-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G+EiF7FsqDZZKy5UC7ERQ7snCfILNERQ/drsXXQMBSvhBJSprttR2q3t78+o+3E1 xSAQBl6cu8YiPS8Tv2PpSQ== 0000014280-04-000106.txt : 20041207 0000014280-04-000106.hdr.sgml : 20041207 20041207090230 ACCESSION NUMBER: 0000014280-04-000106 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20041207 DATE AS OF CHANGE: 20041207 EFFECTIVENESS DATE: 20041207 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MEDIA SERVICES GROUP INC CENTRAL INDEX KEY: 0000014280 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 880085608 STATE OF INCORPORATION: NV FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-121041 FILM NUMBER: 041187477 BUSINESS ADDRESS: STREET 1: 575 MADISON AVENUE STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 917-339-7134 MAIL ADDRESS: STREET 1: 575 MADISON AVENUE STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: MEDIA SERVICE GROUP INC DATE OF NAME CHANGE: 20040408 FORMER COMPANY: FORMER CONFORMED NAME: MKTG SERVICES INC DATE OF NAME CHANGE: 20020403 FORMER COMPANY: FORMER CONFORMED NAME: MARKETING SERVICES GROUP INC DATE OF NAME CHANGE: 19970707 S-8 1 forms8txt.txt FORM S-8 - 80K SHARES Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MEDIA SERVICES GROUP, INC. ------------------------------ (Exact name of Registrant as specified in charter) Nevada 88-0085608 ---------- -------------- (State or other jurisdiction of (I.R.S. Employer incorporation of organization) Identification Number) 575 Madison Avenue, New York, NY 10022 -------------------------------------- (Address of Principal Executive Offices) Non-Plan Option Grant Agreement, dated as of May 25, 2004, between the Registrant and Seth Antine; Non-Plan Option Grant Agreement, dated as of March 24, 2004, between the Registrant and David Stoller; Non-Plan Option Grant Agreement, dated as of April 30, 2004, between the Registrant and Joseph Peters ------------------------------------------------------------------------ (Full title of the Plans) J. Jeremy Barbera 575 Madison Avenue, New York, NY 10022 -------------------------------------- (Name and address of agent for service) (917) 339-7134 ------------- (Telephone number, including area code, of agent for service) COPY TO: Alan I. Annex, Esq., Greenberg Traurig, LLP 200 Park Avenue, New York, NY 10166
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------ Each Class of Amount to be Proposed maximum Proposed maximum Amount of Title of Securities registered (1) offering price per aggregate offering registration fee to be registered share (2) price (2) (2) - ------------------------------------------------------------------------------------------------------------ Common stock, $0.01 60,000 $12.00 $720,000 $91.22 par value per share Common stock, $0.01 10,000 $8.25 82,500 $10.46 par value per share Common stock, $0.01 10,000 $2.99 29,900 $3.79 par value per share ------ $105.47 - -----------------------------------------------------------------------------------------------------------
1 (1) This Registration Statement covers (i) 60,000 shares authorized to be issued under an Option Grant Agreement to Seth Antine having an exercise price of $12.00 per share; (ii) 10,000 shares issued under an Option Grant Agreement to David Stoller having an exercise price of $2.99 per share; and (iii) 10,000 shares issued under an Option Grant Agreement to Joseph Peters having an exercise price of $8.25 per share. (2) Estimated solely for calculating the amount of the registration fee, pursuant to Rule 457(h) under the Securities Act of 1933, as amended. Pursuant to Rules 457(h) of the Securities Act, the proposed maximum offering price per Common Share subject to outstanding options ("Options") issued pursuant to the Option Grant Agreements has been calculated on the basis of the exercise prices of the options issued pursuant to those Option Grant Agreements. TABLE OF CONTENTS PART I PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference Item 4. Description of Securities Item 5. Interests of Named Experts and Counsel Item 6. Indemnification of Directors and Officers Item 7. Exemption from Registration Claimed Item 8. Exhibits Item 9. Undertakings SIGNATURES EXHIBIT LIST Opinion/Consent of Counsel Regarding Legality Consent of Amper, Politziner, and Mattia, P.C. Consent of PricewaterhouseCoopers, LLP PART I INFORMATION REQUIRED IN SECTION 10 (a) PROSPECTUS As permitted by the instructions to Form S-8, this Registration Statement omits the information specified in Part I of Registrant's Registration Statement on Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents, filed with the Securities and Exchange Commission (the "Commission") by Media Services Group, Inc., a Nevada Corporation, ("MSGI" or the "Company"), are incorporated herein by reference. 2 (a) Registrant's Annual Report filed on Form 10-K for the fiscal year ended June 30, 2004, pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended ( the "Exchange Act"). (b) Quarterly report of Form 10-Q for the three months ended September 30, 2004. (c) Current report on Form 8-K filed on September 2, 2004 regarding acquisition of 51% of Innalogic LLC. (d) Current report on Form 8-K filed on September 27, 2004 regarding introduction of new Future Developments America, Inc. product. (e) Current report on Form 8-K filed on October 19, 2004 regarding Company's results of operations (f) Current report on Form 8-K filed on October 21, 2004 regarding notice of failure to satisfy continued listing standard on Nasdaq. (g) Current report on Form 8-K filed on November 16, 2004 regarding private placement closing. (h) Current report on Form 8-K filed on November 30, 2004 regarding appointment of Joseph C. Peters as President of the Company. In addition, all documents filed by MSGI with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the date of the filing of such documents with the Commission. