As filed with the Securities and Exchange Commission on
October 31, 1996
Commission No. 0-25276
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIGIMEDIA USA, INC.
(Exact name of issuer as specified in its Charter)
NEVADA 88-032364
State of Incorporation (I.R.S.Employer
Identification No.)
2454 Northeast 13th Avenue
Fort Lauderdale, FL. 33305
(Address of Principal Executive Offices)
(Mailing Code)
CONSULTANT CONTRACTS
(Full title of the Plan)
Kirk J. Girrbach, President
DigiMedia USA, Inc.
2454 Northeast 13th Avenue
Fort Lauderdale, FL. 33305
(954) 565-8726
(Name, address. including zip code and telephone
number, include area code of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Maximum Maximum
To Be Amount to be Aggregate
Registration Registered Price Per Offering Fee
Share (1) Price (1)
Common Stock 606,538 $.468 $283,859.78 $100.00
$.000667 par Value
Per Share
Total 606,538 $.468 $283,859.78 $100.00
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457 on the basis of the
average bid ($.468) price per share of common stock of
Interactive DigiMedia USA, Inc. on October 3, 1996 as
reported by the National Quotation Bureau NonNasdaq Price
Report for Over the Counter securities.
PART 11
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, or portions thereof, heretofore
filed by DigiMedia USA, Inc. (the "Company") with the U.S.
Securities and Exchange Commission (the "Commission") are
hereby incorporated by reference in this Registration
Statement on Form S-8 (the "Registration Statement"):
(a) The latest Quarterly Report on Form 10-QSB for the
quarter ended June 30, 1996, filed by the Company with the
Commission pursuant to Section 13(a) under the Exchange Act;
(b) All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 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
date of filing such documents.
Item 4. Description or Securities.
Not applicable
Item 5. Interest of Named Experts and Counsel
No experts or counsel have any substantial interest, direct or
indirect, in the Company.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Company provide that the
Company shall indemnify the directors and officers of the
Company. This indemnification extends to cover the reasonable
costs, expenses and liabilities (including reasonable attorney
fees) incurred by or imposed upon him in connection with, or
resulting from, any claim, action, suit, proceeding,
investigation or inquiry of whatever nature in which he may be
involved as a party or otherwise by reason of his being or having
been a director or officer of the corporation, whether or not he
continues to be such director or officer of the corporation, at
the time of the incurring or imposition of such costs, expenses
or liabilities, except in relation to matters as to which he
shall be finally adjudged in such action, suit, proceeding,
investigation or inquiry to be liable for willful misconduct,
willful neglect, or negligence toward or on behalf of the
corporation in the performance of his duties as such director or
officer of the Corporation. As to whether or not a director or
officer was liable by reason of willful misconduct, willful
neglect, or negligence toward or on behalf of the corporation in
the performance of his duties as such director or officer of the
corporation, in the absence of such final adjudication of the
existence of such liability, the Board of Directors and each
director and officer may conclusively rely upon an opinion of
legal counsel selected by or in the manner designated by the
Board of Directors. The foregoing right to indemnification shall
be in addition to and not in limitation of all other rights to
which such person may be entitled as a matter of law and shall
inure to the benefit of the legal representative of such person.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to
directors' officers and controlling persons of the Registrant,
the Registrant has been advised that in the opinion of the
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 the public policy as expressed
in the Act and will be governed by the final adjudication of such
issue.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
1. Amended and Restated Articles of Incorporation.
2. Bylaws of the Company.
3. Specimen Common Stock Certificate
4. Consent and Opinion of Counsel that said securities are
validly issued.
5. Consulting Services Agreements with attached
Exhibits.
Item 9. Undertakings
A. To Update Annually
The undersigned registrant hereby undertakes (1) other than as
provided in the proviso to item 512(a) of regulation S-K, to
file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement (a) to
include any prospectus required by Section 10(a)(3) of the
Securities Act, (b) 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, and (c) 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; (2) that for the purpose of
determining any liability under the Securities Act, each such
post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering
thereof; and (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. Incorporation of Subsequent Securities Exchange Act of
1934 Documents by Reference
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) of Section 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.
C. Indemnification of Officers and Directors
Insofar as indemnification for liabilities arising under the
Securities Act 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 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 of 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.
SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Fort Lauderdale, FL. on
October 3, 1996.
Pursuant to the requirements of the Securities Act of 1933,
this Form S-8 Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
Vice President/Dir. October 3, 1996
Signatures Titles Date
EXHIBIT INDEX
Exhibit Number Description
1 Amended and Restated Articles
of Incorporation
2 By-Laws of the Company
3 Specimen Common Stock Certificate
4 Consent and Opinion of Counsel
5 Consulting Service Agreements
Articles of Incorporation
of
INTERNATIONAL TRAINING & EDUCATION CORP.
FIRST. The name of the corporation is:
INTERNATIONAL TRAINING & EDUCATION CORP.
SECOND. Its principle office in the State of Nevada is
located at 251 Jeanell Dr. Suite 3, Carson City, NV 89703, that
this Corporation may maintain an office, or offices, in such
other place within or without the state of Nevada as may from
time to time designated by the Board of Directors, or by the by-
laws of said corporation, and that this Corporation may conduct
all Corporation business of every kind and nature, including the
holding of all meetings of Directors and Stockholders, outside
the State of Nevada as well as within the State of Nevada.
THIRD. The objects for which this Corporation is formed are:
To redomicile from the state of Utah into the state of Nevada and
to engage in any lawful activity, but not be limited to the
following:
(A) Shall have such rights, privileges and powers as may be
conferred upon corporations by any existing law.
(B) May at any time exercise such rights, privileges and
powers, when not inconsistent with the purposes and objects for
which this corporation is organized.
(C) Shall have power to have succession by its corporate
name for the period limited in its certificate or articles of
incorporation, and when no period is limited, perpetually, or
until dissolved and its affairs wound up according to law.
(D) Shall have power to sue and be sued in any court of law
or equity.
(E) Shall have power to make contracts.
(F) Shall have power to hold, purchase and convey real and
personal
estate and to mortgage or lease any such real and personal
estate, with its franchises. The power to hold real and personal
estate shall include the power to take the same devise or bequest
in the State of Nevada, or any other state, territory or country.
(G) Shall have power to appoint such officers and agents as
the affairs of the corporation shall require, and to allow them
suitable compensation.
Shall have power to make by-laws not inconsistent with
the constitution of the United States, or of the State of Nevada,
for the management, regulation and government of its affairs and
property, the transfer of its stock, the transaction of its
business, and the calling and holding of meetings of its
stockholders.
(I) Shall have power to wind up and dissolve itself, or be
wound up or dissolved.
(J) Shall have power to adopt and use a common seal or
stamp by the corporation on any corporate documents is not
necessary. The corporation may use a seal or stamp, if it
desires, but such nonuse shall not in any way affect the legality
of the document.
(K) Shall have power to borrow money and contract debts
when necessary for the transaction of its business, or for the
exercise of its corporate rights, privileges or franchises, or
for any other lawful purpose of its incorporation; to issue
bonds, promissory notes, bills of exchange, debentures, and other
obligations and evidences of indebtedness, payable upon the
happening of a specified event or events,, whether secured by
mortgage, pledge, or otherwise, or unsecured, for money borrowed,
or in payment for property purchased, or acquired, or for any
other lawful object.
(L) Shall have power to guarantee, purchase, hold, sell,
assign, transfer, mortgage, pledge or otherwise dispose of the
shares of the capital stock of, or any bonds, securities or
evidences of the 'indebtedness created by, any other corporation
or corporations of the State of Nevada, or any other state or
government, and while owners of such stock, bonds, securities or
evidences of indebtedness, to exercise all the rights, powers and
privileges of ownership, including the right to vote, if any.
(M) Shall have power to purchase, hold, sell and transfer
shares of its own capital stock, and use therefor its capital,
capital surplus, surplus, or other property or fund.
(N) Shall have power to conduct business,, have one or more
offices, and hold, purchase, mortgage and convey real and
personal property 'in the State of Nevada, and in any of the
several states, territories, possessions and dependencies of the
United States, the District of Columbia, and any foreign
countries.
(0) Shall have power to do all and everything necessary and
proper for the accomplishment of the objects enumerated in its
certificate or articles of incorporation, or any amendment
thereof, or necessary or incidental to the protection and benefit
of the corporation, and, in general, to carry on any lawful
business necessary or incidental to the attainment of the objects
of the corporation, or any amendment thereof.
(P) Shall have the power to make donations for the public
'welfare or for charitable, scientific or educational purposes.
(Q) Shall have the power to enter into partnerships,
general or limited, or joint ventures, in connection with any
lawful activities.
FOURTH. That the voting common stock authorized may be
issued by the corporation is FIFTY MILLION (50,000,000) shares of
stock with a nominal or par value of .001 cents per share and
TBREE THOUSAND (3,000) shares of convertible cumulative preferred
stock with a nominal or par value of .001 cents per share shall
be authorized. Said shares may be issued by the corporation from
time to time for such considerations as may be fixed from time to
time by the Board of Directors.
FIFTH, The governing body of the corporation shall be known
as directors, and the number of directors may from time to time
be increased or decreased in such manner as shall be provided by
the By-Laws of this Corporation, providing that the number of
directors shall be reduced to less than one (1). The name and
post office address of the first board of Directors shall be one
(1) in number and listed as follows:
NAME POST OFFICE ADDRESS
Michael D. Taylor 251 Jeanell Dr. Suite 3
Carson City, NV 89703
SIXTH, The capital stock, after the amount of the
subscription price, or par value, has been paid in, shall not be
subject to assessment to pay the debts of the corporation.
SEV'ENTH. The name and post office address of the
incorporators signing the Articles of Incorporation is as
follows:
NAME ADDRESS
Michael D. Taylor 251 Jeanell Dr. Suite 3
Carson City, Nevada 89701
EIGHTH. The resident agent for this corporation shall
be:
CORPORATE ADVISORY SERVICE, INC.
The address of said agent, and, the principle or statutory
addr6ss of this corporation in the State of Nevada is.
251 Jeanell Dr. Suite 3,
Carson City, Nevada 89703
NINTH. The corporation is to have perpetual existence.
TENTH. In furtherance and not in limitation of the powers
conferred by stature, the Board of Directors is expressly
authorized:
Subject to the By-Laws, if any, adopted by the
stockholders, to make, alter or amend the By-Laws of the
Corporation.
To fix the amount to be reserved as working capital
over and above its capital stock paid 'in; to authorize and cause
to be executed, mortgages and liens upon the real and personal
property of this corporation.
By resolution passed by a majority of the whole Board,
to consist of one (1)or more committees, each committee to
consist of one or more directors of the corporation, which, to
the extent provided in the resolution, or 'in the By-Laws of the
Corporation, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the
Corporation. Such committee, or committees, shall have such
name, or names, as may be stated in the By-Laws of the
Corporation, or as ma y be determined from time to time by
resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the
Stockholders holding stock entitling them to exercise at least a
majority of the voting power given at a Stockholders meeting
called for the purpose, or when authorized by written consent of
the holders of at least a majority of the voting stock issued and
outstanding, the Board of Directors shall have power and
authority at any meeting to sell, lease or exchange all of the
property and assets of the Corporation, including its good will
and its corporate franchises, upon such terms and conditions as
its Board of Directors deems expedient and for the best interests
of the Corporation.
ELEVENTH. No shareholder shall be entitled as a matter of
right to subscribe for or receive additional shares of any class
of stock of the Corporation, whether now or hereafter authorized,
or any bonds, debentures or securities convertible into stock may
be issued or disposed of by the Board of directors to such
persons and on such terms as is in its discretion it shall deem
advisable.
TWELFTH, No director or officer of the Corporation shall be
personally liable to the Corporation or any of its stockholders
for damages for breach of fiduciary duty as a director or officer
involving any act of omission of any such director or officer;
provided, however, that the foregoing provision shall not
eliminate or limit the liability of a director or officer (i) for
acts or omissions which involve intentional misconduct, fraud or
a knowing violation of the law, or (ii) the payment of dividends
in violation of Section 78.300 of the Nevada Revised Statutes.
Any repeal or modification of this Article by the stockholders of
the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a
director or officer of the Corporation for acts or omissions
prior to such repeal or modification.
THIRTEENTH. This Corporation reserves the right to amend,
alter, change, in any manner now or hereafter prescribed by
statute, or by the Articles of Incorporation, and all rights
conferred upon Stockholders herein are granted subject to this
reservation.
