a
director, officer, employee, fiduciary or agent and shall inure to the benefit
of heirs, executors, and administrators of such a person.
(G) The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, fiduciary or agent of
the corporation or who is or was serving at the request of the corporation as a
director, officer, employee, fiduciary or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liability under provisions of this Article X.
(H) The corporation shall provide its directors, officers and employees
with all other indemnification rights permitted under Colorado law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 Stock Option Agreement for the purchase of 4,00,000
shares between the Registrant and Thomas E. Biddix
II-2
<PAGE>
4.2 Stock Option Agreement for the purchase of 3,00,000
shares between the Registrant and Timothy F.
McWilliams
4.3 Stock Option Agreement for the purchase of 100,000
shares between the Registrant and Tobin & Reyes, P.A.
4.4 Consulting Agreement for the purchase of 265,625
shares between the Registrant and Harry Christenson
5.1 Opinion of Tobin & Reyes, P.A.
23.1 Consent of Vestal & Wiler, P.A.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Melbourne, State of Florida, on this 8th day of
March, 2000.
PRE-CELL SOLUTIONS, INC.
By: /s/ Thomas E. Biddix
-------------------------------
Thomas E. Biddix, Chairman of the
Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas E. Biddix his true and lawful
attorney-in-fact and agents, each acting alone, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement,
including post-effective amendments, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, and hereby ratifies and confirms all
that said attorneys-in-fact and agents, each acting alone, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
/s/ Thomas E. Biddix Chairman of the Board of Directors, March 8, 2000
- --------------------- Chief Executive Officer, Treasurer
Thomas E. Biddix (and principal accounting officer)
/s/ Timothy F. McWilliams Chief Operating Officer and Director March 8, 2000
- -------------------------
Timothy F. McWilliams
/s/ Mark A. Krentzman Director March 8, 2000
- ----------------------
Mark A. Krentzman
II-5
STOCK OPTION AGREEMENT
AGREEMENT, made as of December 1, 1998, by and between PRE-CELL
SOLUTIONS, INC., a Colorado corporation (the "Company"), and Thomas E. Biddix
(the "Employee").
WHEREAS, on December 1, 1998 (the "Grant Date"), the Board of Directors
authorized the employment of the Employee pursuant to the terms of an Employment
Agreement dated as of December 1, 1998, and the grant to the Employee of an
option (the "Option") to purchase an aggregate of 4,000,000 shares of the
authorized but unissued common stock of the Company, $.01 par value ("Common
Stock"), conditioned upon the Employee's acceptance thereof upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Employee desires to acquire the Option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to the Employee the
right and option ("Option") to purchase all or any part of an aggregate of
4,000,000 shares of Common Stock ("Option Shares") on the terms and conditions
set forth herein. The Option represented hereby is a non-qualified stock option
not intended to qualify under any section of the Internal Revenue Code of 1986,
as amended, and is not granted under any plan. Certain terms used herein,
however, are defined under the Plan.
2. Exercise Price. The exercise price ("Exercise Price") of the Option
shall be $0.04 per share.
3. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, one year after the Grant Date. After the Option
vests, it shall remain exercisable for a period of five years from the date of
vesting, except as otherwise set forth in this Agreement (the "Exercise
Period").
4. Effect of Termination of Employment.
4.1 Termination Due to Death. If Employee's employment by the
Company terminates by reason of death, the Option shall become fully vested and
exercisable and may thereafter be exercised by the legal representative of the
estate or by the legatee of the Employee under the will of the Employee, for a
period of six months from the date of such death or until the expiration of the
Exercise Period, whichever period is shorter.
4.2 Termination Due to Disability. If Employee's employment by
the Company terminates by reason of Disability (as such term is defined under
the Plan), the Option shall become fully vested
<PAGE>
and exercisable and may thereafter be exercised by the Employee for a period of
six months from the date of such termination or until the expiration of the
Exercise Period, whichever period is shorter.
4.3 Termination by the Company Without Cause and/or Due to
Retirement. If Employee's employment is terminated by the Company without cause
or due to Normal Retirement (as such term is defined under the Plan), then (i)
the portion of the Option which has vested by the date of termination of
employment may be exercised by the Employee until the expiration of the Exercise
Period and (ii) the portion of the Option that will vest within one year of the
date of termination of employment shall become fully vested and may be exercised
by the Employee until the expiration of the Exercise Period. The portion of the
Option not exercisable within one year of the date of termination of employment
shall immediately expire.
4.4 Other Termination.
(a) If Employee's employment is terminated for any
reason other than (i) death, (ii) Disability, (iii) Normal Retirement, or (iv)
without cause by the Company, the Option shall expire on the date of termination
of employment.
(b) The Board of Directors, in the event the
Employee's employment is terminated for cause, may require the Employee to
return to the Company the economic benefit of any Option Shares purchased
hereunder by the Employee within the six month period prior to the date of
termination. In such event, the Employee hereby agrees to remit to the Company,
in cash, an amount equal to the difference between the Fair Market Value (as
such term is defined under the Plan) of the Option Shares on the date of
termination (or the sales price of such Shares if the Option Shares were sold
during such six month period) and the Exercise Price of such Shares.
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of the Employee for Federal income tax
purposes with respect to the Option, the Employee shall pay to the Company, or
make arrangements satisfactory to the Committee regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount ("Withholding Tax"). The obligations of the
Company under the Plan and pursuant to this Agreement shall be conditioned upon
such payment or arrangements with the Company and the Company shall, to the
extent permitted by law, have the right to deduct any Withholding Taxes from any
payment of any kind otherwise due to the Employee from the Company.
6. Adjustments. In the event of any change in the number of outstanding
shares of Common Stock of the Company occurring as the result of a stock split,
reverse stock split or stock dividend on the Common Stock, after the Grant Date,
the Company shall proportionately adjust the number of Option Shares and the
Exercise Price of the Option. Any right to acquire a fractional Option Share
resulting from adjustments will be rounded to the
2
<PAGE>
nearest whole Option Share. If the Company shall be the surviving corporation in
any merger, combination or consolidation, this Option shall pertain and apply to
the Option Shares to which the Employee is entitled hereunder, without
adjustment. In the event of a change in the par value of the shares of Common
Stock which are subject to this Option, this Option will be deemed to pertain to
the shares resulting from any such change. To the extent that the foregoing
adjustments relate to Common Stock, the adjustments will be made by the Board of
Directors whose determination will be final, binding and conclusive.