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel The opinion of counsel as to the legality of the securities being registered, which is Exhibit 5.1 to this Registration Statement, is rendered by McDonald Carano Wilson LLP. Item 6. Indemnification of Directors and Officers The Restated Articles provide that Directors and officers of the Company shall not be personally liable to the Company or its stockholders for damages for breach of fiduciary duty as a Director or officer, except for (i) acts or omissions which involve intentional misconduct, fraud, or a knowing violation of law or (ii) the payment of dividends in violation of the provisions of Chapter 78 of the Nevada Revised Statute (the "NRS"). The Restated Articles further provide that, if the NRS is amended to authorize corporate action further eliminating or limiting the personal liability of Directors and officers, then the liability of a Director or officer of the Company shall be eliminated or limited to the full extent permitted by the NRS. Any repeal or modification of all or any portion of the limitation on liability contained in the Restated Articles by the stockholders of the Company shall not adversely affect any right or protection of a Director or officer of the Company with respect to any acts or omissions occurring prior to the time of such repeal or modification. The By-Laws provide for indemnification of the officers and Directors of the Company, as the case may be, against any liability, cost or expense incurred by such Director or officer by reason of the fact that such person is or was a Director, officer, employee or agent of the Company, except to the extent that such indemnification is prohibited by Chapter 78 of the NRS. 3 Section 78.7502 of the NRS provides that a corporation may, and in certain cases, must, indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding (other than certain actions by, or in right of, the Corporation), by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys' fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by such person, in connection with the action, suit or proceeding, if, in either type of action, such person acted in good faith and in a manner which such person reasonably believed to be in, or not opposed to, the best interests of the corporation. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent does not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in, or not opposed to, the best interests of the corporation and that, with respect to any criminal action or proceeding, such person had reasonable cause to believe that such person's conduct was unlawful. Indemnification may not be made, in a derivative action, for any claim, issue or matter as to which such a person had been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation, or for amounts paid in settlement to the corporation, unless, and only to the extent that, the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. Unless ordered by a court or advanced (as described above), any indemnification must be made by the corporation, only as authorized in the specific case, upon a determination that the indemnification of the Director, officer, employee or agent is proper in the circumstances. The determination must be made either by the stockholders, or by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to the act, suit or proceeding. If a majority vote of a quorum consisting of Directors who were not parties to the act, suit or proceeding so orders, or if a quorum consisting of Directors who were not parties to the act, suit or proceeding cannot be obtained, the determination must be made by independent legal counsel in a written opinion. The Company's By-Laws provide that the expenses of officers and Directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred, and in advance of the final disposition of the action, upon receipt of an undertaking by, or on behalf of, the Director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that such person is not entitled to be indemnified by the corporation, Insofar as indemnification for Directors, officers and controlling persons of the Company with respect to liabilities arising under the Securities Act may be granted pursuant to the provisions described above, or otherwise, the Company has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. Item 7. Exemption from Registration Claimed Not applicable Item 8. Exhibits Exhibit No. ---------- 4.1 The Non-Plan Option Grant Agreement, dated as of May 25, 2004, between the Registrant and Seth Antine. 4.2 The Non-Plan Option Grant Agreement, dated as of March 24, 2004, between the Registrant and David Stoller. 4 4.3 The Non-Plan Option Grant Agreement, dated as of April 30, 2004, between the Registrant and Joseph Peters 5.1 Opinion of McDonald Carano Wilson LLP 23.1 Consent of Amper, Politziner & Mattia, P.C. 23.2 Consent of PricewaterhouseCoopers, LLP Item 9. Undertakings MSGI hereby undertakes: (a) Rule 415 offering. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities and Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Filings incorporating 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) or 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. 5 Insofar as indemnification for liabilities arising under the Securities Act of 1933, may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 New York, State of New York, on December 6, 2004. MEDIA SERVICES GROUP, INC. By: /s/ J. Jeremy Barbera -------------------------- J. Jeremy Barbera Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on December 6, 2004. Signature Title - ----------- ------ /s/ J. Jeremy Barbera - --------------------- Chairman of the Board and Chief Executive J. Jeremy Barbera Officer (Principal Executive Officer) /s/ Joseph Peters Director - ----------------- Joseph Peters /s/ Seymour Jones Director - ----------------- Seymour Jones /s/ John T. Gerlach Director - ------------------- John T. Gerlach /s/ David Stoller Director - ------------------- David Stoller 6 Exhibit No. 5.3 McDONALD CARANO WILSON LLP December 6, 2004 Board of Directors Media Services Group, Inc. 575 Madison Avenue New York, New York 10022 Re: Registration Statement/Form S-8 Non-Plan Option Grant/Antine Non-Plan Option Grant/Stoller Non-Plan Option Grant/Peters Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 80,000 shares (the "Shares") of $.01 par value common stock (the "Common Stock") of Media Services Group, Inc. (the "Company") issuable upon exercise of options which have been and will be granted under the Non-Plan Option Agreements (the "Agreements") respectively entered with Seth Antine (60,000 shares), David Stoller (10,000 shares), and Joseph Peters (10,000 shares). As your counsel in connection with the Registration Statement, we have examined the proceedings taken by you in connection with the respective option grants and the authorization of the issuance of the Shares, and such documents as we have deemed necessary to render this opinion. For the purpose of the opinion rendered below, we have assumed that in connection with the issuance of the Shares, the Company will receive consideration in an amount not less than the aggregate par value of the Shares covered by each such issuance. Based upon and subject to the foregoing, it is our opinion that the Shares, when issued and outstanding pursuant to the terms of the Agreements, will be legally issued, fully paid, and non-assessable Common Stock. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments thereto. Sincerely, /s/McDONALD CARANO WILSON LLP ----------------------------- 7 Exhibit 23.1 CONSENT OF REGISTERED INDEPENDENT PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of Media Services Group, Inc. and Subsidiaries (formerly MKTG Services, Inc.), of our report dated October 11, 2004, appearing in the Annual Report on Form 10-K relating to the consolidated financial statements as of June 30, 2004 and 2003 and for the two fiscal years then ended. /s/ Amper, Politziner, and Mattia, P.C. - --------------------------------------- December 6, 2004 Edison, New Jersey 8 Exhibit 23.2 Consent of Independent Registered Public Accounting Firm We hereby consent to the incorporation by reference in this Registration Statements on Form S-8 of Media Services Group, Inc. and Subsidiaries (formerly MKTG Services, Inc.), of our report dated September 26, 2002, except for the reclassification and presentation of the discontinued operations of the Northeast Operations and Grizzard, Inc., as discussed in Note 4, as to which the date is October 14, 2003 and for the reclassification and presentation of the discontinued operations of MKTG Teleservices, Inc., as discussed in Note 4, as to which the date is October 13, 2004, relating to the consolidated financial statements and financial statement schedule which appears in Media Services Group's Annual Report on Form 10-K for the year ended June 30, 2004. /s/ PricewaterhouseCoopers LLP - ------------------------------ New York, New York December 6, 2004 9 EX-23 2 exhibpwctxt.txt CONSENT - PWC Exhibit 23.2 Consent of Independent Registered Public Accounting Firm We hereby consent to the incorporation by reference in this Registration Statements on Form S-8 of Media Services Group, Inc. and Subsidiaries (formerly MKTG Services, Inc.), of our report dated September 26, 2002, except for the reclassification and presentation of the discontinued operations of the Northeast Operations and Grizzard, Inc., as discussed in Note 4, as to which the date is October 14, 2003 and for the reclassification and presentation of the discontinued operations of MKTG Teleservices, Inc., as discussed in Note 4, as to which the date is October 13, 2004, relating to the consolidated financial statements and financial statement schedule which appears in Media Services Group's Annual Report on Form 10-K for the year ended June 30, 2004. /s/ PricewaterhouseCoopers LLP - ------------------------------ New York, New York December 6, 2004 EX-23 3 exhibampertxt.txt CONSENT - AMPER Exhibit 23.1 CONSENT OF REGISTERED INDEPENDENT PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of Media Services Group, Inc. and Subsidiaries (formerly MKTG Services, Inc.), of our report dated October 11, 2004, appearing in the Annual Report on Form 10-K relating to the consolidated financial statements as of June 30, 2004 and 2003 and for the two fiscal years then ended. /s/ Amper, Politziner, and Mattia, P.C. - --------------------------------------- December 6, 2004 Edison, New Jersey EX-5 4 exhibtopiniontxt.txt LEGAL OPINION Exhibit No. 5.3 McDONALD CARANO WILSON LLP December 6, 2004 Board of Directors Media Services Group, Inc. 575 Madison Avenue New York, New York 10022 Re: Registration Statement/Form S-8 Non-Plan Option Grant/Antine Non-Plan Option Grant/Stoller Non-Plan Option Grant/Peters Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 80,000 shares (the "Shares") of $.01 par value common stock (the "Common Stock") of Media Services Group, Inc. (the "Company") issuable upon exercise of options which have been and will be granted under the Non-Plan Option Agreements (the "Agreements") respectively entered with Seth Antine (60,000 shares), David Stoller (10,000 shares), and Joseph Peters (10,000 shares). As your counsel in connection with the Registration Statement, we have examined the proceedings taken by you in connection with the respective option grants and the authorization of the issuance of the Shares, and such documents as we have deemed necessary to render this opinion. For the purpose of the opinion rendered below, we have assumed that in connection with the issuance of the Shares, the Company will receive consideration in an amount not less than the aggregate par value of the Shares covered by each such issuance. Based upon and subject to the foregoing, it is our opinion that the Shares, when issued and outstanding pursuant to the terms of the Agreements, will be legally issued, fully paid, and non-assessable Common Stock. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any amendments thereto. Sincerely, /s/McDONALD CARANO WILSON LLP ----------------------------- EX-4 5 optionssatxt.txt NON-PLAN OPTION GRANT AGREEMENT - SETH ANTINE Exhibit No 4.1 Media Services Group, Inc. STOCK OPTION AGREEMENT STOCK OPTION AGREEMENT (the "Agreement"), dated as of the 25th of May, 2004, by and between Media Services Group, Inc., a Nevada corporation (the "Company"), and Seth Joseph Antine, (the "Grantee"). The Company hereby grants to the Grantee a stock option (the "Option") to purchase all or any part of an aggregate of 60,000 shares of the Company's common stock, $.01 par value per share (the "Shares"). This Option is intended to be an Incentive Stock Option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), but the Company does not represent or warrant that the Option qualifies as such. To evidence the Option and to set forth its terms, the Company and the Grantee agree as follows: 1. Confirmation of Grant. The Company hereby evidences and confirms its grant of the Option to the Grantee on the date of this Agreement. 2. Number of Shares. This Option shall be for an aggregate of 60,000 Shares. 3. Exercise Price. The exercise price shall be $12.00 per Share for a total of $720,000 (the "Exercise Price"). 