I, THE UNDERSIGNED, being the Incorporator Herein
before named for the purpose of forming a Corporation pursuant to
the General Corporation Law of the State of Nevada, do make and
file these Articles of Incorporation, hereby declaring and
certifying that the facts herein are true, and accordingly have
hereunto set my hand this 16th. day of June, 1994
Michael D. Taylor
STATE OF NEVADA
SS:
CARSON CITY
On this 16th. day of June, 1994, in Carson City, Nevada, before
me, the undersigned, A notary Public in and for Carson City,
State of Nevada, personally appeared:
Michael D. Taylor
Known to be the person whose name is subscribed to the foregoing
document and acknowledged to me that he executed the same.
JILL BLAIR
NOTARY PUBLIC NEVADA
CARSON CITY
JILL BLAIR
Notary Public
Corporate Advisory Service, Inc. does hereby accept as Resident
Agent for the previously named Corporation.
Corporate Advisory Service, Inc.
By Michael D. Taylor, President
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
INTERNATIONAL TRAINING & EDUCATION CORP.
We the Undersized President and Vice-President/
Assistant Secretary of International Training & Education Corp.
do hereby certify:
That the Board of Directors of said corporation at a
meeting duly convened, held on the 5th day of February, 1996
adopted a resolution to amend the original articles as follows:
Article FIRST is hereby amended to read as follows:
The name of the corporation is:
DigiMedia USA, INC.
The number of shares of the corporation outstanding and
entitled to vote on an amendment to the Articles of
Incorporation is 6,897,814; that the said changes and amendment
have been consented to and approved by a majority of the
stockholders holding at least a majority of each class of
stock outstanding and entitled to vote thereon.
_______________
President
_______________
Assistant Secretary
State of Florida
County of Broward
On February 7, 1996, personally appeared before me a
Notary Public, Kirk J. Girrbach and Gene Farmer, who
acknowledged that they executed the above instrument.
_________________
Notary Public
1
BYLAWS
OF
DigiMedia USA, INC.
ARTICLE I - SHAREHOLDERS
Section 1.1 Annual Meeting, The annual meeting of the
Shareholders for the election of Directors and for the
transaction of such other business as may properly come before
the meeting shall be held at such place, either within or without
the State of Florida. on such date and at such time as the Board
of Directors may by resolution provide, or if the Board of
Directors fails to provide, then such meeting shall be held at
the principal office of the Corporation at 2454 Northeast 13th
Avenue, Fort Lauderdale, Florida, on the first Tuesday of June of
each year, or, if such date is a legal holiday, on the next
succeeding business day. The Board of Directors may specify by
resolution prior to any special meeting of Shareholders held
within the year that such meeting shall be in lieu of the annual
meeting.
Section 1.2 Special Meetings: Call and Notice of Meetings.
Special meetings of the Shareholders may be called at any time by
the Board of Directors, the President, or upon written request of
the holder(s) of at least twenty-five percent (25%) of the
outstanding common stock. Such meetings shall be held at such
place, either within or without the State of Florida, as is
stated in the call and notice thereof. Written notice of such
meeting of Shareholders, stating the time and place of the
meeting, and the purpose of any special meeting shall be mailed
to each Shareholder entitled to vote at or to notice of such
meeting at his or her address shown on the books of the
Corporation not less than ten (10) nor more than sixty (60) days
prior to such meeting unless such Shareholder waives notice of
the meeting . Any Shareholder may execute a waiver of notice, in
person or by proxy, either before or any meeting, and shall be
deemed to have waived notice if he is present at such meeting in
person or by proxy. Neither the business transacted at nor the
purpose of any meeting need be stated in the waiver of notice of
such meeting.
Notice of any meeting may be given by the President, the
Secretary or by the person(s) calling such meeting. No notice
need be given of the time, and place of reconvening of any
adjourned meeting, if the time and place to which the meeting is
adjourned are announced at the adjourned meeting.
Section 1.3 Quorum: Required Shareholder Vote. A quorum for
the transaction of business at any annual or special meeting of
Shareholders shall exist when the holders of a majority of the
outstanding shares entitled to vote are represented either in
person or by proxy at such meeting. If a quorum is present, the
affirmative vote of the majority of the shares represented at the
meeting and entitled to vote on the special matter shall be the
act of the Shareholders unless a greater vote is required by law,
by the Articles of Incorporation or by these Bylaws. When a
quorum is once present to organize a meeting, the Shareholders
present may continue to do business at the meeting or at any
adjournment thereof, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum. The holders of a
majority of the voting shares represented at a meeting, whether
or not a quorum is present, may adjourn such meeting from time to
time.
Section 1.4 Proxies. A Shareholder may vote either in person
or by a proxy which be has duly executed in writing. No proxy
shall be valid after eleven (11) months from the date of its
execution unless a longer period is expressly provided in the
proxy.
Section 1.5 Action of Shareholders Without Meeting. Any action
required to be or which may be taken at a meeting of the
Shareholders, may be taken without a meeting if written consent,
setting forth the actions so taken shall be signed by all of the
Shareholders entitled to vote with respect to the subject matter
thereof. Such consent shall have the same force and effect as
unanimous affirmative vote of the Shareholders and shall be filed
with the minutes of the proceedings of the Shareholders.
ARTICLE II - DIRECTORS
Section 2.1 Power of Directors. The Board of Directors shall
manage the business of the Corporation and may exercise all the
powers of the Corporation, subject to any restrictions imposed by
law, by the Articles of Incorporation or by the Bylaws.
Section 2.2 Composition of the Board. The Board of Directors
of the Corporation shall consist of between three and nine
natural persons of the age of eighteen years or over, except that
if all shares of the Corporation are owned beneficially and of'
record by less than three (3) shareholders, the number of
Directors may be less than three but not less than the number of
shareholders. Directors need not be residents of the State of
Florida or Shareholders of the Corporation. At each annual
meeting the Shareholders shall fix the number of Directors and
elect the Directors, who shall serve until their successors are
elected and qualified; provided that the Shareholders may, by the
affirmative vote of the holders of a majority of the shares
entitled to vote at an election of Directors increase or reduce
the number of Directors and add or remove Directors with or
without cause at any time.
Section 2.3 Meeting of the Board: Notice of Meeting; Waiver of
Notice. The annual meeting of the Board of Directors for the
purpose of electing officers and transacting such other business
as may be brought before the meeting shall be held each year
immediately following the annual meeting of Shareholders. The
Board of Directors may by resolution provide for the time and
place of other regular meetings and no notice of such regular
meeting need be given, except as provided in Article VII of these
Bylaws, in which case notice shall be given. Special meetings of
the Board of Directors may be called by the President, or by two
(2) Directors, and written notice of the time and place of such
meetings shall be given to each Director by telephone, telegraph,
cablegram, Federal Express or in person at least two (2) days
before the meeting. Any Director may execute a waiver of notice,
either, before or after any meeting, and shall be deemed to have
waived notice if he is present at such meeting. Neither the
business to be transacted at, nor the purpose of, any meeting of
the Board of Directors need be stated in the notice or waiver of
notice of such meeting. Any meeting may be held at any place
within or without the State of Florida.
Section 2.4 Quorum: Vote Requirement. A majority of the
Directors in office at any time shall constitute a quorum for the
transaction of business at any meeting. When a quorum is
present, the vote of a majority of the Directors present shall be
the act of the Board of Directors, unless a greater vote is
required by the Articles of Incorporation or by these Bylaws.
Section 2.5 Action of the Board Without Meeting. Any action
required or permitted to be taken at a meeting of the Board of
Directors or any committee thereof may he taken without a meeting
if written consent, setting forth the action so taken, is signed
by all the Directors or committee members and filed with the
minutes of the proceedings of the Board of Directors or
committee. Such consent shall have the same force and effect as
an unanimous affirmative vote of the Board of Directors or
committee, as the case may be.
Section 2.6 Committees. The Board of Directors, by resolution
adopted by a majority of all of the Directors, may designate from
among its members an Executive Committee, and/or other
committees, each composed of two (2) or more Directors, which may
exercise such authority as is delegated by the Board of
Directors, provided that no committee shall have the authority of
the Board of Directors in reference to (a) an amendment to the
Articles of Incorporation or the Bylaws of the corporation, (b)
the adoption of a plan of merger or consolidation, (c) the sale,
lease. exchange or other disposition of all or substantially all
of the property and assets of the Corporation, or (d) voluntary
dissolution of the Corporation or a revocation thereof.
Section 2.7 Vacancies. A vacancy occurring in the Board of
Directors by reason of the removal of a Director by the
Shareholders shall be filled by the Shareholders, or, if
authorized by the Shareholders, by the remaining Directors. Any
other vacancy occurring in the Board of Directors may be filled
by the affirmative vote of a majoritv of the remaining Directors
through less than a quorum of the Board of Directors, or by the
sole remaining Director, as the case may be, or, if the vacancy
is not so filled, or if no Director remains, by the Shareholders.
A Director elected to fill a vacancy shall serve for the
unexpired term of his predecessor in office.
ARTICLE III - OFF1CERS
Section 3.1 Executive Structure of the Corporation. The
officers of the Corporation shall consist of a President, a
Secretary, a Treasurer and such other officers as may be elected
by the Board of Directors. Each officer shall hold office for
the term for which he has been elected until he is removed or his
successor has been elected and qualified. The same individual
may simultaneously hold more than one office in the Corporation.
The Board of Directors may designate a Vice President as an
Executive Vice President and may designate the order in which
other Vice Presidents may act.
Section 3.2 President. The President shall be the chief
executive officer of the Corporation and shall give general
supervision and direction to the affairs of the Corporation,
subject to the direction of the Board of Directors. He shall
preside at all meetings of the Shareholders.
Section 3.3 Vice President. The Vice President shall act in
the case of absence or disability of the President.
Section 3.4 Secretary. The Secretary shall keep the minutes
of the proceedings of the Shareholders and of the Board of
Directors, and shall have custody of and attest to the seal of
the Corporation.
Section 3.5 Treasurer. The Treasurer shall be responsible for
the maintenance of proper financial books and records of the
Corporation.
Section 3.6 Other Duties and Authority. Each officer,
employee and agent of the Corporation shall have such other
duties and authority as may be conferred to him by the Board of
Directors or delegated to him by the President.
Section 3.7 Removal of Officers. Any officer may be removed
at any time by the Board ()f Directors, and such vacancy may be
filled by the Board of Directors. This provision shall not
prevent the making of a contract of employment for a definite
term, with any officer and shall have no effect upon any cause of
action which any officer may have as a result of removal in
breach of a contract of employment.
Section 3.8 Salaries. The salaries of the officers of the
Corporation shall be fixed from time to time by the Board of
Directors. No officer shall be prevented from receiving such
salary by reason of the fact that he is also a Director of the
Corporation.
ARTICLE IV - STOCK
Section 4. 1 Stock Certificates. The shares of stock of the
Corporation shall be represented by certificates in such form as
may be approved by the Board of Directors, which certificates
shall be issued to the Shareholders of the Corporation in
numerical order from the stock book of the Corporation, and each
of which shall bear the name of the Shareholder, the number of
shares represented and the date of issue; and which shall be
signed by the President and/or the Secretary and which shall be
sealed with the seal of the Corporation. No share certificate
shall be issued until the consideration for the share represented
thereby has been fully paid.
Section 4.2 Transfer of Stock. Shares of stock of the
Corporation shall be transferred only on the books of the
Corporation upon surrender to the Corporation of the
certificate(s) representing the shares to be transferred,
accompanied assignment in writing of such shares properly
executed by the shareholder of record or his or her duly
authorized attorney-in-fact, and with all taxes on the transfer
having been paid. The Corporation may refuse any requested
transfer until furnished evidence satisfactory to it that such
transfer is proper. Upon the surrender of a certificate for
transfer of stock,, such certificate shall at once be
conspicuously marked on its face "canceled" and filed with the
permanent stock records of the Corporation. The Board of
Directors may make such additional rules concurring the issuance,
transfer and registration of stock and requirements regarding the
establishment of lost, destroyed or wrongfully taken stock
certificates (including any requirement of an indemnity bond
prior to issuance of any replacement certificate) as it deems
appropriate.
Section 4.3 Registered Stockholders. The Corporation may deem
and treat the holder of record of stock as the absolute owner for
all purposes and shall not be required to take any notice of any
right or claim of right of any other person.
Section 4.4 Record Date. For the purpose of determining
Shareholders entitled to notice of or to vote at any meeting of
Shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of
Shareholders for any other purpose, the Board of Directors of the
Corporation may fix in advance a date as the record date for any
such determination of Shareholders, such date in any case to be
not more than sixty (60) days and, in the case of a meeting of
Shareholders, not less than (10) days prior to the date on which
the particular action requiring such determination of
Shareholders is to be taken.