7. Method of Exercise.
7.1 Notice to the Company. The Option may be exercised in
whole or in part by written notice in the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice and of the Withholding Taxes, if any.
7.2 Delivery of Option Shares. The Company shall deliver a
certificate for the Option Shares to the Employee as soon as practicable after
payment therefor.
7.3 Payment of Purchase Price.
7.3.1 Cash Payment. The Employee shall make cash
payments by wire transfer, certified or bank check or personal check, in each
case payable to the order of the Company; the Company shall not be required to
deliver certificates for Option Shares until the Company has confirmed the
receipt of good and available funds in payment of the purchase price thereof.
7.3.2 Stock Payment. The Board of Directors, in its
sole discretion, may allow Employee to use Common Stock of the Company owned by
him to make any required payments by delivery of stock certificates in
negotiable form which are effective to transfer good and valid title thereto to
the Company, free of any liens or encumbrances. Shares of Common Stock used for
this purpose shall be valued at the Fair Market Value. Notwithstanding the
foregoing, the Company shall have the right to reject payment in the form of
Common Stock if in the opinion of counsel for the Company, (i) it could result
in an event of "recapture" under Section 16(b) of the Securities Exchange Act of
1934; (ii) such shares of Common Stock may not be sold or transferred to the
Company; or (iii) such transfer could create legal difficulties for the Company.
8. Nonassignability. The Option shall not be assignable or
transferable, except by will or by the laws of descent and distribution in the
event of the death of the Employee. No transfer of the Option by the Employee by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice thereof
and a copy of the will and/or such other evidence as
3
<PAGE>
the Company may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions of the
Option.
9. Accelerated Vesting and Exercisability. If (i) any person or entity
other than the Company and/or any officer, director or principal stockholder
(i.e., a holder [beneficially or of record] of more than ten percent of the
Company's voting stock) of the Company acquires securities of the Company (in
one or more transactions) having 25% or more of the total voting power of all
the Company's securities then outstanding and (ii) the Board of Directors of the
Company does not authorize or otherwise approve such acquisition, then the
vesting periods of the Option shall be accelerated and the Option shall
immediately and entirely vest. In such event, Employee shall have the immediate
right to purchase all the Option Shares, subject to the provisions of this
Agreement.
10. Company Representations. The Company hereby represents and warrants
to the Employee that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Employee in accordance with the terms and conditions
hereof, will be duly and validly issued and fully paid and
non-assessable.
11. Employee Representations. The Employee hereby represents and
warrants to the Company that:
(i) he is acquiring the Option and shall acquire the
Option Shares for his own account and not with a view towards the
distribution thereof;
(ii) he has received a copy of all reports and
documents required to be filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended, within the last 24 months and all reports issued by the
Company to its stockholders;
(iii) he understands that he must bear the economic
risk of the investment in the Option Shares, which cannot be sold by
him unless they are registered under the Securities Act of 1933 (the
"1933 Act") or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Option Shares for
sale under the 1933 Act;
4
<PAGE>
(iv) in his position with the Company, he has had
both the opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting on its
behalf concerning the terms and conditions of the offer made hereunder
and to obtain any additional information to the extent the Company
possesses or may possess such information or can acquire it without
unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vi) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
12. Restriction on Transfer of Option Shares.
12.1 Anything in this Agreement to the contrary
notwithstanding, Employee hereby agrees that he shall not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by him without
registration under the 1933 Act, or in the event that they are not so
registered, unless (i) an exemption from the 1933 Act registration requirements
is available thereunder, and (ii) the Employee has furnished the Company with
notice of such proposed transfer and the Company's legal counsel, in its
reasonable opinion, shall deem such proposed transfer to be so exempt.
12.2 Anything in this Agreement to the contrary
notwithstanding, Employee hereby agrees that he shall not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by him (i) prior to six
months after the Grant Date and (ii) except in accordance with Company's policy,
if any, regarding the sale and disposition of securities owned by employees
and/or directors of the Company.
5
<PAGE>
13. Miscellaneous.
13.1 Notices. All notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be either delivered
personally, transmitted by electronic means or sent by a nationally recognized
next-day courier to the parties at their respective addresses set forth herein,
or to such other address as either shall have specified by notice in writing to
the other. Notice shall be deemed duly given hereunder when delivered or
transmitted as provided herein.
13.2 Employee and Stockholder Rights. The Employee shall not
have any of the rights of a stockholder with respect to the Option Shares until
such shares have been issued after the due exercise of the Option. Nothing
contained in this Agreement shall be deemed to confer upon Employee any right to
continued employment with the Company or any subsidiary thereof, nor shall it
interfere in any way with the right of the Company to terminate Employee in
accordance with the provisions regarding such termination set forth in
Employee's written employment agreement with the Company, or if there exists no
such agreement, to terminate Employee at will.
13.3 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
13.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by writing executed by the Employee and the
Company.
13.5 Binding Effect; Successors. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
13.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (without regard to
choice of law provisions).
13.7 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above:
PRE-CELL SOLUTIONS, INC. Address: 255 East Drive, Suite C
Melbourne, Florida 33326
By: /s/ Timothy F. McWilliams
------------------------------
Chief Operating Officer
EMPLOYEE: /s/ Thomas E. Biddix Address: 688 Carriage Hill Road
-------------------------- Melbourne, Florida 32940
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
PRE-CELL SOLUTIONS, INC.
255 East Drive, Suite C
Melbourne, Florida 33326
Attention: Stock Option Committee of the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of December 1,
1998 with Pre-Cell solutions, Inc. (the "Company"), I hereby irrevocably elect
to exercise the right to purchase _________ shares of the Company's common
stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete applicable
box[es]):
" a [personal check] [certified check] [bank check] payable to
the order of "Global Telecommunication Solutions, Inc." in the
sum of $_________;
" confirmation of wire transfer in the amount of
$_____________; and/or
" with the consent of the Company, a certificate for
__________ shares of the Company's Common Stock, free and
clear of any encumbrances, duly endorsed, having a fair market
value of $_________.