4. Medium and Time of Payment. The Option shall be exercised by a written notice signed by the Grantee, which identifies this Agreement and states the number of Shares then being purchased (the "Exercise Notice"), delivered to the attention of the Company's Secretary at the Company's principal office in New York, New York. The exercise date shall be the date such notice is received by the Company. Such notice shall be accompanied by (i) cash payment or certified check equal to the Exercise Price; or (ii) a certificate representing Company stock owned by the Grantee, if not subject to any restrictions, with a Fair Market Value equal to the Exercise Price; or (iii) instructions for the Company to withhold from the purchased shares an amount with a Fair Market Value equal to the Exercise Price. "Fair Market Value" means the fair market value of a Share as determined by the Board of reference to the closing price quotation, or, if none, the average of the bid and asked prices, reported on Nasdaq Small Cap or other exchange or quotation system as of the most recent available date with respect to Company's common stock. Upon acceptance of the Exercise Notice and receipt of payment in full, the Company shall cause to be issued a certificate representing the Shares so purchased. 5. Term and Exercise of the Option. These options shall terminate on or before the earlier of (i) ninety (90) days after the termination of Grantee's relationship to the Company as an employee of, or consultant to, the Company or any of its subsidiaries or affiliates, (ii) upon the Grantee's death, or (iii) three (3) years from the date hereof, and any shares not purchased on or before the earlier of occurrence of one of these events may not thereafter be purchased. For the purpose of making determinations as to termination event number (i) preceding, decisions by the Company's Board of Directors as to when such relationships have been terminated shall be binding on the Grantee, provided that notice of such termination has been provided to all parties by way of notice of resignation given by the Grantee or by notice of termination given by the Company to the Grantee. The Option shall be immediately vested upon issuance. 6. Nontransferability. The Option may be transferred only by will or the laws of descent and distribution and the Option may be exercised during the Grantee's lifetime only by the Grantee (or by the Grantee's legal representative under the circumstances described in Section 7 hereof). 7. Representations and Warranties of Grantee. (a) Grantee represents and warrants that this Option is being acquired by Grantee for Grantee's personal account, for investment purposes only, and not with a view to the distribution, resale or other disposition thereof. (b) Grantee acknowledges that the Company may issue Shares upon the exercise of the Option without registering such Shares under the Securities Act of 1933, as amended (the "1933 Act"), on the basis of certain exemptions from such registration requirement. Accordingly, Grantee agrees that his or her exercise of the Option may be expressly conditioned upon his or her delivery to the Company of an investment certificate including such representations and undertakings as the Company may reasonably require in order to assure the availability of such exemptions, including a representation that Grantee is acquiring the Shares for investment and not with a present intention of selling or otherwise disposing thereof and an agreement by Grantee that the certificates evidencing the Shares may bear a legend indicating such non-registration under the 1933 Act and the resulting restrictions on transfer. Grantee acknowledges that, because Shares received upon exercise of an Option may be unregistered, Grantee may be required to hold the Shares indefinitely unless they are subsequently registered for resale under the 1933 Act or an exemption from such registration is available, it being understood that the Company is making no representation regarding registration of any Shares. (c) Grantee hereby acknowledges that, in addition to certain restrictive legends that the securities laws of the state in which Optionee resides may require, each certificate representing the Shares may be endorsed with the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAW OF RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS NOT REQUIRED. 8. Adjustment in the Shares. If the Shares, as presently constituted, shall be changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, split, reverse split, combination of shares, or otherwise) or if the number of Shares shall be increased through the payment of a share dividend, the Grantee shall receive upon exercise of the Option the number and kind of shares or other securities into which each outstanding Share shall be so changed, or for which each such Share shall be exchanged, or to which each such Share shall be entitled, as the case may be. If there shall be any other change in the number or kind of the outstanding Shares, or of any shares or other securities into which the Shares shall have been changed, or for which the Shares shall have been exchanged, then, if the Board shall, in its sole discretion, determine that such change equitably requires an adjustment in the Option, such adjustment shall be made in accordance with that determination. Notice of any adjustment shall be given by the Company to the Grantee. 9. Stop-Transfer Notices. Grantee understands and agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate "stop-transfer" instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records. 10. No Limitation on Rights of the Company. The grant of this Option shall not in any way affect the right or power of the Company to make adjustments, reclassifications, or changes in its capital or business structure or to merge, consolidate, dissolve, liquidate, sell, or transfer all or any part of its business or assets. 11. Rights as a Shareholder. The Grantee shall have the rights of a shareholder with respect to the Shares covered by the Option only upon becoming the holder of record of those Shares. 12. Compliance with Applicable Law. Notwithstanding anything herein to the contrary, the Company shall not be obligated to cause to be issued or delivered any certificates for Shares pursuant to the exercise of the Option, unless and until the Company is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded. The Company shall in no event be obligated to register any securities pursuant to the 1933 Act (as now in effect or as hereafter amended) or to take any other action in order to cause the issuance and delivery of such certificates to comply with any such law, regulation or requirement. The Board may require, as a condition of the issuance and delivery of such certificates and in order to ensure compliance with such laws, regulations, and requirements, that the Grantee make such covenants, agreements, and representations as the Board, in its sole discretion, considers necessary or desirable. 