Section 4.5 Restriction on Transfer of Stock. No transfer
of any shares of stock of the Corporation (other than transfer
without consideration to permitted transferees) shall be made on
the books of the Corporation, and no unregistered transfer of any
legal or equitable interest in any such shares shall be made or
be effective unless all the provisions of this Bylaw shall have
been complied with. Permitted transferees shall include only the
heirs, the personal representative. spouse or descendants of the
Shareholders or any trust for the sole benefit of any one or more
of these permitted transferees or any existing Shareholder First,
the shares shall. be offered in writing to the Corporation and
its Shareholders for sale to them at a price fixed in such offer.
The Corporation may, within ten (10) days after the receipt of
such written offer, purchase all or any part of such shares by
mailing or delivering a written acceptance to that effect to the
person making such offer. If the Corporation shall accept such
offer in whole or in part, it shall specify a settlement date not
more than five (5) days after the date of such acceptance for the
delivery to it, against payment, of the certificates representing
the shares so purchased. Such certificates shall be delivered
duly endorsed for transfer with signature guarantee and with all
required tax stamps affixed or with funds for payment of such
taxes. If the Corporation shall not purchase all of such shares,
the Corporation shall, on behalf of the registered owner promptly
notify its Shareholders in writing, by mail, or personal delivery
that the balance of such shares is available for purchase by
Shareholders at the price specified in the offer. Each
shareholder may elect to purchase all or any part of such shares
by a written acceptance to that effect received by the
Corporation within fifteen (15) days after the date of mailing or
delivery of such notification. If the Shareholders shall elect
to purchase in the aggregate more shares than are available, the
available shares shall be divided among the accepting
Shareholders in proportion to their registered ownership of
shares of the Corporation, rounding out fractions of shares, if
any, in favor of smaller Shareholders. @iitd without allocating
to any Shareholder shares which he does not desire to purchase.
Such apportionment shall be made by the President of the
Corporation and he shall fix the earliest practicable settlement
date for the completion of the purchase of such shares and shall
notify all interested persons of the apportionment and the
settlement date by such means as he shall deem sufficient.
Promptly after such settlement, or if no Shareholders elect to
Purchase such shares then promptly after the expiration of the
time for such election, the President shall determine whether all
of the provisions of this Bylaw have been complied with, and if
they have, he shall declare the unpurchased shares free shares
and shall notify the registered owner of such determination. For
a period of three (3) months beginning on the first full business
day following the date of such notification the shares so
declared to be free may be sold by the owner thereof to any
person, whether or not a shareholder, at a price not less than
and on terms no less favorable than the price and terms in. which
the, shares were offered to the Corporation and its Shareholders.
After such three (3) month period, such shares shall again be
subject to the restrictions imposed by this Bylaw. The
President's decision regarding the apportionment among the
Shareholders, the settlement and all matters relating to the
interpretation of this Bylaw shall be final. In the absence of
the President, such decisions shall be made by the Senior Vice
President, if any, and if Tik-)i, then by the Secretary. Shares
transferred to any individual or entity shall remain subject to
the restrictions and provisions of this section.
Shares that are restricted pursuant to this section shall be
so indicated by having the following legend on each certificate:
"Notice is hereby given that the sale, assignment,
transfer, pledge or other disposition of the shares of
capital stock represented by this certificate is subject to
the transfer" restrictions contained within the Bylaws of
the Corporation, a copy of which is on file in the Office of
the Secretary of the Corporation."
To the extent this section conflicts with any Buy-Sell Agreement
between the Corporation and its Shareholders, such Buy-Sell
Agreement shall control.
Section 4.6 The Corporation may issue Certificates for Common
Stock Purchase Options. Said Certificates shall be issued
subject to terms and conditions set by the Board of Directors,
which shall provide for the terms for exercising sale
Certificates by surrendering said Certificate(s) to exercise an
option to purchase stock. All such Certificates and the Shares
issued pursuant thereto shall be restricted, unless and until the
Corporation is successful in procuring a registration for said
shares. The pricing for such shares shall be determined by the
Board of Directors.
ARTICLE V DEPOSITORIES SIGNATORIES, SEAL;
Section 5.1 Depositories. All funds of the Corporation shall
be deposited in the name of the Corporation in such bank(s) or
other financial institutions as the Board. of Directors may from
time to time designate and shall be drawn down on checks, drafts
or other orders signed on behalf of the Corporation by such
persons as the Board of Directors may from time to time
designate.
Section 5.2 Contracts and Deeds. All contracts, deeds and
other instruments shall be signed on behalf of the corporation by
the President or by such other officer(s) or agent(s) as the
Board of Directors may from time to time by resolution provide.
Section 5.3 If the seal is affixed to a document, the
signature of the Secretary shall attest the seal. The seal and
its attestation may be lithographed or otherwise printed on any
documents and shall have, to the extent permitted by law, the
same force and effect as if it had been affixed and attested
manually.
ARTICLE VI - INDEMNITY
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. including any action by or in the right of the
Corporation, by reason of the fact that he or she is or was a
Director or Officer of the Corporation, or is or was serving at
the request of the Corporation as a Director of Officer of
another corporation, partnership, joint venture. trust or, other
enterprise, shall be indemnified by the Corporation against
expenses including reasonable attorney fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection such action, suit or proceeding, unless that
person failed to meet the standard of conduct set forth in the
General Corporation Law of Nevada.
ARTICLE VII - AMENDMENT OF BYLAWS
The Board of Directors shall have the power to alter, amend or
repeal the Bylaws or adopt new Bylaws, but any Bylaws adopted by
the Board of Directors may be altered, amended or repealed and
new Bylaws adopted by the Shareholders-. The Shareholders may
prescribe that any Bylaws adopted by them shall not be altered,
amended or repealed by the Board of Directors. Action by the
Directors with respect to the Bylaws shall be taken by an
affirmative vote of a majority of all of the Directors then in
office. Action by the Shareholders with respect to the Bylaws
shall be taken by an affirmative vote of a majority of all shares
outstanding and entitled to vote. Prior to any action under this
Article, seven (7) days written notice (in accordance with the
requirements of Article 11, Section 2.3) shall be given to the
Directors, and ten (10) days written notice (in accordance with
the requirements of Article I, Section 1.2) shall be given to the
Shareholders.
I. Gene Farmer, Vice-President of DigiMedia USA, Inc., certify
that the foregoing are the Bylaws of said Company, adopted
September 13, 1996.
DigiMedia USA, Inc.
Gene Farmer
EXHIBIT 3
Not Applicable
EXHIBIT 4
NORMAN L. SIRAK
ATTORNEY AT LAW
Member, D.C. Bar Association (330)588-9818
Member Ohio Bar Association FAX (330) 588-8802
October 15, 1996
DigiMedia USA, Inc.
2454 Northeast 13th Avenue
Fort Lauderdale, Florida 33305
Ref. : Form S-8 / Consultant Contracts
To Whom It May Concern:
Reference is made to your proposed registration of 606,538 shares
of Common Stock of your company as contemplated by the Registration
Statement on Form S-8 filed by DigiMedia USA, Inc. with the Securities and
Exchange Commission under the Securities Act of 1933, as amended.
I have examined the Consultant Contracts and the Option Agreement
which accompanies said contracts. I am also familiar with the Articles of
incorporation and the By-Laws of the Company and in particular, Section
4.6 of the By-Laws.
Based upon the foregoing, it is my opinion that after the
Registration Statement shall have become effective and the shares shall
have been issued and delivered as described in the Consultant Contracts
and the documents related to it, such shares of Common Stock will be
validly issued, fully paid and non-assessable.
Consent is hereby given to the use of this Opinion as part of the
Registration Statement referred to above.
Sincerely,
Norman L. Sirak
PO. Box 7458, Canton. Ohio 44705-1535 Baycrest Or N.W., Canton, Ohio 44708
EXHIBIT 5
The agreements and attachments thereto are in the following
file named order.
"CS8 A AR" IS:
1. "CS8" MEANS CONSULTANT S-8 REGISTERATION STATEMENT;
2. "A" MEANS AGREEMENT (CONSULTING);
3. AR IS FOR ALLAN RIBBLER (THE INITIALS OF THE
CONSULTANT).
"CS8 B AR" IS:
1. "CS8" MEANS CONSULTANT S-8 REGISTERATION STATEMENT;
2. "B" MEANS THE OPTION AGREEMENT (EXHIBIT B AT TOP);
3. "AR" MEANS THE INITIAL OF THE CONSULTANT.
"CS8 C AR" IS:
1. "CS8" IS FOR CONSULTANT S-8 REGISTERATION STATEMENT:
2. "C" MEANS THE OPTION CERTIFICATE;
"AR" IS THE INITIALS OF THE CONSULTANT.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
DigiMedia USA, Inc., a Nevada
corporation with its principal place of
business located at 2454 Northeast 13th
Avenue, Fort Lauderdale, FL. 33305, acting
through its authorized representative Gene
Farmer, and hereafter referred to as
"DigiMedia USA";
- and -
Allan Ribbler, PhD with principal place of
business located in Coral Springs, Fl.,
hereafter referred to as "Consultant";
Declare as their mutual intent and purpose as
follows.
DigiMedia USA desires to retain Consultant
to perform consulting services more fully
described on Exhibit A, and Consultant agrees
to provide said services, which are more
fully described on Exhibit A and, with both
parties intending to be legally bound,
DigiMedia USA and Consultant hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Consultant will provide consulting
services as described on Exhibit A
("Services"). Following the execution of
this Consulting Services Agreement, and upon
the reasonable request of DigiMedia USA,
Consultant shall immediately provide
DigiMedia USA with Services by the employees
and/or agents of Consultant, rendered in
accord with the terms of this Agreement.
2. Consultant will provide Services in
accordance with all applicable laws and
regulations, including but not limited to,
the rules of ethical standards of the
Securities and Exchange Commission and the
National Association of Security Dealers,
Inc.
3. Individuals who perform Services
for or on behalf of Consultant for DigiMedia
USA shall be considered the agents,
consultants, contractors or employees of
Consultant. The relationship between
Consultant and DigiMedia USA is solely one of
independent contractor. Nothing herein shall
be construed or interpreted to deem the
relationship between DigiMedia USA and
Consultant as an employer-employees
relationship. Consultant and DigiMedia USA
shall each designate one or more of their
employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating
to this Agreement.
4. DigiMedia USA shall have the right
to review the qualifications of persons who
are to perform the requested services.
DigiMedia USA may reject personnel if
professional qualifications are
unsatisfactory to DigiMedia USA.
5. In consideration for the
services to be performed by Consultant,
DigiMedia USA agrees to sell to Consultant
Dr. Alan Ribbler [9,615] shares of the common
stock of DigiMedia USA, to take place
pursuant to the terms and conditions as set
forth on the Option Agreement attached hereto
as Exhibit B. Services to be performed by
Consultant under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
DigiMedia USA securities, either for
Consultant's own account or as a broker, nor
shall this Agreement and the fee paid
hereunder require Consultant to make a market
for the securities of DigiMedia USA. In
addition, consultant shall receive (a). A 4%
royalty of the gross profit from program
development sales; (b) A 4% commission of
the gross profit from consultant's marketing
sales.
For purposes of this agreement,
gross profit is defined as revenue less
reimbursement of direct costs of sales (i.e.,
training on the use of program, materials,
travel and other related delivery and
marketing expenses) and related hardware
costs (i.e., CD-I players, monitors, VCRs and
related playback equipment for the purchaser
of the sale).
6. In connection with this agreement,
Consultant and DigiMedia USA mutually agree
that they will indemnify and hold harmless
each other and such other's respective
directors, officers, employees and each
person, if any, who controls such other
entity within the meaning of Section 15 of
the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other
expenses reasonably incurred by any
Indemnified Party in connection with the
preparation for or defense of any claim,
action, or proceeding, whether or not
resulting in any liability), to which such
Indemnified Party may become subject under
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or transactions covered by this Agreement or
the performance of the services provided for
herein; provided however, that such party
will not be liable hereunder to the extent
that any loss, claim, damage or liability is
found in a final non-appealable judgment by a
court to have resulted from gross negligence
or bad faith in performing the services
described herein. This provision shall
survive termination of this Agreement.
7. The term of this Agreement shall
be for three years, commencing October 3,
1996 and continuing through to October 3,
1999.
8. (a) DigiMedia USA and
Consultant will not, unless otherwise
required by law, either during or subsequent
to the term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information
designated in writing as secret or
confidential by DigiMedia USA or by
Consultant without the written consent of the
other party; nor will either party disclose
to anyone other than Personnel of one of the
parties, or use in any way other than in the
course of the performance of this Agreement,
any information not known to the general
public or recognized as standard practice,
whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be
obligated by this Section with respect to any
information which is published or becomes
publicly available through no fault of the
party receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related to
the Services, which is considered by the
other party to be proprietary and
confidential, including but not limited to
customer, product and financial information.
