As filed with the Securities and Exchange Commission on November
26, 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 AGREEMENT
(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 PerOffering Fee
Share (1)Price (1)
Common Stock 680,000 $.375 $255,000 $100.00
$.000667 par Value
Per Share
Total 680,000 $.375 $255,000 $100.00
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457 on the basis of the
average price per share of $.375 for common stock of
DigiMedia USA, Inc. on November 5, 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 Agreement 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
November 7, 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.
President/Dir.
Signatures Titles Date
Vice President/Dir.
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 Agreement with:
First Equity, Inc.
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 and Director 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
DigiMedia USA. Inc.
2454 Nortbeast 13th Avenue
Fort Lauderdale, Florida 33305
November 21, 1996
Ref.: Form S-8 / Consultant Contract
To Whom It May Concern:
Reference is made to your proposed registration
of 680,000 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 Contract and the Option
Agreements which accompany said contract and you
have confirmed that the attachment of four Option
Agreements to this single Consultant Contract is
deliberate, as each of the four Option, Agreements
contemplates a different span of time and, conceivably, a
different price for the stock. 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 Contract and ehe
documents related to it, such shares of Common Stock
will be validly issued, fulty 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 7468, Canton, Ohio 44705 1535 Baycrest Dr.
N.W., Canton. Ohio 44708
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 Kirk J. Girrbach, and hereafter
referred to as "DigiMedia USA";
- and -
First Equity Group, Inc. with principal place of
business located at 1901 NW 62 Street Fort Lauderdale, FL.
33309, 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
[680,000] 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(s) 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 six months,
commencing on November 7, 1996 and continuing through to May
7, 1997. This agreement shall be automatically extended
beyond the initial six (6) month 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
thirty (30) 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 US 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), & (C). 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.
First Equity, Inc. DigiMedia USA, Inc.
By:_________________________ By:________________________
Kirk J. Girrbach,
President & CEO
Dated: ______________________ Dated: ________________
EXHIBIT "A" SERVICES
Consulting services to be provided by Consultant shall be as
follows:
1. To perform services as indicated in the
addendum attached hereto; and
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 1933 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 FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 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 [80,000] 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 $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 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 November 7, 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 C 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 October 3, 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:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110196 80,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
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 November 7, 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 November 7, 1996 (the
"Option Agreement") between the Company and Consultant. 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
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY 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.
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 1933 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 FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 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 [200,000] 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 $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 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 November 7, 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 C 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 October 3, 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:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110296 200,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
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 November 7, 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 November 7, 1996 (the
"Option Agreement") between the Company and Consultant. 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
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY 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 fimi of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
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 1933 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 FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 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 [200,000] 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 $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 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 November 7, 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 C 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 October 3, 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:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110396 200,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
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 November 7, 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 November 7, 1996 (the
"Option Agreement") between the Company and Consultant. 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
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY 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 fimi of one of
the following stock exchanges: New York Stock Exchange, Pacific Coast Stock
Exchange, American Stock Exchange or Midwest Stock Exchange.
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 1933 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 FIRST EQUITY GROUP, INC. (the
"Registered Holder").
WHEREAS, the Company and the Registered Holder are parties to a
Consulting Services Agreement, dated November 7, 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 [200,000] 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 $.375, which is 100% percent of the Over the Counter NASD automated
interdealer quotation system closing bid price on November 7, 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 November 7, 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 C 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 October 3, 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:
Exhibit C
DigiMedia USA, Inc.
Incorporated Under the Laws Of the State of Nevada
No. 110496
200,000 Common Stock
Purchase Options
CERTIFICATE FOR COMMON STOCK PURCHASE OPTIONS
This Option Certificate certifies First Equity Group, Inc., or its
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 November 7, 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 November 7, 1996 (the
"Option Agreement") between the Company and Consultant. 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
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED
THE COMPANY 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.
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 and which
are compatible with the Consulting Agreement..