13. No Obligation to Exercise Option. The granting of the Option shall impose no obligation upon the Grantee to exercise the Option. 14. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered, or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally or, if mailed, four days after the date of deposit in the United States mails, to each party at its address set forth above or to such other address as may be designated in a notice given in accordance with this Section. 15. Governing Law. Except to the extent preempted by Federal law, this Agreement shall be construed and enforced in accordance with, and governed by, Nevada law. 16. Attorneys' Fees. In the event any litigation concerning any controversy, claim or dispute between the parties hereto, arising out or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, reasonable attorneys' fees and reasonable costs incurred therein or in the enforcement or collection of any judgement or award rendered therein. The "prevailing party" means the party determined by the court to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgement is rendered. 17. Entire Agreement. This Agreement contains all of the understandings and agreements between the Company and its Affiliates, and the Grantee concerning this Option and supersedes all earlier negotiations and understandings, written or oral, between the parties with respect thereto. The Company, its Affiliates and the Grantee have made no promises, agreements, conditions or understandings either orally or in writing, that are not included in this Agreement. 18. Headings. The headings of Sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Agreement. 19. Amendments. This Agreement may be amended or modified at any time by an instrument in writing signed by the parties hereto. IN WITNESS WHEREOF, the Company and the Grantee have duly executed this Agreement as of the date first written above. Media Services Group, Inc. __________________________ By:___________________________ Witness Grantee - -------------------------- ------------------------------ Witness EX-4 6 optionsdstxt.txt NON-PLAN OPTION GRANT AGREEMENT - DAVID STROLLER Exhibit No 4.2 Media Services Group, Inc. STOCK OPTION AGREEMENT STOCK OPTION AGREEMENT (the "Agreement"), dated as of the 24th of March 2004, between Media Services Group, Inc., a Nevada corporation (the "Company"), and David Stoller (the "Grantee"). The Company hereby grants to the Grantee a stock option (the "Option") to purchase all or any part of an aggregate of 10,000 shares of the Company's common stock, $.01 par value per share (the "Shares"). This Option is intended to be an Incentive Stock Option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), but the Company does not represent or warrant that the Option qualifies as such. To evidence the Option and to set forth its terms, the Company and the Grantee agree as follows: 1. Confirmation of Grant. The Company hereby evidences and confirms its grant of the Option to the Grantee on the date of this Agreement. 2. Number of Shares. This Option shall be for an aggregate of 10,000 Shares. 3. Exercise Price. The exercise price shall be $2.99 per Share for a total of $29,900.00 (the "Exercise Price"). 4. Medium and Time of Payment. The Option shall be exercised by a written notice signed by the Grantee, which identifies this Agreement and states the number of Shares then being purchased (the "Exercise Notice"), delivered to the attention of the Company's Secretary at the Company's principal office in New York, New York. The exercise date shall be the date such notice is received by the Company. Such notice shall be accompanied by (i) cash payment or certified check equal to the Exercise Price; or (ii) a certificate representing Company stock owned by the Grantee, if not subject to any restrictions, with a Fair Market Value equal to the Exercise Price; or (iii) instructions for the Company to withhold from the purchased shares an amount with a Fair Market Value equal to the Exercise Price. "Fair Market Value" means the fair market value of a Share as determined by the Board of reference to the closing price quotation, or, if none, the average of the bid and asked prices, reported on Nasdaq Small Cap or other exchange or quotation system as of the most recent available date with respect to Company's common stock. Upon acceptance of the Exercise Notice and receipt of payment in full, the Company shall cause to be issued a certificate representing the Shares so purchased. 5. Term and Exercise of the Option. The Option shall expire on the 24th of March, 2014 (the "Expiration Date") and may be exercised in whole or in increments in accordance with the following schedule: (i) On FIRST ANNIVERSARY 20% of the Shares. (ii) On SECOND ANNIVERSARY An additional 40% of the Shares shall vest. (iii) On THIRD ANNIVERSAY Remaining 40% of the Shares shall vest. 6. Nontransferability. The Option may be transferred only by will or the laws of descent and distribution and the Option may be exercised during the Grantee's lifetime only by the Grantee (or by the Grantee's legal representative under the circumstances described in Section 7 hereof). 7. Rights in the Event of the Grantee's Disability. If the Grantee's employment, position as director, or other relationship with the Company and any parent or subsidiary corporation (within the meaning of Section 424(e) and (f) of the Code (each an "Affiliate")) is terminated on account of Disability, the Grantee or the Grantee's legal representative may exercise the Option, to the extent exercisable on the date of the Grantee's termination of employment or other relationship, at any time within six months after termination of employment or other relationship but in no event after the expiration of the term of the Option. The Grantee's "Estate" means the Grantee's legal representative or any person who acquires the right to exercise the Option by reason of the Grantee's death. "Disability" means a medically diagnosable mental or physical condition which the Company's Board of Directors (the "Board") has determined, based on such medical evidence as it may find satisfactory, will prevent a Grantee from performing his or her duties for the Company and is expected to be permanent. 