I hereby represent and warrant to, and agree with, the Company that:
(i) I have acquired the Option and shall acquire the Option
Shares for my own account, for investment, and not with a view towards
the distribution thereof;
(ii) I have received a copy of all reports and documents
required to be filed by the Company with the Commission pursuant to the
Exchange Act within the last 24 months and all reports issued by the
Company to its stockholders;
(iii) I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me unless they
are registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and
disposition of securities owned by employees and/or directors of the
Company;
(v) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the officers and
directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
<PAGE>
(vi) I am aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Option
Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vii) if, at the time of issuance of the Option Shares, the
issuance of such shares have not been registered under the 1933 Act,
the certificates evidencing the Option Shares shall bear the following
legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ ------------------------------------
(Signature) (Address)
- ------------------------------ ------------------------------------
(Print Name)
- ------------------------------ ------------------------------------
(Social Security Number)
STOCK OPTION AGREEMENT
AGREEMENT, made as of December 1, 1998, by and between PRE-CELL
SOLUTIONS, INC., a Colorado corporation (the "Company"), and Timothy F.
McWilliams (the "Employee").
WHEREAS, on December 1, 1998 (the "Grant Date"), the Board of Directors
authorized the employment of the Employee pursuant to the terms of an Employment
Agreement dated as of December 1, 1998, and the grant to the Employee of an
option (the "Option") to purchase an aggregate of 3,000,000 shares of the
authorized but unissued common stock of the Company, $.01 par value ("Common
Stock"), conditioned upon the Employee's acceptance thereof upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Employee desires to acquire the Option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to the Employee the
right and option ("Option") to purchase all or any part of an aggregate of
3,000,000 shares of Common Stock ("Option Shares") on the terms and conditions
set forth herein. The Option represented hereby is a non-qualified stock option
not intended to qualify under any section of the Internal Revenue Code of 1986,
as amended, and is not granted under any plan. Certain terms used herein,
however, are defined under the Plan.
2. Exercise Price. The exercise price ("Exercise Price") of the Option
shall be $0.04 per share.
3. Exercisability. This Option is exercisable, subject to the terms and
conditions of this Agreement, one year after the Grant Date. After the Option
vests, it shall remain exercisable for a period of five years from the date of
vesting, except as otherwise set forth in this Agreement (the "Exercise
Period").
4. Effect of Termination of Employment.
4.1 Termination Due to Death. If Employee's employment by the
Company terminates by reason of death, the Option shall become fully vested and
exercisable and may thereafter be exercised by the legal representative of the
estate or by the legatee of the Employee under the will of the Employee, for a
period of six months from the date of such death or until the expiration of the
Exercise Period, whichever period is shorter.
4.2 Termination Due to Disability. If Employee's employment by
the Company terminates by reason of Disability (as such term is defined under
the Plan), the Option shall become fully vested
<PAGE>
and exercisable and may thereafter be exercised by the Employee for a period of
six months from the date of such termination or until the expiration of the
Exercise Period, whichever period is shorter.
4.3 Termination by the Company Without Cause and/or Due to
Retirement. If Employee's employment is terminated by the Company without cause
or due to Normal Retirement (as such term is defined under the Plan), then (i)
the portion of the Option which has vested by the date of termination of
employment may be exercised by the Employee until the expiration of the Exercise
Period and (ii) the portion of the Option that will vest within one year of the
date of termination of employment shall become fully vested and may be exercised
by the Employee until the expiration of the Exercise Period. The portion of the
Option not exercisable within one year of the date of termination of employment
shall immediately expire.
4.4 Other Termination.
(a) If Employee's employment is terminated for any
reason other than (i) death, (ii) Disability, (iii) Normal Retirement, or (iv)
without cause by the Company, the Option shall expire on the date of termination
of employment.
(b) The Board of Directors, in the event the
Employee's employment is terminated for cause, may require the Employee to
return to the Company the economic benefit of any Option Shares purchased
hereunder by the Employee within the six month period prior to the date of
termination. In such event, the Employee hereby agrees to remit to the Company,
in cash, an amount equal to the difference between the Fair Market Value (as
such term is defined under the Plan) of the Option Shares on the date of
termination (or the sales price of such Shares if the Option Shares were sold
during such six month period) and the Exercise Price of such Shares.
5. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of the Employee for Federal income tax
purposes with respect to the Option, the Employee shall pay to the Company, or
make arrangements satisfactory to the Committee regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount ("Withholding Tax"). The obligations of the
Company under the Plan and pursuant to this Agreement shall be conditioned upon
such payment or arrangements with the Company and the Company shall, to the
extent permitted by law, have the right to deduct any Withholding Taxes from any
payment of any kind otherwise due to the Employee from the Company.
6. Adjustments. In the event of any change in the number of outstanding
shares of Common Stock of the Company occurring as the result of a stock split,
reverse stock split or stock dividend on the Common Stock, after the Grant Date,
the Company shall proportionately adjust the number of Option Shares and the
Exercise Price of the Option. Any right to acquire a fractional Option Share
resulting from adjustments will be rounded to the
2
<PAGE>
nearest whole Option Share. If the Company shall be the surviving corporation in
any merger, combination or consolidation, this Option shall pertain and apply to
the Option Shares to which the Employee is entitled hereunder, without
adjustment. In the event of a change in the par value of the shares of Common
Stock which are subject to this Option, this Option will be deemed to pertain to
the shares resulting from any such change. To the extent that the foregoing
adjustments relate to Common Stock, the adjustments will be made by the Board of
Directors whose determination will be final, binding and conclusive.
7. Method of Exercise.
7.1 Notice to the Company. The Option may be exercised in
whole or in part by written notice in the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice and of the Withholding Taxes, if any.
7.2 Delivery of Option Shares. The Company shall deliver a
certificate for the Option Shares to the Employee as soon as practicable after
payment therefor.