The parties hereto agree to avoid the
unauthorized dissemination or publication of
such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of
a similar nature.
(c) Upon termination or
expiration of this Agreement, Consultant will
return to DigiMedia USA all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality
obligation imposed hereunder shall survive
the termination of this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be
deemed to have been given on the date
delivery is acknowledged, and shall be made
by recognized courier service or by U.S.
Mail, certified, return receipt requested, to
the address of each party set forth in the
heading of the Agreement, or to such other
address as either party may substitute by
written notice to the other party.
10. This Agreement shall be binding on,
and inure to the benefit of, the parties
hereto and their respective heirs, legal
representatives, successors or assigns.
Neither party shall assign its obligations
hereunder without the express written consent
of the other party.
11. The following Exhibits, annexed
hereto or incorporated herein are hereby made
a part of this Agreement. Exhibit (A),(B),
This Agreement constitutes the entire
Agreement and understanding between the
parties hereto and integrates all prior
negotiations, discussions and agreements
between them. No modifications of the terms
of this Agreement shall be valid unless in
writing and signed by an authorized
representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties
have affixed their signatures below and
attest to their adoption of the above terms
and the attached exhibits and expressly
acknowledge receipt of a copy of this
complete document.
Consultant
DigiMedia USA, Inc.
By:_________________________
By:_______________________
Gene Farmer, Vice-President
Dated: ______________________
Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by
Consultant shall be as follows:
1. Developing and marketing of a
series of programs focusing on "stress
management" within by not limited to the
groups of general stress management,
catastrophic and rehabilitative stress
management, and pediatric stress management.
2. Such other advisory
services as may be mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and Allan
Ribbler PhD (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Consulting Services Agreement, dated October 3,
1996, between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[9,615] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated:
Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103601 9,615 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies Allan Ribbler,
or his
registered assigns ("Option Holder") ' is the registered
owner of the above indicated number of Options (hereinafter
referred to as the "Option") expiring on ("Expiration
Date"). One (1) Option entitles the Option Holder to
purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation
("Company"), at a purchase price of One Hundred (100%)
percent of the NASD closing bid price for over-the-counter
securities as of the date vested per share of Common Stock
("Exercise Price"), commencing on October 3, 1996 and
terminating on the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the exercise form
hereon duly completed and executed with payment of the
Exercise Price at the office of the Company being 2454 NE
13th Avenue, Fort Lauderdale, FL. 33305, subject only to the
conditions set forth herein and in an Option Agreement dated
as of October 3, 1996 (the "Option Agreement") between the
Company and David Bawarsky. The Option Holder may exercise
all or any number of Options. Reference hereby is made to
the provisions on the following pages of this Option
Certificate and to the provisions of the Option Agreement,
all of which are incorporated by reference in and made a
part of this Option Certificate and shall for all purposes
have the same effect as though fully set forth at this
place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
DigiMedia USA, Inc., a Nevada
corporation with its principal place of
business located at 2454 Northeast 13th
Avenue, Fort Lauderdale, FL. 33305, acting
through its authorized representative Gene
Farmer, and hereafter referred to as
"DigiMedia USA";
- and -
Bohdan Moroz M.D., with principal place of
business located at Fort Lauderdale. Fl.,
hereafter referred to as "Consultant";
Declare as their mutual intent and purpose as
follows.
DigiMedia USA desires to retain Consultant
to perform consulting services more fully
described on Exhibit A, and Consultant agrees
to provide said services, which are more
fully described on Exhibit A and, with both
parties intending to be legally bound,
DigiMedia USA and Consultant hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Consultant will provide consulting
services as described on Exhibit A
("Services"). Following the execution of
this Consulting Services Agreement, and upon
the reasonable request of DigiMedia USA,
Consultant shall immediately provide
DigiMedia USA with Services by the employees
and/or agents of Consultant, rendered in
accord with the terms of this Agreement.
2. Consultant will provide Services in
accordance with all applicable laws and
regulations, including but not limited to,
the rules of ethical standards of the
Securities and Exchange Commission and the
National Association of Security Dealers,
Inc.
3. Individuals who perform Services
for or on behalf of Consultant for DigiMedia
USA shall be considered the agents,
consultants, contractors or employees of
Consultant. The relationship between
Consultant and DigiMedia USA is solely one of
independent contractor. Nothing herein shall
be construed or interpreted to deem the
relationship between DigiMedia USA and
Consultant as an employer-employees
relationship. Consultant and DigiMedia USA
shall each designate one or more of their
employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating
to this Agreement.
4. DigiMedia USA shall have the right
to review the qualifications of persons who
are to perform the requested services.
DigiMedia USA may reject personnel if
professional qualifications are
unsatisfactory to DigiMedia USA.
5. In consideration for the
services to be performed by Consultant,
DigiMedia USA agrees to sell to Consultant
Bohdan Moroz M.D. [120,000] shares of the
common stock of DigiMedia USA, to take place
pursuant to the terms and conditions as set
forth on the Option Agreement attached hereto
as Exhibit B. Services to be performed by
Consultant under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
DigiMedia USA securities, either for
Consultant's own account or as a broker, nor
shall this Agreement and the fee paid
hereunder require Consultant to make a market
for the securities of DigiMedia USA. In
addition, consultant shall receive
(a). A 4% royalty of the gross profit
from program development
sales;
(b) A 4% commission of the gross
profit from consultant's marketing sales.
For purposes of this agreement, gross
profit is defined as revenue less reimbursement of
direct costs of sales (i.e., training on the use
of program, materials, travel and other related
delivery and marketing expenses) and related
hardware costs (i.e., CD-I players, monitors, VCRs
and related playback equipment for the purchaser
of the sale).
6. In connection with this agreement,
Consultant and DigiMedia USA mutually agree that
they will indemnify and hold harmless each other
and such other's respective directors, officers,
employees and each person, if any, who controls
such other entity within the meaning of Section 15
of the Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934 (any and all of
whom are referred to as "Indemnified Party") from
and against any and all losses, claims, damages
and liabilities, joint or several (including all
legal or other expenses reasonably incurred by any
Indemnified Party in connection with the
preparation for or defense of any claim, action,
or proceeding, whether or not resulting in any
liability), to which such Indemnified Party may
become subject under applicable federal or state
law or otherwise caused by or arising out of, or
allegedly caused by or arising out of, this
Agreement or transactions covered by this
Agreement or the performance of the services
provided for herein; provided however, that such
party will not be liable hereunder to the extent
that any loss, claim, damage or liability is found
in a final non-appealable judgment by a court to
have resulted from gross negligence or bad faith
in performing the services described herein. This
provision shall survive termination of this
Agreement.
7. The term of this Agreement shall be
for three years, commencing on September 30, 1996
and continuing through to September 30, 1999.
This agreement shall be automatically extended
beyond the initial three (3) year period upon the
mutual consent of both parties which will be
presumed unless notice to the contrary is set
forth in writing by either party and delivered to
the other thirty (30) days prior to the end of the
initial term. In addition, either party may
terminate this agreement, at any time, with or
without cause, upon forty-five (45) days written
notice to the other party. Notwithstanding
termination of this agreement, the Company shall
remain obliged to pay Consultant for any amounts
accrued hereunder prior to the end of the term or
termination of the agreement.
8. (a) DigiMedia USA and
Consultant will not, unless otherwise required by
law, either during or subsequent to the term of
this Agreement, directly or indirectly disclose or
publish to any unauthorized person any information
designated in writing as secret or confidential by
DigiMedia USA or by Consultant without the written
consent of the other party; nor will either party
disclose to anyone other than Personnel of one of
the parties, or use in any way other than in the
course of the performance of this Agreement, any
information not known to the general public or
recognized as standard practice, whether acquired
or developed during performance of this Agreement
obtained from either party or obtained prior to
contract.
(b) Neither party shall be obligated by
this Section with respect to any information which
is published or becomes publicly available through
no fault of the party receiving such information
under this Agreement; or rightfully received from
third parties; is developed independently; or is
in their possession five (5) years after the
effective date of this Agreement. Each party is
likely to be exposed to certain business
information of the other party not related to the
Services, which is considered by the other party
to be proprietary and confidential, including but
not limited to customer, product and financial
information. The parties hereto agree to avoid
the unauthorized dissemination or publication of
such proprietary information by using the same
degree of care with regard to such information and
the same methods to prevent the publication
thereof as each employs with respect to its own
proprietary information of a similar nature.
(c) Upon termination or expiration
of this Agreement, Consultant will return to
DigiMedia USA all material, written or
descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents which
contain any such confidential information if
requested.
(d) The confidentiality obligation
imposed hereunder shall survive the termination of
this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be deemed
to have been given on the date delivery is
acknowledged, and shall be made by recognized
courier service or by U.S. Mail, certified, return
receipt requested, to the address of each party
set forth in the heading of the Agreement, or to
such other address as either party may substitute
by written notice to the other party.
10. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and
their respective heirs, legal representatives,
successors or assigns. Neither party shall assign
its obligations hereunder without the express
written consent of the other party.
11. The parties agree that ownership rights
to all and any program developed pursuant to the
terms of this agreement shall vest solely with the
company and any courseware prepared by consultant
as arthor shall be the work product of the
company.
12. The following Exhibits, annexed hereto
or incorporated herein are hereby made a part of
this Agreement. Exhibit (A). This Agreement
constitutes the entire Agreement and understanding
between the parties hereto and integrates all
prior negotiations, discussions and agreements
between them. No modifications of the terms of
this Agreement shall be valid unless in writing
and signed by an authorized representative of each
party hereto or their successors.
IN WITNESS WHEREOF, the parties
have affixed their signatures below and
attest to their adoption of the above terms
and the attached exhibits and expressly
acknowledge receipt of a copy of this
complete document.
Consultant DigiMedia USA, Inc.
By:_________________________ By:____________________
Gene Farmer, Vice President
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by
Consultant shall be as follows:
1. Developing and marketing of a series of programs
focusing on "stress management" within by not limited to the
groups of general stress management, catastrophic and
rehabilitative stress management.
2. Such other advisory
services as may be mutually agreed upon.
For the purposes of this agreement
developing shall include supplementing
production costs of $5,000 with additional
funds up to $10,000 wherein costs above the
initial $5,000 shall be approved by
Consultant in advance of incurrence.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and Bohdan
Moroz MD (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Consulting Services Agreement, dated October 3,
1996, between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[120,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated:
Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103602 120,000 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies Bohdan Moroz,
MD, or his
registered assigns ("Option Holder") ' is the registered
owner of the above indicated number of Options (hereinafter
referred to as the "Option") expiring on ("Expiration
Date"). One (1) Option entitles the Option Holder to
purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation
("Company"), at a purchase price of One Hundred (100%)
percent of the NASD closing bid price for over-the-counter
securities as of the date vested per share of Common Stock
("Exercise Price"), commencing on October 3, 1996 and
terminating on the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the exercise form
hereon duly completed and executed with payment of the
Exercise Price at the office of the Company being 2454 NE
13th Avenue, Fort Lauderdale, FL. 33305, subject only to the
conditions set forth herein and in an Option Agreement dated
as of October 3, 1996 (the "Option Agreement") between the
Company and David Bawarsky. The Option Holder may exercise
all or any number of Options. Reference hereby is made to
the provisions on the following pages of this Option
Certificate and to the provisions of the Option Agreement,
all of which are incorporated by reference in and made a
part of this Option Certificate and shall for all purposes
have the same effect as though fully set forth at this
place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
DigiMedia USA, Inc., a Nevada
corporation with its principal place of
business located at 2454 Northeast 13th
Avenue, Fort Lauderdale, FL. 33305, acting
through its authorized representative Gene
Farmer, and hereafter referred to as
"DigiMedia USA";
- and -
David Bawarsky with principal place of
business located at 2121 West Oakland Park
Blvd., Oakland Park. Fl., hereafter referred
to as "Consultant";
Declare as their mutual intent and purpose as
follows.
DigiMedia USA desires to retain Consultant
to perform consulting services more fully
described on Exhibit A, and Consultant agrees
to provide said services, which are more
fully described on Exhibit A and, with both
parties intending to be legally bound,
DigiMedia USA and Consultant hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Consultant will provide consulting
services as described on Exhibit A
("Services"). Following the execution of
this Consulting Services Agreement, and upon
the reasonable request of DigiMedia USA,
Consultant shall immediately provide
DigiMedia USA with Services by the employees
and/or agents of Consultant, rendered in
accord with the terms of this Agreement.