8. Rights in the Event of the Grantee's Death. If the Grantee dies while an employee or director of the Company or any Affiliate or within three months after terminating such employment or other relationship, but in either event while he still has the right to exercise this Option, his Estate may exercise the Option, to the extent exercisable at the date of the Grantee's death, any time within one year after the Grantee's death, but in no event after the expiration of the term of the Option, subject to the provisions of any stockholders agreement of the Company to which Grantee is a party. 9. Rights in the Event of Termination of Employment or Other Relationship. If Grantee's employment, position as director, or other relationship with the Company or any Affiliate is terminated (i) for cause or is otherwise attributable to a breach by the Grantee of an employment or confidentiality or non-disclosure or invention assignment agreement or (ii) voluntarily by the Grantee without good reason (if good reason termination is permitted by Grantee's employment agreement), the Grantee's Option shall expire as of the date of termination of employment or other relationship. The Board of Directors (the "Board") of the Company or the committee shall have the power to determine, in its sole discretion, what constitutes a termination for cause or a breach of an employment or confidentiality or non-disclosure or invention assignment agreement (where Grantee has entered into an employment agreement with the Company and cause is defined therein, such determination shall be in accordance with such employment agreement), whether Grantee has been terminated for cause or has breached such an agreement, and the date upon which such termination for cause or breach occurs. Any such determination shall be final and conclusive and binding upon the Grantee and all other persons interested or claiming interest under this Agreement. If the Grantee's employment or other relationship is terminated for any reason other than death, Disability, or as described in the preceding sentences of this Section, the Grantee may exercise the Option, to the extent exercisable before the termination, within three months after the termination, but in no event after the expiration of the term of the Option. If the terms of this Section 9 are inconsistent with the terms of any employment agreement between Grantee and the Company, the terms of the employment agreement shall govern. 10. Extension If Grantee Subject to Section 16(b) of the 1934 Act. Notwithstanding the foregoing paragraphs 7, 8 and 9, if the exercise of the Option within the applicable time periods set forth above would subject the Grantee to suit under Section 16(b) of the Securities Act of 1934, as amended, the Option shall remain exercisable to the extent permitted by law until the earliest to occur of (i) the 10th day following the date on which the Grantee would no longer be subject to such suit; (ii) the 360th day after the Grantee's termination of employment or other relationship; provided such termination was due to the death or Disability of the Grantee; (iii) the 90th day after the Grantee's termination of employment or other relationship; provided such termination was not for cause or otherwise attributable to a breach by the Grantee of an employment or confidentiality or non-disclosure or invention assignment agreement; or (iv) the Expiration Date; provided that no additional vesting of the Option shall occur during such periods. Any such extension of the period in which the Option may be exercised may result in the Option ceasing to qualify as an Incentive Stock Option and the Company makes no representation as to the tax consequences of any such delayed exercise. The Grantee agrees to consult with the Grantee's own tax advisors as to the tax consequences to the Grantee of any such delayed exercise. 11. Representations and Warranties of Grantee. (a) Grantee represents and warrants that this Option is being acquired by Grantee for Grantee's personal account, for investment purposes only, and not with a view to the distribution, resale or other disposition thereof. (b) Grantee acknowledges that the Company may issue Shares upon the exercise of the Option without registering such Shares under the Securities Act of 1933, as amended (the "1933 Act"), on the basis of certain exemptions from such registration requirement. Accordingly, Grantee agrees that his or her exercise of the Option may be expressly conditioned upon his or her delivery to the Company of an investment certificate including such representations and undertakings as the Company may reasonably require in order to assure the availability of such exemptions, including a representation that Grantee is acquiring the Shares for investment and not with a present intention of selling or otherwise disposing thereof and an agreement by Grantee that the certificates evidencing the Shares may bear a legend indicating such non-registration under the 1933 Act and the resulting restrictions on transfer. Grantee acknowledges that, because Shares received upon exercise of an Option may be unregistered, Grantee may be required to hold the Shares indefinitely unless they are subsequently registered for resale under the 1933 Act or an exemption from such registration is available, it being understood that the Company is making no representation regarding registration of any Shares. (c) Grantee hereby acknowledges that, in addition to certain restrictive legends that the securities laws of the state in which Optionee resides may require, each certificate representing the Shares may be endorsed with the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAW OF RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS NOT REQUIRED. 