7.3 Payment of Purchase Price.
7.3.1 Cash Payment. The Employee shall make cash
payments by wire transfer, certified or bank check or personal check, in each
case payable to the order of the Company; the Company shall not be required to
deliver certificates for Option Shares until the Company has confirmed the
receipt of good and available funds in payment of the purchase price thereof.
7.3.2 Stock Payment. The Board of Directors, in its
sole discretion, may allow Employee to use Common Stock of the Company owned by
him to make any required payments by delivery of stock certificates in
negotiable form which are effective to transfer good and valid title thereto to
the Company, free of any liens or encumbrances. Shares of Common Stock used for
this purpose shall be valued at the Fair Market Value. Notwithstanding the
foregoing, the Company shall have the right to reject payment in the form of
Common Stock if in the opinion of counsel for the Company, (i) it could result
in an event of "recapture" under Section 16(b) of the Securities Exchange Act of
1934; (ii) such shares of Common Stock may not be sold or transferred to the
Company; or (iii) such transfer could create legal difficulties for the Company.
8. Nonassignability. The Option shall not be assignable or
transferable, except by will or by the laws of descent and distribution in the
event of the death of the Employee. No transfer of the Option by the Employee by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice thereof
and a copy of the will and/or such other evidence as
3
<PAGE>
the Company may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions of the
Option.
9. Accelerated Vesting and Exercisability. If (i) any person or entity
other than the Company and/or any officer, director or principal stockholder
(i.e., a holder [beneficially or of record] of more than ten percent of the
Company's voting stock) of the Company acquires securities of the Company (in
one or more transactions) having 25% or more of the total voting power of all
the Company's securities then outstanding and (ii) the Board of Directors of the
Company does not authorize or otherwise approve such acquisition, then the
vesting periods of the Option shall be accelerated and the Option shall
immediately and entirely vest. In such event, Employee shall have the immediate
right to purchase all the Option Shares, subject to the provisions of this
Agreement.
10. Company Representations. The Company hereby represents and warrants
to the Employee that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Employee in accordance with the terms and conditions
hereof, will be duly and validly issued and fully paid and
non-assessable.
11. Employee Representations. The Employee hereby represents and
warrants to the Company that:
(i) he is acquiring the Option and shall acquire the
Option Shares for his own account and not with a view towards the
distribution thereof;
(ii) he has received a copy of all reports and
documents required to be filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended, within the last 24 months and all reports issued by the
Company to its stockholders;
(iii) he understands that he must bear the economic
risk of the investment in the Option Shares, which cannot be sold by
him unless they are registered under the Securities Act of 1933 (the
"1933 Act") or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Option Shares for
sale under the 1933 Act;
4
<PAGE>
(iv) in his position with the Company, he has had
both the opportunity to ask questions and receive answers from the
officers and directors of the Company and all persons acting on its
behalf concerning the terms and conditions of the offer made hereunder
and to obtain any additional information to the extent the Company
possesses or may possess such information or can acquire it without
unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to clause (ii) above;
(v) he is aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vi) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
12. Restriction on Transfer of Option Shares.
12.1 Anything in this Agreement to the contrary
notwithstanding, Employee hereby agrees that he shall not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by him without
registration under the 1933 Act, or in the event that they are not so
registered, unless (i) an exemption from the 1933 Act registration requirements
is available thereunder, and (ii) the Employee has furnished the Company with
notice of such proposed transfer and the Company's legal counsel, in its
reasonable opinion, shall deem such proposed transfer to be so exempt.
12.2 Anything in this Agreement to the contrary
notwithstanding, Employee hereby agrees that he shall not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by him (i) prior to six
months after the Grant Date and (ii) except in accordance with Company's policy,
if any, regarding the sale and disposition of securities owned by employees
and/or directors of the Company.
5
<PAGE>
13. Miscellaneous.
13.1 Notices. All notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be either delivered
personally, transmitted by electronic means or sent by a nationally recognized
next-day courier to the parties at their respective addresses set forth herein,
or to such other address as either shall have specified by notice in writing to
the other. Notice shall be deemed duly given hereunder when delivered or
transmitted as provided herein.
13.2 Employee and Stockholder Rights. The Employee shall not
have any of the rights of a stockholder with respect to the Option Shares until
such shares have been issued after the due exercise of the Option. Nothing
contained in this Agreement shall be deemed to confer upon Employee any right to
continued employment with the Company or any subsidiary thereof, nor shall it
interfere in any way with the right of the Company to terminate Employee in
accordance with the provisions regarding such termination set forth in
Employee's written employment agreement with the Company, or if there exists no
such agreement, to terminate Employee at will.
13.3 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
13.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by writing executed by the Employee and the
Company.
13.5 Binding Effect; Successors. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
13.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (without regard to
choice of law provisions).
13.7 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above:
PRE-CELL SOLUTIONS, INC. Address: 255 East Drive, Suite C
Melbourne, Florida 33326
By: /s/ Thomas E. Biddix
---------------------------
Chief Executive Officer
EMPLOYEE: Address: 7035 S. Tropical Trail
Merritt Island, Florida 32952
/s/ Timothy F. McWilliams
- ----------------------------
Timothy F. McWilliams
7
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
PRE-CELL SOLUTIONS, INC.
255 East Drive, Suite C
Melbourne, Florida 33326
Attention: Stock Option Committee of the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of December 1,
1998 with Pre-Cell solutions, Inc. (the "Company"), I hereby irrevocably elect
to exercise the right to purchase _________ shares of the Company's common
stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete applicable
box[es]):
" a [personal check] [certified check] [bank check] payable to
the order of "Global Telecommunication Solutions, Inc." in the
sum of $_________;
" confirmation of wire transfer in the amount of
$_____________; and/or
" with the consent of the Company, a certificate for
__________ shares of the Company's Common Stock, free and
clear of any encumbrances, duly endorsed, having a fair market
value of $---------.