2. Consultant will provide Services in
accordance with all applicable laws and
regulations, including but not limited to,
the rules of ethical standards of the
Securities and Exchange Commission and the
National Association of Security Dealers,
Inc.
3. Individuals who perform Services
for or on behalf of Consultant for DigiMedia
USA shall be considered the agents,
consultants, contractors or employees of
Consultant. The relationship between
Consultant and DigiMedia USA is solely one of
independent contractor. Nothing herein shall
be construed or interpreted to deem the
relationship between DigiMedia USA and
Consultant as an employer-employees
relationship. Consultant and DigiMedia USA
shall each designate one or more of their
employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating
to this Agreement.
4. DigiMedia USA shall have the right
to review the qualifications of persons who
are to perform the requested services.
DigiMedia USA may reject personnel if
professional qualifications are
unsatisfactory to DigiMedia USA.
5. In consideration for the services
to be performed by Consultant, DigiMedia USA
agrees to sell to Consultant David Bawarsky
[250,000] shares of the common stock of
DigiMedia USA, to take place pursuant to the
terms and conditions as set forth on the
Option Agreement attached hereto as Exhibit
B. Services to be performed by Consultant
under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
DigiMedia USA securities, either for
Consultant's own account or as a broker, nor
shall this Agreement and the fee paid
hereunder require Consultant to make a market
for the securities of DigiMedia USA. In
addition, consultant shall receive [75,000]
shares of restricted common stock.
6. In connection with this agreement,
Consultant and DigiMedia USA mutually agree
that they will indemnify and hold harmless
each other and such other's respective
directors, officers, employees and each
person, if any, who controls such other
entity within the meaning of Section 15 of
the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other
expenses reasonably incurred by any
Indemnified Party in connection with the
preparation for or defense of any claim,
action, or proceeding, whether or not
resulting in any liability), to which such
Indemnified Party may become subject under
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or transactions covered by this Agreement or
the performance of the services provided for
herein; provided however, that such party
will not be liable hereunder to the extent
that any loss, claim, damage or liability is
found in a final non-appealable judgment by a
court to have resulted from gross negligence
or bad faith in performing the services
described herein. This provision shall
survive termination of this Agreement.
7. The term of this Agreement shall
be for three years, commencing on October 3,
1996 and continuing through to October 3,
1999.
8. (a) DigiMedia USA and
Consultant will not, unless otherwise
required by law, either during or subsequent
to the term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information
designated in writing as secret or
confidential by DigiMedia USA or by
Consultant without the written consent of the
other party; nor will either party disclose
to anyone other than Personnel of one of the
parties, or use in any way other than in the
course of the performance of this Agreement,
any information not known to the general
public or recognized as standard practice,
whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be
obligated by this Section with respect to any
information which is published or becomes
publicly available through no fault of the
party receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related to
the Services, which is considered by the
other party to be proprietary and
confidential, including but not limited to
customer, product and financial information.
The parties hereto agree to avoid the
unauthorized dissemination or publication of
such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of
a similar nature.
(c) Upon termination or
expiration of this Agreement, Consultant will
return to DigiMedia USA all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality
obligation imposed hereunder shall survive
the termination of this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be
deemed to have been given on the date
delivery is acknowledged, and shall be made
by recognized courier service or by U.S.
Mail, certified, return receipt requested, to
the address of each party set forth in the
heading of the Agreement, or to such other
address as either party may substitute by
written notice to the other party.
10. This Agreement shall be binding on,
and inure to the benefit of, the parties
hereto and their respective heirs, legal
representatives, successors or assigns.
Neither party shall assign its obligations
hereunder without the express written consent
of the other party.
11. The following Exhibits, annexed
hereto or incorporated herein are hereby made
a part of this Agreement. Exhibit (A),(B),
This Agreement constitutes the entire
Agreement and understanding between the
parties hereto and integrates all prior
negotiations, discussions and agreements
between them. No modifications of the terms
of this Agreement shall be valid unless in
writing and signed by an authorized
representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties
have affixed their signatures below and
attest to their adoption of the above terms
and the attached exhibits and expressly
acknowledge receipt of a copy of this
complete document.
Consultant
DigiMedia USA, Inc.
By:_________________________ By:________________________
Gene Farmer, Vice-President
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by
Consultant shall be as follows:
1. To develop, at no cost to DigiMedia USA. a
corporate promotional program for National Data Corp. (Cost
not to exceed $5,000.00).
2. To provide production of DigiMedia USA's programs
at favorable rates.
3. To be the exclusive production company for
DigiMedia USA's Cdi programs for the duration of this
agreement. This provision may be canceled upon thirty (30)
days notice with said cancellation not affecting any other
provision of the agreement.
4. Such other advisory services
as may be mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and David
Bawarsky (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Consulting Services Agreement, dated September
30, 1996, between the Company and the Registered Holder,
which Consulting Services Agreement provides for the
issuance of options to purchase common stock of the Company
on terms and conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[250,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $1.00, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on September
27, 1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on September 30, 1998
(the "Termination Date"). Each Option shall be deemed to
have been exercised immediately prior to the close of
business on the date (the "Exercise Date") of the surrender
for exercise of the Option Certificate. The exercise form,
attached hereto as Exhibit B shall be executed by the
Registered Holder (or Registered Holders) or his attorney
duly authorized in writing and will be delivered to the
Company at its corporate office together with payment to the
order of the Company in cash or by official bank or
certified check of an amount equal to the aggregate Exercise
Price, in lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated:
Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103603 250,000 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies David Bawarsky,
or his
registered assigns ("Option Holder") ' is the registered
owner of the above indicated number of Options (hereinafter
referred to as the "Option") expiring on ("Expiration
Date"). One (1) Option entitles the Option Holder to
purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation
("Company"), at a purchase price of One Hundred (100%)
percent of the NASD closing bid price for over-the-counter
securities as of the date vested per share of Common Stock
("Exercise Price"), commencing on October 3, 1996 and
terminating on the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the exercise form
hereon duly completed and executed with payment of the
Exercise Price at the office of the Company being 2454 NE
13th Avenue, Fort Lauderdale, FL. 33305, subject only to the
conditions set forth herein and in an Option Agreement dated
as of October 3, 1996 (the "Option Agreement") between the
Company and David Bawarsky. The Option Holder may exercise
all or any number of Options. Reference hereby is made to
the provisions on the following pages of this Option
Certificate and to the provisions of the Option Agreement,
all of which are incorporated by reference in and made a
part of this Option Certificate and shall for all purposes
have the same effect as though fully set forth at this
place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
DigiMedia USA, Inc., a Nevada
corporation with its principal place of
business located at 2454 Northeast 13th
Avenue, Fort Lauderdale, FL. 33305, acting
through its authorized representative Gene
Farmer, and hereafter referred to as
"DigiMedia USA";
- and -
Douglas Stepelton with principal place of
business located at Fort Lauderdale. Fl.,
hereafter referred to as "Consultant";
Declare as their mutual intent and purpose as
follows.
DigiMedia USA desires to retain Consultant
to perform consulting services more fully
described on Exhibit A, and Consultant agrees
to provide said services, which are more
fully described on Exhibit A and, with both
parties intending to be legally bound,
DigiMedia USA and Consultant hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Consultant will provide consulting
services as described on Exhibit A
("Services"). Following the execution of
this Consulting Services Agreement, and upon
the reasonable request of DigiMedia USA,
Consultant shall immediately provide
DigiMedia USA with Services by the employees
and/or agents of Consultant, rendered in
accord with the terms of this Agreement.
2. Consultant will provide Services in
accordance with all applicable laws and
regulations, including but not limited to,
the rules of ethical standards of the
Securities and Exchange Commission and the
National Association of Security Dealers,
Inc.
3. Individuals who perform Services
for or on behalf of Consultant for DigiMedia
USA shall be considered the agents,
consultants, contractors or employees of
Consultant. The relationship between
Consultant and DigiMedia USA is solely one of
independent contractor. Nothing herein shall
be construed or interpreted to deem the
relationship between DigiMedia USA and
Consultant as an employer-employees
relationship. Consultant and DigiMedia USA
shall each designate one or more of their
employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating
to this Agreement.
4. DigiMedia USA shall have the right
to review the qualifications of persons who
are to perform the requested services.
DigiMedia USA may reject personnel if
professional qualifications are
unsatisfactory to DigiMedia USA.
5. In consideration for the services
to be performed by Consultant, DigiMedia USA
agrees to sell to Consultant Douglas
Stepelton [100,000] shares of the common
stock of DigiMedia USA, to take place
pursuant to the terms and conditions as set
forth on the Option Agreement attached hereto
as Exhibit B. Services to be performed by
Consultant under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
DigiMedia USA securities, either for
Consultant's own account or as a broker, nor
shall this Agreement and the fee paid
hereunder require Consultant to make a market
for the securities of DigiMedia USA. In
addition, consultant shall receive a 6%
royalty on the net proceeds from sales
relating to the stress management series
6. In connection with this agreement,
Consultant and DigiMedia USA mutually agree
that they will indemnify and hold harmless
each other and such other's respective
directors, officers, employees and each
person, if any, who controls such other
entity within the meaning of Section 15 of
the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other
expenses reasonably incurred by any
Indemnified Party in connection with the
preparation for or defense of any claim,
action, or proceeding, whether or not
resulting in any liability), to which such
Indemnified Party may become subject under
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or transactions covered by this Agreement or
the performance of the services provided for
herein; provided however, that such party
will not be liable hereunder to the extent
that any loss, claim, damage or liability is
found in a final non-appealable judgment by a
court to have resulted from gross negligence
or bad faith in performing the services
described herein. This provision shall
survive termination of this Agreement.
7. The term of this Agreement shall
be for three years, commencing on September
30, 1996 and continuing through to September
30, 1999.
8. (a) DigiMedia USA and
Consultant will not, unless otherwise
required by law, either during or subsequent
to the term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information
designated in writing as secret or
confidential by DigiMedia USA or by
Consultant without the written consent of the
other party; nor will either party disclose
to anyone other than Personnel of one of the
parties, or use in any way other than in the
course of the performance of this Agreement,
any information not known to the general
public or recognized as standard practice,
whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be
obligated by this Section with respect to any
information which is published or becomes
publicly available through no fault of the
party receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related to
the Services, which is considered by the
other party to be proprietary and
confidential, including but not limited to
customer, product and financial information.
The parties hereto agree to avoid the
unauthorized dissemination or publication of
such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of
a similar nature.
(c) Upon termination or
expiration of this Agreement, Consultant will
return to DigiMedia USA all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality
obligation imposed hereunder shall survive
the termination of this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be
deemed to have been given on the date
delivery is acknowledged, and shall be made
by recognized courier service or by U.S.
Mail, certified, return receipt requested, to
the address of each party set forth in the
heading of the Agreement, or to such other
address as either party may substitute by
written notice to the other party.
10. This Agreement shall be binding on,
and inure to the benefit of, the parties
hereto and their respective heirs, legal
representatives, successors or assigns.
Neither party shall assign its obligations
hereunder without the express written consent
of the other party.
11. The following Exhibits, annexed
hereto or incorporated herein are hereby made
a part of this Agreement. Exhibit (A),(B),
This Agreement constitutes the entire
Agreement and understanding between the
parties hereto and integrates all prior
negotiations, discussions and agreements
between them. No modifications of the terms
of this Agreement shall be valid unless in
writing and signed by an authorized
representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties
have affixed their signatures below and
attest to their adoption of the above terms
and the attached exhibits and expressly
acknowledge receipt of a copy of this
complete document.
Consultant
DigiMedia USA, Inc.
By:_________________________ By:________________________
Gene Farmer, Vice-President
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by
Consultant shall be as follows:
1. Advice concerning management,
marketing and operational and consulting
strategic planning, corporate organization
and structure, financial matters in
connection with expansion of services,
acquisitions, mergers, governmental relations
and other similar business concerns.
2. Assist and monitor the
services provided by the Company's
advertising firm and public relations firm
and other professionals hired by the Company.