12. Adjustment in the Shares. If the Shares, as presently constituted, shall be changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, split, reverse split, combination of shares, or otherwise) or if the number of Shares shall be increased through the payment of a share dividend, the Grantee shall receive upon exercise of the Option the number and kind of shares or other securities into which each outstanding Share shall be so changed, or for which each such Share shall be exchanged, or to which each such Share shall be entitled, as the case may be. If there shall be any other change in the number or kind of the outstanding Shares, or of any shares or other securities into which the Shares shall have been changed, or for which the Shares shall have been exchanged, then, if the Board shall, in its sole discretion, determine that such change equitably requires an adjustment in the Option, such adjustment shall be made in accordance with that determination. Notice of any adjustment shall be given by the Company to the Grantee. 13. Stop-Transfer Notices. Grantee understands and agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate "stop-transfer" instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records. 14. No Limitation on Rights of the Company. The grant of this Option shall not in any way affect the right or power of the Company to make adjustments, reclassifications, or changes in its capital or business structure or to merge, consolidate, dissolve, liquidate, sell, or transfer all or any part of its business or assets. 15. Rights as a Shareholder. The Grantee shall have the rights of a shareholder with respect to the Shares covered by the Option only upon becoming the holder of record of those Shares. 16. Compliance with Applicable Law. Notwithstanding anything herein to the contrary, the Company shall not be obligated to cause to be issued or delivered any certificates for Shares pursuant to the exercise of the Option, unless and until the Company is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded. The Company shall in no event be obligated to register any securities pursuant to the 1933 Act (as now in effect or as hereafter amended) or to take any other action in order to cause the issuance and delivery of such certificates to comply with any such law, regulation or requirement. The Board may require, as a condition of the issuance and delivery of such certificates and in order to ensure compliance with such laws, regulations, and requirements, that the Grantee make such covenants, agreements, and representations as the Board, in its sole discretion, considers necessary or desirable. 17. No Obligation to Exercise Option. The granting of the Option shall impose no obligation upon the Grantee to exercise the Option. 18. Agreement Not a Contract of Employment. This Agreement is not a contract of employment, and the terms of employment of the Grantee or the relationship of the Grantee with the Company or any Affiliate shall not be affected in any way by this Agreement except as specifically provided herein. The execution of this Agreement shall not be construed as conferring any legal rights upon the Grantee for a continuation of employment or relationship with the Company or any Affiliate, nor shall it interfere with the right of the Company or any subsidiary thereof to discharge the Grantee and to treat him without regard to the effect which that treatment might have upon him as a Grantee. 19. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered, or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally or, if mailed, four days after the date of deposit in the United States mails, to each party at its address set forth above or to such other address as may be designated in a notice given in accordance with this Section. 20. Governing Law. Except to the extent preempted by Federal law, this Agreement shall be construed and enforced in accordance with, and governed by, Nevada law. 21. Attorneys' Fees. In the event any litigation concerning any controversy, claim or dispute between the parties hereto, arising out or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, reasonable attorneys' fees and reasonable costs incurred therein or in the enforcement or collection of any judgement or award rendered therein. The "prevailing party" means the party determined by the court to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgement is rendered. 22. Entire Agreement. This Agreement contains all of the understandings and agreements between the Company and its Affiliates, and the Grantee concerning this Option and supersedes all earlier negotiations and understandings, written or oral, between the parties with respect thereto. The Company, its Affiliates and the Grantee have made no promises, agreements, conditions or understandings either orally or in writing, that are not included in this Agreement. 23. Headings. The headings of Sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Agreement. 24. Amendments. This Agreement may be amended or modified at any time by an instrument in writing signed by the parties hereto. IN WITNESS WHEREOF, the Company and the Grantee have duly executed this Agreement as of the date first written above. Media Services Group, Inc. __________________________ By:___________________________ Witness Grantee - -------------------------- ------------------------------ Witness EX-4 7 optionsjptxt.txt NON-PLAN OPTION GRANT AGREEMENT - JOE PETERS Exhibit No 4.3 Media Services Group, Inc. STOCK OPTION AGREEMENT STOCK OPTION AGREEMENT (the "Agreement"), dated as of the 30th of April 2004, between Media Services Group, Inc., a Nevada corporation (the "Company"), and Joseph Peters (the "Grantee"). The Company hereby grants to the Grantee a stock option (the "Option") to purchase all or any part of an aggregate of 10,000 shares of the Company's common stock, $.01 par value per share (the "Shares"). This Option is intended to be an Incentive Stock Option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), but the Company does not represent or warrant that the Option qualifies as such. To evidence the Option and to set forth its terms, the Company and the Grantee agree as follows: 1. Confirmation of Grant. The Company hereby evidences and confirms its grant of the Option to the Grantee on the date of this Agreement. 2. Number of Shares. This Option shall be for an aggregate of 10,000 Shares. 3. Exercise Price. The exercise price shall be $8.25 per Share for a total of $82,500.00 (the "Exercise Price"). 