I hereby represent and warrant to, and agree with, the Company that:
(i) I have acquired the Option and shall acquire the
Option Shares for my own account, for investment, and not with a view
towards the distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the "1933
Act") or an exemption therefrom is available thereunder and that the
Company is under no obligation to register the Option Shares for sale
under the 1933 Act;
(iv) I agree that I will not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by me hereby
except in accordance with Company's policy, if any, regarding the sale
and disposition of securities owned by employees and/or directors of
the Company;
(v) in my position with the Company, I have had both
the opportunity to ask questions and receive answers from the officers
and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
<PAGE>
(vi) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vii) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ ------------------------------------
(Signature) (Address)
- ------------------------------ ------------------------------------
(Print Name)
- ------------------------------ ------------------------------------
(Social Security Number)
STOCK OPTION AGREEMENT
AGREEMENT, made as of February 2, 2000, by and between PRE-CELL
SOLUTIONS, INC., a Colorado corporation (the "Company"), and TOBIN & REYES,
P.A., a Florida professional association ("T&R").
WHEREAS, on February 2, 2000 (the "Grant Date"), the Board of Directors
authorized the grant to T&R an option (the "Option") to purchase an aggregate of
100,000 shares of the authorized but unissued common stock of the Company, $.01
par value ("Common Stock"), conditioned upon T&R's acceptance thereof upon the
terms and conditions set forth in this Agreement; and
WHEREAS, the T&R desires to acquire the Option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to T&R the right
and option ("Option") to purchase all or any part of an aggregate of 100,000
shares of Common Stock ("Option Shares") on the terms and conditions set forth
herein. The Option represented hereby is a non-qualified stock option not
intended to qualify under any section of the Internal Revenue Code of 1986, as
amended, and is not granted under any plan.
2. Exercise Price. The exercise price ("Exercise Price") of the Option
shall be $0.44 per share.
3. Exercisability. This Option is immediately exercisable and shall
remain exercisable for a period of five years from the date of this Agreement
(the "Exercise Period").
4. Adjustments. In the event of any change in the number of outstanding
shares of Common Stock of the Company occurring as the result of a stock split,
reverse stock split or stock dividend on the Common Stock, after the Grant Date,
the Company shall proportionately adjust the number of Option Shares and the
Exercise Price of the Option. Any right to acquire a fractional Option Share
resulting from adjustments will be rounded to the nearest whole Option Share. If
the Company shall be the surviving corporation in any merger, combination or
consolidation, this Option shall pertain and apply to the Option Shares to which
T&R is entitled hereunder, without adjustment. In the event of a change in the
par value of the shares of Common Stock which are subject to this Option, this
Option will be deemed to pertain to the shares resulting from any such change.
To the extent that the foregoing adjustments relate to Common Stock, the
adjustments will be made by the Board of Directors whose determination will be
final, binding and conclusive.
<PAGE>
5. Method of Exercise.
5.1 Notice to the Company. The Option may be exercised in
whole or in part by written notice in the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice.
5.2 Delivery of Option Shares. The Company shall deliver a
certificate for the Option Shares to T&R as soon as practicable after payment
therefor.
5.3 Payment of Purchase Price.
5.3.1 Cash Payment. T&R shall make cash payments by
wire transfer, certified or bank check or company check, in each case payable to
the order of the Company; the Company shall not be required to deliver
certificates for Option Shares until the Company has confirmed the receipt of
good and available funds in payment of the purchase price thereof.
5.3.2 Stock Payment. The Board of Directors, in its
sole discretion, may allow T&R to use Common Stock of the Company owned by it to
make any required payments by delivery of stock certificates in negotiable form
which are effective to transfer good and valid title thereto to the Company,
free of any liens or encumbrances. Shares of Common Stock used for this purpose
shall be valued at the Fair Market Value. Notwithstanding the foregoing, the
Company shall have the right to reject payment in the form of Common Stock if in
the opinion of counsel for the Company, (i) it could result in an event of
"recapture" under Section 16(b) of the Securities Exchange Act of 1934; (ii)
such shares of Common Stock may not be sold or transferred to the Company; or
(iii) such transfer could create legal difficulties for the Company.
6. Nonassignability. The Option shall not be assignable or
transferable, except with the written consent of the Company.
7. Company Representations. The Company hereby represents and warrants
to T&R that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to T&R in accordance with the terms and conditions hereof,
will be duly and validly issued and fully paid and non-assessable.
2
<PAGE>
8. T&R Representations. T&R hereby represents and warrants to the
Company that:
(i) it is acquiring the Option and shall acquire the
Option Shares for its own account and not with a view towards the
distribution thereof;
(ii) its representatives have received a copy of all
reports and documents required to be filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, as amended, within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) it understands that he must bear the economic
risk of the investment in the Option Shares, which cannot be sold by
him unless they are registered under the Securities Act of 1933 (the
"1933 Act") or an exemption therefrom is available thereunder and that
the Company is under no obligation to register the Option Shares for
sale under the 1933 Act;
(iv) its representatives have had both the
opportunity to ask questions and receive answers from the officers and
directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
(v) its representatives are aware that the Company
shall place stop transfer orders with its transfer agent against the
transfer of the Option Shares in the absence of registration under the
1933 Act or an exemption therefrom as provided herein; and
(vi) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
3
<PAGE>
9. Restriction on Transfer of Option Shares.
9.1 Anything in this Agreement to the contrary
notwithstanding, T&R hereby agrees that it shall not sell, transfer by any means
or otherwise dispose of the Option Shares acquired by it without registration
under the 1933 Act, or in the event that they are not so registered, unless (i)
an exemption from the 1933 Act registration requirements is available
thereunder, and (ii) T&R has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
10. Miscellaneous.
10.1 Notices. All notices, requests, deliveries, payments,
demands and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be either delivered
personally, transmitted by electronic means or sent by a nationally recognized
next-day courier to the parties at their respective addresses set forth herein,
or to such other address as either shall have specified by notice in writing to
the other. Notice shall be deemed duly given hereunder when delivered or
transmitted as provided herein.
10.2 T&R and Stockholder Rights. T&R shall not have any of the
rights of a stockholder with respect to the Option Shares until such shares have
been issued after the due exercise of the Option.
10.3 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
10.4 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof. This
Agreement may not be amended except by writing executed by T&R and the Company.
10.5 Binding Effect; Successors. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (without regard to
choice of law provisions).