3. Such other advisory services
as may be mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and Douglas
Stepelton (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Consulting Services Agreement, dated October 3,
1996, between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[100,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103604 100,000 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies Douglas
Stepelton, or his
registered assigns ("Option Holder") ' is the registered
owner of the above indicated number of Options (hereinafter
referred to as the "Option") expiring on ("Expiration
Date"). One (1) Option entitles the Option Holder to
purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation
("Company"), at a purchase price of One Hundred (100%)
percent of the NASD closing bid price for over-the-counter
securities as of the date vested per share of Common Stock
("Exercise Price"), commencing on October 3, 1996 and
terminating on the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the exercise form
hereon duly completed and executed with payment of the
Exercise Price at the office of the Company being 2454 NE
13th Avenue, Fort Lauderdale, FL. 33305, subject only to the
conditions set forth herein and in an Option Agreement dated
as of October 3, 1996 (the "Option Agreement") between the
Company and David Bawarsky. The Option Holder may exercise
all or any number of Options. Reference hereby is made to
the provisions on the following pages of this Option
Certificate and to the provisions of the Option Agreement,
all of which are incorporated by reference in and made a
part of this Option Certificate and shall for all purposes
have the same effect as though fully set forth at this
place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
DigiMedia USA, Inc., a Nevada
corporation with its principal place of
business located at 2454 Northeast 13th
Avenue, Fort Lauderdale, FL. 33305, acting
through its authorized representative Gene
Farmer, and hereafter referred to as
"DigiMedia USA";
- and -
Jim Brooks, a person with principal place of
residence located at Pompano Beach, FL.,
hereafter referred to as "Consultant";
Declare as their mutual intent and purpose as
follows.
DigiMedia USA desires to retain Consultant
to perform consulting services more fully
described on Exhibit A, and Consultant agrees
to provide said services, which are more
fully described on Exhibit A and, with both
parties intending to be legally bound,
DigiMedia USA and Consultant hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Consultant will provide consulting
services as described on Exhibit A
("Services"). Following the execution of
this Consulting Services Agreement, and upon
the reasonable request of DigiMedia USA,
Consultant shall immediately provide
DigiMedia USA with Services by the employees
and/or agents of Consultant, rendered in
accord with the terms of this Agreement.
2. Consultant will provide Services in
accordance with all applicable laws and
regulations, including but not limited to,
the rules of ethical standards of the
Securities and Exchange Commission and the
National Association of Security Dealers,
Inc.
3. Individuals who perform Services
for or on behalf of Consultant for DigiMedia
USA shall be considered the agents,
consultants, contractors or employees of
Consultant. The relationship between
Consultant and DigiMedia USA is solely one of
independent contractor. Nothing herein shall
be construed or interpreted to deem the
relationship between DigiMedia USA and
Consultant as an employer-employees
relationship. Consultant and DigiMedia USA
shall each designate one or more of their
employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating
to this Agreement.
4. The Advocay Group shall select
personnel to perform Services for DigiMedia
USA who are qualified to perform the
requested services. DigiMedia USA may reject
personnel if professional qualifications are
unsatisfactory to DigiMedia USA.
5. In consideration for the services
to be performed by Consultant, DigiMedia USA
agrees to sell to Consultant Jim Brooks
[50,000] shares of the common stock of
DigiMedia USA, to take place pursuant to the
terms and conditions as set forth on the
Option Agreement attached hereto as Exhibit
B. Services to be performed by Consultant
under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
DigiMedia USA securities, either for
Consultant's own account or as a broker, nor
shall this Agreement and the fee paid
hereunder require Consultant to make a market
for the securities of DigiMedia USA.
6. In connection with this agreement,
Consultant and DigiMedia USA mutually agree
that they will indemnify and hold harmless
each other and such other's respective
directors, officers, employees and each
person, if any, who controls such other
entity within the meaning of Section 15 of
the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other
expenses reasonably incurred by any
Indemnified Party in connection with the
preparation for or defense of any claim,
action, or proceeding, whether or not
resulting in any liability), to which such
Indemnified Party may become subject under
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or transactions covered by this Agreement or
the performance of the services provided for
herein; provided however, that such party
will not be liable hereunder to the extent
that any loss, claim, damage or liability is
found in a final non-appealable judgment by a
court to have resulted from gross negligence
or bad faith in performing the services
described herein. This provision shall
survive termination of this Agreement.
7. The term of this Agreement shall
be for three years, commencing on October 3,
1996 and continuing through to October 3,
1999.
8. (a) DigiMedia USA and
Consultant will not, unless otherwise
required by law, either during or subsequent
to the term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information
designated in writing as secret or
confidential by DigiMedia USA or by
Consultant without the written consent of the
other party; nor will either party disclose
to anyone other than Personnel of one of the
parties, or use in any way other than in the
course of the performance of this Agreement,
any information not known to the general
public or recognized as standard practice,
whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be
obligated by this Section with respect to any
information which is published or becomes
publicly available through no fault of the
party receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related to
the Services, which is considered by the
other party to be proprietary and
confidential, including but not limited to
customer, product and financial information.
The parties hereto agree to avoid the
unauthorized dissemination or publication of
such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of
a similar nature.
(c) Upon termination or
expiration of this Agreement, Consultant will
return to DigiMedia USA all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality
obligation imposed hereunder shall survive
the termination of this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be
deemed to have been given on the date
delivery is acknowledged, and shall be made
by recognized courier service or by U.S.
Mail, certified, return receipt requested, to
the address of each party set forth in the
heading of the Agreement, or to such other
address as either party may substitute by
written notice to the other party.
10. This Agreement shall be binding on,
and inure to the benefit of, the parties
hereto and their respective heirs, legal
representatives, successors or assigns.
Neither party shall assign its obligations
hereunder without the express written consent
of the other party.
11. The following Exhibits, annexed
hereto or incorporated herein are hereby made
a part of this Agreement. Exhibit (A),(B),
This Agreement constitutes the entire
Agreement and understanding between the
parties hereto and integrates all prior
negotiations, discussions and agreements
between them. No modifications of the terms
of this Agreement shall be valid unless in
writing and signed by an authorized
representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties
have affixed their signatures below and
attest to their adoption of the above terms
and the attached exhibits and expressly
acknowledge receipt of a copy of this
complete document.
Consultant
DigiMedia USA, Inc.
By:______________________________ By:___________________________
Gene Farmer, Vice-President
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by
Consultant shall be as follows:
1. Advice concerning management,
marketing and operational and consulting
strategic planning, corporate organization
and structure, financial matters in
connection with expansion of services,
acquisitions, mergers, governmental relations
and other similar business concerns.
2. Assist and monitor the
services provided by the Company's
advertising firm and public relations firm
and other professionals hired by the Company.
3. Such other advisory services
as may be mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and Jim Brooks
(the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Consulting Services Agreement, dated October 3,
1996, between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[50,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103605 50,000 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies Jim Brooks, or
his registered
assigns ("Option Holder") ' is the registered owner of the
above indicated number of Options (hereinafter referred to
as the "Option") expiring on ("Expiration Date"). One (1)
Option entitles the Option Holder to purchase one (1) share
of common stock, $.000667 par value ("Share"), from
DigiMedia USA, Inc., a Nevada corporation ("Company"), at a
purchase price of One Hundred (100%) percent of the NASD
closing bid price for over-the-counter securities as of the
date vested per share of Common Stock ("Exercise Price"),
commencing on October 3, 1996 and terminating on the
Expiration Date ("Exercise Period"), upon surrender of this
Option Certificate with the exercise form hereon duly
completed and executed with payment of the Exercise Price at
the office of the Company being 2454 NE 13th Avenue, Fort
Lauderdale, FL. 33305, subject only to the conditions set
forth herein and in an Option Agreement dated as of October
3, 1996 (the "Option Agreement") between the Company and
David Bawarsky. The Option Holder may exercise all or any
number of Options. Reference hereby is made to the
provisions on the following pages of this Option Certificate
and to the provisions of the Option Agreement, all of which
are incorporated by reference in and made a part of this
Option Certificate and shall for all purposes have the same
effect as though fully set forth at this place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
CONSULTING SERVICES AGREEMENT
This Agreement, executed on the date (or
dates) set forth below, by and between:
DigiMedia USA, Inc., a Nevada
corporation with its principal place of
business located at 2454 Northeast 13th
Avenue, Fort Lauderdale, FL. 33305, acting
through its authorized representative Gene
Farmer, and hereafter referred to as
"DigiMedia USA";
- and -
TransMedia Consultants, Inc., with principal
place of business located at Pompano Beach,
FL., hereafter referred to as "Consultant";
Declare as their mutual intent and purpose as
follows.
DigiMedia USA desires to retain Consultant
to perform consulting services more fully
described on Exhibit A, and Consultant agrees
to provide said services, which are more
fully described on Exhibit A and, with both
parties intending to be legally bound,
DigiMedia USA and Consultant hereby agree to
adopt this Consulting Services Agreement,
pursuant to the terms and conditions set
forth below.
1. Consultant will provide consulting
services as described on Exhibit A
("Services"). Following the execution of
this Consulting Services Agreement, and upon
the reasonable request of DigiMedia USA,
Consultant shall immediately provide
DigiMedia USA with Services by the employees
and/or agents of Consultant, rendered in
accord with the terms of this Agreement.
2. Consultant will provide Services in
accordance with all applicable laws and
regulations, including but not limited to,
the rules of ethical standards of the
Securities and Exchange Commission and the
National Association of Security Dealers,
Inc.
3. Individuals who perform Services
for or on behalf of Consultant for DigiMedia
USA shall be considered the agents,
consultants, contractors or employees of
Consultant. The relationship between
Consultant and DigiMedia USA is solely one of
independent contractor. Nothing herein shall
be construed or interpreted to deem the
relationship between DigiMedia USA and
Consultant as an employer-employees
relationship. Consultant and DigiMedia USA
shall each designate one or more of their
employees as primary contacts
(representatives), who shall be designated at
the end of this Agreement, and authorized to
act on their behalf in all matters relating
to this Agreement.
4. The Advocay Group shall select
personnel to perform Services for DigiMedia
USA who are qualified to perform the
requested services. DigiMedia USA may reject
personnel if professional qualifications are
unsatisfactory to DigiMedia USA.
5. In consideration for the services
to be performed by Consultant, DigiMedia USA
agrees to sell to Consultant [] shares of the
common stock of DigiMedia USA, to take place
pursuant to the terms and conditions as set
forth on the Option Agreement attached hereto
as Exhibit B. Services to be performed by
Consultant under this Agreement shall be in
consideration of the compensation described
above, which shall in no way be construed as
being paid for the purchase or sale of any of
DigiMedia USA securities, either for
Consultant's own account or as a broker, nor
shall this Agreement and the fee paid
hereunder require Consultant to make a market
for the securities of DigiMedia USA.
6. In connection with this agreement,
Consultant and DigiMedia USA mutually agree
that they will indemnify and hold harmless
each other and such other's respective
directors, officers, employees and each
person, if any, who controls such other
entity within the meaning of Section 15 of
the Securities Act of 1933 or Section 20 of
the Securities Exchange Act of 1934 (any and
all of whom are referred to as "Indemnified
Party") from and against any and all losses,
claims, damages and liabilities, joint or
several (including all legal or other
expenses reasonably incurred by any
Indemnified Party in connection with the
preparation for or defense of any claim,
action, or proceeding, whether or not
resulting in any liability), to which such
Indemnified Party may become subject under
applicable federal or state law or otherwise
caused by or arising out of, or allegedly
caused by or arising out of, this Agreement
or transactions covered by this Agreement or
the performance of the services provided for
herein; provided however, that such party
will not be liable hereunder to the extent
that any loss, claim, damage or liability is
found in a final non-appealable judgment by a
court to have resulted from gross negligence
or bad faith in performing the services
described herein. This provision shall
survive termination of this Agreement.
7. The term of this Agreement shall
be for three years, commencing on September
27, 1996 and continuing through to September
27, 1999.
8. (a) DigiMedia USA and
Consultant will not, unless otherwise
required by law, either during or subsequent
to the term of this Agreement, directly or
indirectly disclose or publish to any
unauthorized person any information
designated in writing as secret or
confidential by DigiMedia USA or by
Consultant without the written consent of the
other party; nor will either party disclose
to anyone other than Personnel of one of the
parties, or use in any way other than in the
course of the performance of this Agreement,
any information not known to the general
public or recognized as standard practice,
whether acquired or developed during
performance of this Agreement obtained from
either party or obtained prior to contract.
(b) Neither party shall be
obligated by this Section with respect to any
information which is published or becomes
publicly available through no fault of the
party receiving such information under this
Agreement; or rightfully received from third
parties; is developed independently; or is in
their possession five (5) years after the
effective date of this Agreement. Each party
is likely to be exposed to certain business
information of the other party not related to
the Services, which is considered by the
other party to be proprietary and
confidential, including but not limited to
customer, product and financial information.
The parties hereto agree to avoid the
unauthorized dissemination or publication of
such proprietary information by using the
same degree of care with regard to such
information and the same methods to prevent
the publication thereof as each employs with
respect to its own proprietary information of
a similar nature.
(c) Upon termination or
expiration of this Agreement, Consultant will
return to DigiMedia USA all material, written
or descriptive, including, but not limited to
drawings, program listings, flowcharts,
descriptions or other papers or documents
which contain any such confidential
information if requested.