3
<PAGE>
10.7 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above:
PRE-CELL SOLUTIONS, INC. Address: 255 East Drive, Suite C
Melbourne, Florida 33326
By: /s/ Thomas E. Biddix
-----------------------------
Chief Executive Offier
TOBIN & REYES, P.A. Address: 7251 West Palmetto Park Road
Suite 205
Boca Raton, Florida 33433
By: /s/ David Tobin
-------------------------
Printed name: David Tobin
Title: Partner
4
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
PRE-CELL SOLUTIONS, INC.
255 East Drive, Suite C
Melbourne, Florida 33326
Attention: Stock Option Committee of the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of December 1,
1998 with Pre-Cell solutions, Inc. (the "Company"), I hereby irrevocably elect
to exercise the right to purchase _________ shares of the Company's common
stock, par value $.01 per share ("Common Stock").
As payment for my shares, enclosed is (check and complete applicable
box[es]):
" a [personal check] [certified check] [bank check] payable to
the order of "Global Telecommunication Solutions, Inc." in the
sum of $_________;
" confirmation of wire transfer in the amount of
$_____________; and/or
" with the consent of the Company, a certificate for
__________ shares of the Company's Common Stock, free and
clear of any encumbrances, duly endorsed, having a fair market
value of $---------.
I hereby represent and warrant to, and agree with, the Company that:
(i) I have acquired the Option and shall acquire the
Option Shares for my own account, for investment, and not with a view
towards the distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the "1933
Act") or an exemption therefrom is available thereunder and that the
Company is under no obligation to register the Option Shares for sale
under the 1933 Act;
(iv) I agree that I will not sell, transfer by any
means or otherwise dispose of the Option Shares acquired by me hereby
except in accordance with Company's policy, if any, regarding the sale
and disposition of securities owned by T&Rs and/or directors of the
Company;
(v) in my position with the Company, I have had both
the opportunity to ask questions and receive answers from the officers
and directors of the Company and all persons acting on its behalf
concerning the terms and conditions of the offer made hereunder and to
obtain any additional information to the extent the Company possesses
or may possess such information or can acquire it without unreasonable
effort or expense necessary to verify the accuracy of the information
obtained pursuant to clause (ii) above;
<PAGE>
(vi) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act or an
exemption therefrom as provided herein; and
(vii) if, at the time of issuance of the Option
Shares, the issuance of such shares have not been registered under the
1933 Act, the certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933. The
shares may not be sold or transferred in the absence
of such registration or an exemption therefrom under
said Act."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------------ --------------------------------------
(Signature) (Address)
- ------------------------------ --------------------------------------
(Print Name)
- ----------------------------------- --------------------------------------
(Federal Tax Identification Number)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") dated as of May 4, 1999
between Pre-Cell Solutions, Inc., a Colorado corporation (the "Company"), and
Harry O. Christenson (the "Consultant").
RECITALS:
WHEREAS, the Company is in the business of providing prepaid
telecommunications services; and
WHEREAS, the Consultant has experience in senior financial management
advisory services in the areas of operational accounting and corporate finance,
including but not limited to, operational accounting systems, generally accepted
accounting principals (GAAP) and Federal Acquisition Regulations ("FAR")
accounting and cost compliant systems, audit quality financial reporting
systems, merger and acquisition support and Securities and Exchange Commission
("SEC") compliance; and
WHEREAS, the Company desires to retain the Consultant and the
Consultant desires to be retained by the Company, subject to the terms and
conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Recitals. the above recitals are true and correct and are
incorporated into this Agreement by this reference.
2. Term. Subject to the terms and conditions contained in this
Agreement, the Company agrees to retain the Consultant and the Consultant agrees
to perform the Duties, agreements and covenants described herein. The term (the
"Term") of this Agreement shall begin on the date and year first above written
and shall continue in full force and effect until December 31, 1999, or until
the completion of the Duties.
3. Duties. During the term of this Agreement, the Consultant agrees to
(i) provide all necessary internal accounting support to Vestal & Wiler, the
Company's independent public accountants, in the preparation of the audited
financial statements of the Company for the fiscal years ended April 30, 1997,
1998 and 1999; (ii) support the Company's attorney in the preparation of the
Company's Form-10K filings to the SEC for the periods of April 30, 1996, 1997,
1998 and 1999; (iii) prepare the Company's Form-10Q filings to the SEC for each
of the quarterly periods of the Company's fiscal years ended April 30, 1996,
1997, 1998, 1999 and 2000; and (iv) support or prepare any other filings
determined necessary for the Company to be current with its SEC disclosures.
4. Compensation and Related Matters.
(a) Consulting Fee. During the term of this Agreement
Consultant shall be paid consulting fee (the "Consulting Fee") equal to $150.00
per hour. The Consultant shall invoice the Company weekly detailing time spent
in connection with the performance of the Duties. The weekly invoices will be
accrued on the books of the Company. Upon the completion of the Duties, or at
earlier intervals mutually agreed on between the Company and the Consultant, the
Company will pay the balance of all invoiced and unpaid amounts in cash or
common stock of the Company as provided for below.
(b) Common stock payment. The number of shares of common stock
to be issued to the Consultant in connection with payment of the consulting fees
owed will be computed based on at price per share of $ 0.10, determined to be
the market price at the time of this agreement.
(c) Business Expenses. The Company agrees to reimburse the
Consultant for reasonable business
<PAGE>
expenses incurred by the Consultant on behalf of the Company. Reimbursement
shall be made upon presentation to the Company of documenting evidence any such
expenditure.
5. Consultant's Independent Relationship. This agreement does not
constitute the Consultant as the agent or legal representative of the Company,
and the Company shall not be responsible in any way for any obligation or
liability incurred or assumed by Consultant. Consultant represents that he is
now, and agrees that he will continue during the term of this agreement to be an
independent enterprise within the meaning and requirements of any laws and
regulations of Florida and the United States, including without limitation those
laws and regulations pertaining to labor and tax matters. Consultant shall not
be deemed in any event to be the employee, agent or servant of the Company, or
person acting in a similar capacity, and accordingly, Consultant shall not be
entitled to any benefits which may be provided to employees, agents or servants,
or persons acting in similar capacities, under the laws or regulations of
Florida and the United States.
6. Payment of Taxes. Consultant shall be liable for and shall pay, and
indemnify, defend and hold Company harmless from, any and all federal, state and
local taxes and payments (including, but not limited to, income withholding,
sales, payroll, benefits and profit sharing taxes and payments, if any) assessed
or payable on any and all compensation and other monies paid to Consultant or
arising out of or related to Consultant's services in connection therewith.
Company will not withhold taxes or contributions on the amount paid to
Consultant under this agreement; however, the Company will report the amount
paid to Consultant to the Internal Revenue service on Form 1099.
7. Termination.
(a) Termination by the Company. This Agreement may be
terminated by the Company prior to the expiration of the Term set forth in
Section 2 above as follows:
(i) Death. This Agreement shall terminate upon the
death of Consultant and the Company shall have no further obligation under this
Agreement to make any payments to, or bestow any benefits on, the Consultant
from and after the date of Consultant's death, other than payments or benefits
accrued and due and payable to Consultant prior to the date of Consultant's
death.
(ii) Disability. This Agreement shall terminate if as
a result of Consultant's incapacity due to accident or illness, Consultant shall
have been unable to satisfactorily perform Consultant's Duties under this
Agreement for a period of thirty consecutive days, or for an aggregate of
forty-five days in any consecutive three-month period. In the event of a
termination due to disability under this Section, the Company shall have no
further obligation under this Agreement to make any payments to, or bestow any
benefits on, Consultant from and after the date of the termination, other than
payments or benefits accrued and due and payable to him prior to the date of
termination pursuant to this Agreement.
(iii) Cause. The Company may terminate this Agreement
for Cause at any time. For purposes of this Agreement, the Company shall have
"Cause" to terminate this Agreement if Consultant (1) engages in common law
fraud in his relations with the Company or any of its subsidiaries or
affiliates, or with any customer or business contact of the Company or any of
its subsidiaries or affiliates; (2) engages in misconduct materially injurious
to the Company; (3) materially breaches any of the provisions of this Agreement;
or (4) is convicted of any crime involving an act of moral turpitude. In the
event of a termination for Cause, the Company shall have no further obligation
under this Agreement to make any payments to, or bestow any benefits on, the
Consultant from and after the date of the termination, other than payments
accrued and due and payable to it prior to the date of termination.
Notwithstanding the foregoing, no "cause" for termination shall be deemed to
exist with respect to Consultant's acts described in clauses (2) and (3) above,
unless the Company shall have given written notice to Consultant specifying the
2
<PAGE>
"cause" with reasonable particularity and, within ten business days after such
notice, Consultant shall not have cured or eliminated the problem or thing
giving rise to such "cause."
(b) Termination by Consultant. This Agreement may be
terminated by the Consultant prior to the expiration of the Term set forth in
Section 2 above if the Company breaches a material provision of this Agreement
and the Company fails to cure such breach within ten (10) business days after
the Company's receipt of written notice from Consultant of such breach.
8. Trade Secrets and Confidential Information.
(a) The Consultant acknowledges that the Company's business
depends to a significant degree upon the possession of information which is not
generally known to others, and that the profitability of the Company's business
requires that this information remain confidential to the Company.
(b) The Consultant shall not, except as required in the course
of representing the Company, disclose or use during or subsequent to the term of
this Agreement, any confidential information relating to the Company's business.
Such information includes, but is not limited to, lists of existing or potential
customers, data, records, computer programs, manuals, processes, methods and
intangible rights which are either developed by the Consultant during the Term
or to which the Consultant has access because of its retention hereunder. All
records and equipment and other materials relating in any way to any
confidential information relating to property owners or to the Company's
business shall be and remain the Company's sole property during and after the
Term.
(c) Upon termination of engagement, the Consultant shall
promptly return to the Company all materials and all copies of materials
involving any confidential information in the Consultant's possession or
control. The Consultant agrees to represent to the Company that it has complied
with the provisions of this Section 8(c) upon termination of this Agreement.
(d) Notwithstanding the foregoing, the parties acknowledge and
agree that for purposes of this Section 8 "confidential information" shall not
include information, which becomes generally available to the public other than
as a result of unauthorized disclosure by Consultant.
9. Indemnification.
(a) The Company shall indemnify and hold Consultant harmless
during the term of this Agreement and for a period of twelve months after this
Agreement against judgments, fines, amounts paid in settlement and reasonable
expenses, including reasonable attorneys' fees incurred by Consultant in
connection with the defense of, or as the result of any action or proceeding (or
appeal therefrom) in which Consultant is made a party solely because Consultant
is or was a Consultant to the Company; provided, however, the Company shall not
indemnify and hold Consultant harmless for Consultant's own acts or omissions or
Consultant's negligence or willful misconduct.
(b) Consultant shall indemnify and hold the Company harmless
to the maximum extent permitted by law during the term of this Agreement and for
a period of twelve months after this Agreement against judgments, fines, amounts
paid in settlement and reasonable expenses, including reasonable attorneys' fees
incurred by the Company in connection with (i) any breach of this Agreement and
(ii) any misrepresentation contained in this Agreement by Consultant.
10. Mergers and Consolidation; Assignability. If the Company or any
entity resulting from any merger or consolidation referred to in this Section is
merged or consolidated into or with any other entity or entities, or if
substantially all of the assets of the Company or any such entity are sold or
otherwise transferred to another entity, the provisions of this Agreement shall
be binding upon and shall inure to the benefit of the continuing entity in or
the entity resulting from such merger or consolidation or the entity to
3
<PAGE>
which such assets are sold or transferred. Except as provided in the immediately
preceding sentence, this Agreement shall not be assignable by the Consultant.