(d) The confidentiality
obligation imposed hereunder shall survive
the termination of this Agreement.
9. All notices, demands, payments and
other communications required or permitted
hereunder shall be in writing and shall be
deemed to have been given on the date
delivery is acknowledged, and shall be made
by recognized courier service or by U.S.
Mail, certified, return receipt requested, to
the address of each party set forth in the
heading of the Agreement, or to such other
address as either party may substitute by
written notice to the other party.
10. This Agreement shall be binding on,
and inure to the benefit of, the parties
hereto and their respective heirs, legal
representatives, successors or assigns.
Neither party shall assign its obligations
hereunder without the express written consent
of the other party.
11. The following Exhibits, annexed
hereto or incorporated herein are hereby made
a part of this Agreement. Exhibit (A),(B),
This Agreement constitutes the entire
Agreement and understanding between the
parties hereto and integrates all prior
negotiations, discussions and agreements
between them. No modifications of the terms
of this Agreement shall be valid unless in
writing and signed by an authorized
representative of each party hereto or their
successors.
IN WITNESS WHEREOF, the parties
have affixed their signatures below and
attest to their adoption of the above terms
and the attached exhibits and expressly
acknowledge receipt of a copy of this
complete document.
Consultant
DigiMedia USA, Inc.
By:______________________________ By:___________________________
Gene Farmer, Vice-President
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by
Consultant shall be as follows:
1. Advice concerning management,
marketing and operational and consulting
strategic planning, corporate organization
and structure, financial matters in
connection with expansion of services,
acquisitions, mergers, governmental relations
and other similar business concerns.
2. Assist and monitor the
services provided by the Company's
advertising firm and public relations firm
and other professionals hired by the Company.
3. Such other advisory services
as may be mutually agreed upon.
EXHIBIT B
OPTION AGREEMENT
THE REGISTERED HOLDER OF THIS OPTION BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, ASSIGN, PLEDGE,
HYPOTHECATE OR OTHERWISE TRANSFER THIS OPTION EXCEPT AS
HEREIN PROVIDED. THIS OPTION HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1939 AS AMENDED (THE "ACT") OR UNDER
THE SECURITIES LAWS OF ANY STATE:
This Option Agreement (the "Agreement") is dated as of ,
between DIGIMEDIA USA, INC. (the "Company"), and TransMedia
Consultants, Inc. (the "Registered Holder").
WHEREAS, the Company and the Registered Holder are
parties to a Consulting Services Agreement, dated October 3,
1996, between the Company and the Registered Holder, which
Consulting Services Agreement provides for the issuance of
options to purchase common stock of the Company on terms and
conditions as more fully set forth herein: and
WHEREAS, the Company desires to provide for issuance of
option certificates (the "Option Certificates") representing
[50,000] Options as compensation under the aforementioned
Consulting Services Agreement on such terms and conditions
as are more fully set forth herein: and
NOW, THEREFORE, in consideration of the promises and
mutual agreements hereinafter set forth, it is agreed that:
1. Options/Option Certificates. Each Option shall entitle
the holder ("the Registered Holder") or in the aggregate,
the " Registered Holders ") in whose name the Option
Certificate shall be registered on the books maintained by
the Company to purchase one (1) share of the Company's
$0.00067 par value Common Stock (the Option Share or Option
Shares) on exercise thereof, subject to modification and
adjustment as provided in Section 7. The Option Certificate
representing the right to purchase Option Shares shall he
executed by the Company's Chief Executive Officer or
President and attested to by the Company's Secretary and
delivered to the Registered Holder upon execution of this
Agreement.
Subject to the provisions of Sections 3, 5 and 6, the
Company shall deliver Option Certificates in required whole
number denominations to the Registered Holder (or Registered
Holders) in connection with any transfer or exchange
permitted under this Agreement. Except as provided in
Section 6 hereof, no Option Certificates shall be issued
except: (i) Option Certificates initially issued hereunder;
(ii) Option Certificates issued on or after the initial
issuance date, upon the exercise of any Options, to evidence
the unexercised Options held by the exercising Registered
Holder; or (iii) Option Certificates issued after the
initial issuance date upon any transfer or exchange of
Option Certificates or replacement of lost or mutilated
Option Certificates.
2. Form and Execution of Option Certificates. The
Option Certificates shall be substantially in the form
attached hereto as Exhibit A (the "Option Certificate").
The Option Certificates shall be dated as of the date of
their issuance, whether on initial issuance, transfer or
exchange or in lieu of mutilated, lost, stolen or destroyed
Option Certificates. The Option Certificates shall be
originally signed by the Company's Chief Executive Officer
or President, attested to by the Company's Secretary and
embossed with the Company's seal and shall not be valid for
any purpose unless so originally signed and embossed.
3. Exercise. Subject to the provisions of Sections 4
and 7, the Options when evidenced by a Option Certificate
and such other documents as the Company may require, may be
exercised at a price (the "Exercise Price) of $.468, which
is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on October 3,
1996 (the "Option Exercise Price"). Each Option may be
exercised in whole or in part at any time during the period
commencing with the date vested (as provided in the
Agreement the "Initial Exercise Date") and terminating at
5:00 p.m. Fort Lauderdale, FL. time on October 3, 1998 (the
"Termination Date"). Each Option shall be deemed to have
been exercised immediately prior to the close of business on
the date (the "Exercise Date") of the surrender for exercise
of the Option Certificate. The exercise form, attached
hereto as Exhibit B shall be executed by the Registered
Holder (or Registered Holders) or his attorney duly
authorized in writing and will be delivered to the Company
at its corporate office together with payment to the order
of the Company in cash or by official bank or certified
check of an amount equal to the aggregate Exercise Price, in
lawful money of the United States of America.
Unless Option Shares may not be issued as provided herein,
the person entitled to receive the number of Option Shares
deliverable on such exercise shall be treated for all
purposes as the holder of such Option Shares as of the close
of business on the Exercise Date. In addition, the Company
shall also, at such time, verify that all of the conditions
precedent to the issuance of Option Shares, set forth in
Section 4, have been satisfied as of the Exercise Date. If
any one of the conditions precedent set forth in Section 4
are not satisfied as of the Exercise Date, the Company shall
return the Option Certificate and pertinent Exercise Price
payment to the exercising Registered Holder or may hold the
same until all such conditions have been satisfied. The
Company shall not be obligated to issue any fractional share
interests in Option Shares issuable or deliverable on the
exercise of any Option or scrip or cash therefore and such
fractional shares shall be of no value whatsoever. If more
than one Option shall be exercised at one time by the same
Registered Holder, the number of full Option Shares which
shall be issuable on exercise thereof shall be computed on
the basis of the aggregate number of full Option Shares
issuable on such exercise.
Once the Company has determined that the funds are
determined to be collected, the Company shall notify its
common stock transfer agent who shall cause a common stock
share certificate representing the exercised Options to be
issued. The Company may deem and treat the Registered
Holder of the Options at any time as the absolute owner
thereof for all purposes, and the Company shall not be
affected by any notice to the contrary. The Options shall
not entitle the holder thereof to any of the rights of
shareholders or to any dividend declared on the Company's
Common Stock or Option unless the holder shall have
exercised the Options and purchased the Option Shares prior
to the record date fixed by the Board of Directors of the
Company for the determination of holders of Common Stock
entitled to such dividend or other right.
4. Reservation of Shares and Payment of Taxes. The
Company covenants that it will at all times reserve and have
available from its authorized Common Stock such number of
shares as shall then be issuable on the exercise of all
outstanding Options. The Company covenants that all Option
Shares which shall be so issuable shall be duly and validly
issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to such issue.
The Registered Holder(s) shall pay all documentary, stamp or
similar taxes and other governmental charges that may be
imposed with respect to the issuance of the Options, or the
issuance, transfer or delivery of the Options or any Option
Shares on exercise of the Options. In the event the Option
Shares are to be delivered in the name other than the name
of the Registered Holder of the Option Certificate, no such
delivery shall he made unless the person requesting the same
has paid to the Company the amount of any such taxes or
charges incident thereto.
5. Registration of Transfer. The Option Certificates
may be transferred in whole or in part as provided for
herein. Option Certificates to be transferred shall be
surrendered to the Company at its corporate office. The
Company shall execute, issue and deliver in exchange
therefor the Option Certificate or Certificates which the
holder making the transfer shall be entitled to receive.
The Company shall keep transfer books at its corporate
office which shall register Option Certificates and the
transfer thereof. On due presentment for registration of
transfer of any Option Certificate at such office, the
Company shall execute and the Company shall issue and
deliver to the transferee or transferees a new Option
Certificate or Certificates representing an equal aggregate
number of Options. All Option Certificates presented for
registration of transfer or exercise shall be duly endorsed
or be accompanied by a written instrument or instruments or
transferred in a form satisfactory to the Company and the
Company's counsel. The Company may require payment of a sum
sufficient to cover any tax or other government charge that
may be imposed in connection therewith.
All Option Certificates so surrendered, or surrendered for
exercise or for exchange in case of mutilated Option
Certificates shall be promptly canceled by the Company.
Prior to due presentment for registration of transfer
thereof, the Company may treat the Registered Holder(s) of
any Option Certificate as the absolute owner thereof
(notwithstanding any notations of ownership or writing
thereon made by anyone other than the Company), and the
parties hereto shall not be affected by any notice to the
contrary.
6. Loss or Mutilation. On receipt by the Company of
evidence satisfactory as to the ownership of the loss,
theft, destruction or mutilation of any Option Certificate,
the Company shall execute and deliver in lieu thereof, a new
Option Certificate representing an equal aggregate number of
Options. In the case of loss, theft or destruction of any
Option Certificates, the individual requesting issuance of a
new Option Certificate shall be required to indemnify the
Company in an amount satisfactory to the Company. In the
event an Option Certificate is mutilated, such Certificate
shall be surrendered and canceled by the Company prior to
delivery of a new Option Certificate. Applicants for a new
Option Certificate shall also comply with such other
regulations and pay such other reasonable charges as the
Company may prescribe.
7. Adjustment of Exercise Price and Shares. After
each adjustment of the Exercise Price pursuant to this
Section 7, the number of shares of Option Shares purchasable
on the exercise of such Options shall be the number derived
by dividing such adjusted Exercise Price into the original
Exercise Price. The Exercise Price shall be subject to
adjustment as follows:
(a) In the event, prior to the expiration of the
Options by exercise or by their terms, the Company shall
issue any shares of its Common Stock as a share dividend or
shall subdivide the number of outstanding shares of Common
Stock into a greater number of shares, then, in either of
such events, the Exercise Price per share of Common Stock
purchasable pursuant to the Options in effect at the time of
such action shall be reduced proportionately and the number
of shares purchasable pursuant to the Options shall be
increased proportionately. Conversely, in the event the
Company shall reduce the number of shares of its outstanding
Common Stock by combining such shares into a smaller number
of shares, then, in such event, the Exercise Price per share
purchasable pursuant to the Options in effect at the time of
such action shall be increased proportionately and the
number of shares of Common Stock at that time purchasable
pursuant to the Options shall be decreased proportionately.
Any dividend paid or distributed on the Common Stock in
shares of Common Stock of the Company shall be treated as a
share dividend pursuant to the preceding sentence. However,
any dividend paid or distributed on the Common Stock in
securities other than Common Stock of the Company,
regardless if exercisable for or convertible into Common
Stock of the Company, shall not he treated as a share
dividend pursuant to the penumbra sentence.
(b) In the event the Company, at any time while the
Options shall remain unexpired and unexercised, shall sell
all or substantially all of its property, and thereafter
dissolves, liquidates or winds up its affairs, then no
provision need be made as part of the terms of any such
sale, dissolution, liquidation or winding up to allow Option
holders to exercise all or any Options held, in order to
receive the same kind and amount of any share, securities or
assets as may be issuable, distributable or payable on any
such sale, dissolution, liquidation or winding up with
respect to each share of Common Stock of the Company.
(c) Notwithstanding the provisions of
this Section 7, no adjustment on the Exercise Price shall be
made whereby such price is adjusted in an amount less than
$0.00 or until the aggregate of such adjustments shall equal
or exceed $0.00.
(d) No adjustment of the Exercise Price shall be
made as a result of or in connection with: (i) the issuance
of Common Stock of the Company pursuant to options, warrants
and share purchase agreements outstanding or in effect on
the date hereof: (ii) the establishment of additional option
plans, common stock purchase warrants or security offerings
of the Company, the modification, renewal or extension of
any such plan, warrants or offerings now in effect or
hereafter created, or the issuance of Common Stock on
exercise of any such options or warrants; or (iii) the
issuance of Common Stock in connection with an acquisition
or merger of any type.
(e) This Option Agreement shall be incorporated
by reference on the Option Certificates.
Before taking any action which would cause an adjustment
reducing the Exercise Price below the then par value of the
shares of Common Stock issuable upon exercise of the
Options, the Company will take any corporate action which
may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid
and nonassessable shares of such Common Stock at such
adjusted Exercise Price.
Upon any adjustment of the Exercise Price required to be
made pursuant to this Section 7, the Company within thirty
(30) days thereafter shall: (i) notify the Registered Holder
of such adjustment setting forth the pertinent Exercise
Price after such adjustment and setting forth in reasonable
detail the method of calculation and the facts upon which
such calculation is based; and (ii) cause to be mailed to
each of the Registered Holder(s) of the Option Certificates
written notice of such adjustment.
8. Reduction in Exercise Price at Company's Option.
In addition to any adjustments made to the Exercise Price
pursuant to Section 7, the Company's Board of Directors may,
in its sole discretion, reduce the Exercise Price of the
Options in effect at any time either for the life of the
Options or any shorter period of time as may be determined
by the Company's Board of Directors. The Company shall
notify the Registered Holder of any such reduction in the
Exercise Price.
"The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws."
9. Transfer
(a) Transfers to Successors, Officers and
Directors of Registered Holder. This Option shall not be
transferred sold, assigned or hypothecated except that it
may be transferred to any successors of Registered Holder,
and may be assigned in whole or in part to any person who is
an officer or director of Registered Holder on May 24 1996.
All such transfers, sales, assignments or hypothecation
shall be fully identified to the Company and the transferor
shall execute and deliver to the Company such certificates,
endorsements and other documents as the Company or Company's
counsel may require.
(b) Transfer of Option Or Option Shares. The
Registered Holder and each Transferee Holder, agrees that
they shall not sell, assign. pledge, hypothecate or
otherwise transfer the Option or the Option Shares, in whole
or in part, except pursuant to an effective registration
under the Securities Act of 1933, as amended (the "Act") and
in compliance with applicable state securities laws, or the
Company receives an opinion of counsel, satisfactory to the
Company and Company counsel, that such registration is not
required and that the sale, assignment, pledge,
hypothecation or transfer is in compliance with applicable
federal and state securities laws. In order to make any
sale, assignment, pledge or hypothecation, the transferor
must deliver to the Company the assignment form attached
hereto duly executed and completed, together with the
applicable certificate and payment of all transfer taxes, if
any, payable in connection therewith. As to the Option, the
Company shall transfer the transferred Option on the books
of the Company and shall execute and deliver a new Option
Certificate of like tenor to the appropriate assignee(s)
expressly evidencing the right to purchase the number of
Option Shares purchasable thereunder. As to the Option
Shares, the Company shall cause its duly authorized common
stock transfer agent to transfer the common stock being
transferred.
10. Registration. The Company, upon the one time
written demand (the "Demand Notice") of the Registered
Holder (as defined herein), agrees to use its best efforts
to register, on one occasion, all or any portion of the
Option Shares, as requested by the Registered Holder. On
such occasion, the Company will use its best efforts to file
a Form S-8 Registration Statement covering the Registrable
Securities within one-hundred twenty (120) days after
receipt of the Demand Notice and use its best efforts to
have such registration statement declared effective promptly
thereafter. The demand for registration may be made at any
time prior to the Termination Date. The Company covenants
and agrees to give written notice of its receipt of any
Demand Notice by Registered Holder to all other registered
Holders of the Options and the Registrable Securities within
thirty days from the date of the receipt of any such Demand
Notice. In the event of registration the Company and the
Holder(s) shall execute such documents as may be reasonably
required by the Company and Company counsel to carry out
such registration.
(a) Terms of Registration. The Company shall
bear all fees and expenses attendant to registering the
Registrable Securities, but the Holder(s) shall pay any and
all underwriting and broker-dealer discounts, commissions
and non-accountable expenses of any underwriter or broker-
dealer selected to sell the Registrable Securities, together
with the expenses of any legal counsel selected by the
Holder(s) to represent them in connection with the sale of
the Registrable Securities. The Company shall cause any
registration statement filed pursuant to the demand rights
granted hereto to remain effective for a period of sixteen
months from the date of the latest balance sheet of the
audited financial statements contained therein on the
initial effective date of such registration statement.
(b) Restriction on Registration. The Company
shall not be obligated to register the Registrable
Securities if such securities may be sold pursuant to the
exemption from registration as provided by Rule 144 as
promulgated under the Act, nor shall the Company be
obligated to register the Registrable Securities in any
state in which the principal stockholders, officers.
directors or employees of the Company may in any way be
obligated to escrow any of their shares of Capital Stock of
the Company or in a state in which the Company may be
restricted from conducting its business in any way,
including but not limited to, qualifying to do business,
become subject to tax, or restricted from issuing additional
securities or incur restrictions on compensating officers,
directors or employees.
(c) Right To Redeem In Lieu Of Registration. The
Company may in its sole discretion, and in lieu of
registration of the Registrable Securities, pay to the
Holder(s) an amount equal to the amount which would be
realized by the Holder(s) upon sale of the Registrable
Securities reduced by the Exercise Price plus the ,3
expenses, fees and broker/dealer commissions which would be
paid by the Holder(s) in the event of registration and sale
of the Registrable Securities. The Company may elect to
make such payment upon notice to the Holder(s) within 30
days of receipt of a notice of Demand Registration.
11. Modification of Agreement. The Company and the
Registered Holder may by supplemental agreement make any
changes or corrections in this Agreement:
(i) that they shall deem appropriate to cure any
ambiguity or to correct any defective or inconsistent
provision or mistake or error herein contained; or (ii) that
they may deem necessary or desirable and which shall not
adverse{y affect the interest of the holders of Option
Certificates; provided, however, this Agreement shell not
otherwise be modified, supplemented or altered in any
respect except with the consent in writing of the Registered
Holders of Option Certificates representing not less than
fifty-one percent (51 %) of the Options outstanding.
Additionally, except as provided in Sections 7 and 8, no
change in the number or nature of the Option Shares
purchasable on exercise of an Option, or increase of the
purchase price therefore shall be made without the consent
in writing of the Registered Holder or Transferee Holder of
the Option Certificate representing such Option, other than
such changes as are specifically prescribed or allowed by
this Agreement.
12. Notices. All notices, demands, elections options or
requests (however characterized or described) required or
authorized hereunder shall be deemed sufficient if made in
writing and sent by registered or certified mail, return
receipt requested and postage prepaid, or by tested telex,
telegram or cable to the principal office of the addressee,
and if to the Registered Holder or Transferee Holder of an
Option Certificate, at the address of such holder as set
forth an the books maintained by the Company.
13. Binding Agreement. This Agreement shall be binding
upon and inure to the benefit of the Company, the Registered
Holder, each Transferee Holder and their respective
successors and assigns. Nothing in this Agreement is
intended or shall be construed to confer upon any other
person any right, remedy or claim or to impose on any other
person any duty, liability or obligation.
14. Further Instruments. The parties hereto shall
execute and deliver any and all such other instruments and
shall take any and all other actions as may be reasonably
necessary to carry out the intention of this Agreement.
15. Severability. If any provision of this Agreement
shall be held, declared or pronounced void, voidable,
invalid, unenforceable or inoperative for any reason by any
court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall
not affect adversely any other provision of this Agreement,
which shall otherwise remain in full force and effect and be
enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited
to the territory or jurisdiction in which made.
16. Waiver. All the rights and remedies of either party
to this Agreement are cumulative and not exclusive of any
other rights and remedies as provided by law. No delay or
failure on the part of either party in the exercise of any
right or remedy arising from the breach of this Agreement
will constitute a waiver of any other right or remedy. The
consent of any party where required hereunder to act or
occurrence shall not be deemed to be a consent to any other
action or occurrence.
17. General Provisions. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of Florida. This Agreement embodies
the entire agreement and understanding between the parties
and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement
may not be modified or amended or any term or provision
hereof waived or discharged except in writing, signed by the
party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this
Agreement are for convenience and references only and shall
not limit or otherwise affect the meaning hereof.
Consultant DigiMedia USA, Inc.
By By.
Dated: Dated:
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 103606 76,923 Common Stock
Purchase
Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies TransMedia
Consultants, Inc., or his
registered assigns ("Option Holder") ' is the registered
owner of the above indicated number of Options (hereinafter
referred to as the "Option") expiring on ("Expiration
Date"). One (1) Option entitles the Option Holder to
purchase one (1) share of common stock, $.000667 par value
("Share"), from DigiMedia USA, Inc., a Nevada corporation
("Company"), at a purchase price of One Hundred (100%)
percent of the NASD closing bid price for over-the-counter
securities as of the date vested per share of Common Stock
("Exercise Price"), commencing on October 3, 1996 and
terminating on the Expiration Date ("Exercise Period"), upon
surrender of this Option Certificate with the exercise form
hereon duly completed and executed with payment of the
Exercise Price at the office of the Company being 2454 NE
13th Avenue, Fort Lauderdale, FL. 33305, subject only to the
conditions set forth herein and in an Option Agreement dated
as of October 3, 1996 (the "Option Agreement") between the
Company and David Bawarsky. The Option Holder may exercise
all or any number of Options. Reference hereby is made to
the provisions on the following pages of this Option
Certificate and to the provisions of the Option Agreement,
all of which are incorporated by reference in and made a
part of this Option Certificate and shall for all purposes
have the same effect as though fully set forth at this
place.
Upon due presentment for transfer of this Option
Certificate at the office of the Company, a new Option
Certificate or Option Certificates of like tenor and
evidencing in the aggregate a like number of Options,
subject to any adjustments made in accordance with the
provisions of the Option Agreement, shall be issued to the
transferee in exchange for this Option Certificate, subject
to the limitations provided in the Option Agreement, upon
payment to the Company of any tax or governmental charge
imposed in connection with such transfer.
The Option Holder of the Options evidenced by this Option
Certificate may exercise all or any whole number of such
Options during the period and in the manner stated hereon.
The Exercise Price shall be payable in lawful money of the
United States of America and in cash or by certified or bank
cashier's check payable to the order of the Company. If,
upon exercise of any Options evidenced by this Option
Certificate, the number of Options exercised shall be less
than the total number of Options so evidenced, there shall
be issued to the Option Holder a new Option Certificate
evidencing the number of Options not so exercised. No
Option may be exercised after 5:00 P.M. Fort Lauderdale, FL.
Time on the Expiration Date, and any Option not exercised by
such time shall become void, unless extended by the Company.
The securities represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933, as amended (the "Act"). The
securities may not be sold, assigned, pledged, hypothecated
or otherwise transferred except pursuant to an effective
registration statement under the Act and in compliance with
applicable state securities laws, or the Company receives an
opinion of counsel, satisfactory to the Company and Company
counsel, that such registration is not required and that the
sale, assignment, pledge, hypothecation or transfer is in
compliance with applicable state securities laws.
IN WITNESS WHEREOF, the Company has caused this Option to
be signed by its Chief Executive Officer and by its
Secretary, each by an original of his signature, and has
caused an original impression of its corporate seal to be
imprinted hereon.
Dated:
Signature / Title
Seal
Signature / Title
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN OR DESTROYED THE COMIPANY WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
FORM OF ELECTION TO PURCHASE
To be executed by the holder if he desires to exercise
Options evidenced by the within Option Certificate
TO: DigiMedia USA, Inc.
The undersigned hereby irrevocably elects to exercise
Options evidenced by the within Option Certificate for,
and to purchase thereunder, full shares issuable upon
exercise of said Options and delivery of $
and any applicable taxes.
The undersigned requests that certificates for such
shares be issued in the name of:
Please insert Social
Security
or Tax Identification
Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to:
Please print Name and Address
Dated:
Signature
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
every particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
For Value Received
Hereby sell, assign and transfer unto:
Please
insert
Social
Security
or Tax
Identificati
on Number
Please print Name and Address
If said number of Options shall not be all the Options
evidenced by the within Option Certificate, the undersigned
requests that a new Option Certificate evidencing the
Options not so exercised be issued in the name of and
delivered to
Please print Name and Address:
Dated:
Notice: The above signature must correspond with the name
as written upon the face of the within Option Certificate in
even, particular, or if signed by any other person, the Form
of Assignment thereon must be duly executed and if the
certificate representing the shares or any Option
Certificate representing Options not exercised is to be
registered in a name other than that in which the within
Option Certificate is registered, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
Signature must be guaranteed by a commercial bank or member
firm of one of the following stock exchanges: New York Stock
Exchange, Pacific Coast Stock Exchange, American Stock
Exchange or Midwest Stock Exchange.