11. Representations and Warranties. Consultant hereby represents and
warrants that by entering into this Agreement and performing the services and
duties required hereunder for the Company, Consultant is not and will not be
interfering with, violating, or in conflict with any agreement, commitment,
promise, duty, obligation or representation by which Consultant or any of its
subsidiaries, agents or affiliates are bound, including without limitation, (i)
any obligation to maintain confidentiality of any information acquired by
Consultant, its agents, affiliates or subsidiaries prior to or outside of this
Agreement, (ii) any obligation to refrain from competing with any present or
former client or employer of Consultant, its agents, subsidiaries, affiliates or
other third party. Consultant represents and warrants that Consultant will not
use in performing services for the Company any materials, documents or
information of a present or former employer or other third party that are not
generally available to the public, or that were not learned or received by
Consultant on a non-confidential basis from a party lawfully entitled to possess
and disclose such information, unless written authorization has been obtained
from the owner for such possession and use. Consultant further represents and
warrants that Consultant has not entered into and will not enter into any oral
or written agreement which in any way is or will be in conflict with this
Agreement.
12. Miscellaneous.
(a) The captions in this Agreement are not part of its
provisions, are merely for reference and have no force or effect. If any caption
is inconsistent with any provision of this Agreement, such provision shall
govern.
(b) This Agreement is made in and shall be governed by and
construed in accordance with the laws of the State of Florida, without giving
effect to conflict of law principles.
(c) To the extent that the terms set forth in this Agreement
or any word, phrase, clause or sentence is found to be illegal or unenforceable
for any reason, such word, phrase, clause or sentence shall be modified or
deleted in such manner so as to afford the Company the fullest protection
commensurate with making this Agreement, as modified, legal and enforceable
under applicable laws, and the balance of this Agreement shall not be affected
thereby, the balance being construed as severable and independent.
(d) All notices given under this Agreement shall be in writing
and shall be delivered by hand or reputable overnight courier and, if intended
for the Company, shall be addressed to it 255 East Drive, Suite C, Melbourne,
Florida, 32904. If intended for the Consultant, notices shall be delivered by
hand or reputable overnight courier to the Consultant's then current home
address as shown on the Company's records, or to such other address as the
Consultant directs in a notice to the Company. All notices shall be deemed to be
given on the date received at the address of the addressee or, if delivered
personally, on the date delivered.
(e) As used in this Agreement where appropriate, the masculine
shall include the feminine; where appropriate, the singular shall include the
plural and the plural shall include the singular.
(f) This Agreement contains all obligations and understandings
between the parties relating to the subject of this Agreement and supersedes all
prior discussions, negotiations and agreements, whether in writing or otherwise,
if any, between them, and none of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations other than as
expressly provided or referred to in this Agreement. This Agreement is intended
to cancel and supersede all existing agreements between the Consultant and the
Company.
4
<PAGE>
(g) This Agreement may be modified only by a written
instrument properly executed by the parties to this Agreement.
(h) No waiver by any party to this Agreement, whether
expressed or implied, of its rights under any provision of this Agreement shall
constitute a waiver of the party's rights under the provisions at any other time
or a waiver of the party's rights under any other provision of this Agreement.
(i) The Consultant and the Company agree that the prevailing
party in any action to enforce any breach of any covenant or term in this
Agreement shall be reimbursed by the other party for all expenses and reasonable
attorneys' fees incurred by that party to enforce this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the day and year first above written.
PRE-CELL SOLUTIONS, INC.
By: /s/ Thomas E. Biddix
------------------------
Thomas E. Biddix
President and CEO
CONSULTANT
/s/ Harry O. Christenson
------------------------
Harry O. Christenson
5
TOBIN & REYES, P.A.
7251 W. Palmetto Park Rd., Suite 205
Boca Raton, FL 33433
March 7, 2000
Pre-Cell Solutions, Inc.
255 East Drive, Suite C
Melbourne, FL 32904
R: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the purchase and
offering of Pre-Cell Solutions, Inc. ("Company") of up to 7,365,627 shares
("Shares") of the Company's Common Stock, $.01 par value per share, pursuant to
options which have been or may be granted under certain other employee benefit
plans (the "Plans").
In such capacity, we have examined, signed and conformed copies of the
Registration Statement on Form S-8 relating to the Shares filed by the Company
with the Securities and Exchange Commission ("Commission") under the Securities
Act of 1933, as amended ("Securities Act") on March 8, 2000, (hereinafter
referred to as the "Registration Statement"), and have examined the Prospectus
dated March 8, 2000, relating to the Shares ("Prospectus"). We have also
examined, among other documents, signed copies of the Stock Option Agreements
between the Company and the grantees of options under the Plans, copies of the
Certificate of Incorporation, as amended, and By-Laws of the Company, as
amended, and copies of resolutions adopted by the Company's Board of Directors
relating, among other things, to the authorization and sale of the Shares. In
addition, we have examined and relied upon, to the extent we deemed such
reliance proper, certificates of officers and directors of the Company,
certificates of certain public officials and such other records and documents as
we have considered necessary and proper in order that we may render the opinion
hereinafter set forth. We have assumed the authenticity of such Certificate of
Incorporation, as amended, By-Laws, as amended, resolutions, certificates,
records and other documents examined by us and the correctness of all statements
of act contained therein, and nothing has come to our attention which indicates
that such documents and other items are not authentic or correct. With respect
to such examination, we have assumed the genuineness of all signatures appearing
on all documents presented to us as originals and the conformity to originals of
all documents presented to us as conformed or reproduced documents. We have not
examined the certificates for the Shares other than specimens thereof.
As members of the Bar of the State of Florida, we do not purport to be
experts in the laws of any jurisdiction other than the State of Florida, and
with respect to the federal laws of the United States.
Based on the foregoing, we are of the opinion that the Shares being
offered pursuant to the Stock Option Agreements and the terms of the Plans have
been duly authorized and, when issued and delivered against payment therefor, as
contemplated by the Registration Statement and the Stock Option Agreements, will
be validly issued and fully paid and nonassessable.
<PAGE>
This letter is being delivered to you solely for your benefit and not
be relied upon in any manner by any other person.
Very truly yours,
/s/ Tobin & Reyes, P.A.
-------------------------
TOBIN & REYES, P.A.
2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Pre-Cell Solutions, Inc. and subsidiaries
We consent to the use of our reports incorporated herein by reference.
/s/ Vestal & Wiler, P.A.
Vestal & Wiler, P.A.
Orlando, Florida
February 25, 2000