4. Medium and Time of Payment. The Option shall be exercised by a written notice signed by the Grantee, which identifies this Agreement and states the number of Shares then being purchased (the "Exercise Notice"), delivered to the attention of the Company's Secretary at the Company's principal office in New York, New York. The exercise date shall be the date such notice is received by the Company. Such notice shall be accompanied by (i) cash payment or certified check equal to the Exercise Price; or (ii) a certificate representing Company stock owned by the Grantee, if not subject to any restrictions, with a Fair Market Value equal to the Exercise Price; or (iii) instructions for the Company to withhold from the purchased shares an amount with a Fair Market Value equal to the Exercise Price. "Fair Market Value" means the fair market value of a Share as determined by the Board of reference to the closing price quotation, or, if none, the average of the bid and asked prices, reported on Nasdaq Small Cap or other exchange or quotation system as of the most recent available date with respect to Company's common stock. Upon acceptance of the Exercise Notice and receipt of payment in full, the Company shall cause to be issued a certificate representing the Shares so purchased. 5. Term and Exercise of the Option. The Option shall expire on the 30th of April, 2014 (the "Expiration Date") and may be exercised in whole or in increments in accordance with the following schedule: (i) On FIRST ANNIVERSARY 20% of the Shares. (ii) On SECOND ANNIVERSARY An additional 40% of the Shares shall vest. (iii) On THIRD ANNIVERSAY Remaining 40% of the Shares shall vest. 6. Nontransferability. The Option may be transferred only by will or the laws of descent and distribution and the Option may be exercised during the Grantee's lifetime only by the Grantee (or by the Grantee's legal representative under the circumstances described in Section 7 hereof). 7. Rights in the Event of the Grantee's Disability. If the Grantee's employment, position as director, or other relationship with the Company and any parent or subsidiary corporation (within the meaning of Section 424(e) and (f) of the Code (each an "Affiliate")) is terminated on account of Disability, the Grantee or the Grantee's legal representative may exercise the Option, to the extent exercisable on the date of the Grantee's termination of employment or other relationship, at any time within six months after termination of employment or other relationship but in no event after the expiration of the term of the Option. The Grantee's "Estate" means the Grantee's legal representative or any person who acquires the right to exercise the Option by reason of the Grantee's death. "Disability" means a medically diagnosable mental or physical condition which the Company's Board of Directors (the "Board") has determined, based on such medical evidence as it may find satisfactory, will prevent a Grantee from performing his or her duties for the Company and is expected to be permanent. 8. Rights in the Event of the Grantee's Death. If the Grantee dies while an employee or director of the Company or any Affiliate or within three months after terminating such employment or other relationship, but in either event while he still has the right to exercise this Option, his Estate may exercise the Option, to the extent exercisable at the date of the Grantee's death, any time within one year after the Grantee's death, but in no event after the expiration of the term of the Option, subject to the provisions of any stockholders agreement of the Company to which Grantee is a party. 9. Rights in the Event of Termination of Employment or Other Relationship. If Grantee's employment, position as director, or other relationship with the Company or any Affiliate is terminated (i) for cause or is otherwise attributable to a breach by the Grantee of an employment or confidentiality or non-disclosure or invention assignment agreement or (ii) voluntarily by the Grantee without good reason (if good reason termination is permitted by Grantee's employment agreement), the Grantee's Option shall expire as of the date of termination of employment or other relationship. The Board of Directors (the "Board") of the Company or the committee shall have the power to determine, in its sole discretion, what constitutes a termination for cause or a breach of an employment or confidentiality or non-disclosure or invention assignment agreement (where Grantee has entered into an employment agreement with the Company and cause is defined therein, such determination shall be in accordance with such employment agreement), whether Grantee has been terminated for cause or has breached such an agreement, and the date upon which such termination for cause or breach occurs. Any such determination shall be final and conclusive and binding upon the Grantee and all other persons interested or claiming interest under this Agreement. If the Grantee's employment or other relationship is terminated for any reason other than death, Disability, or as described in the preceding sentences of this Section, the Grantee may exercise the Option, to the extent exercisable before the termination, within three months after the termination, but in no event after the expiration of the term of the Option. If the terms of this Section 9 are inconsistent with the terms of any employment agreement between Grantee and the Company, the terms of the employment agreement shall govern. 10. Extension If Grantee Subject to Section 16(b) of the 1934 Act. Notwithstanding the foregoing paragraphs 7, 8 and 9, if the exercise of the Option within the applicable time periods set forth above would subject the Grantee to suit under Section 16(b) of the Securities Act of 1934, as amended, the Option shall remain exercisable to the extent permitted by law until the earliest to occur of (i) the 10th day following the date on which the Grantee would no longer be subject to such suit; (ii) the 360th day after the Grantee's termination of employment or other relationship; provided such termination was due to the death or Disability of the Grantee; (iii) the 90th day after the Grantee's termination of employment or other relationship; provided such termination was not for cause or otherwise attributable to a breach by the Grantee of an employment or confidentiality or non-disclosure or invention assignment agreement; or (iv) the Expiration Date; provided that no additional vesting of the Option shall occur during such periods. Any such extension of the period in which the Option may be exercised may result in the Option ceasing to qualify as an Incentive Stock Option and the Company makes no representation as to the tax consequences of any such delayed exercise. The Grantee agrees to consult with the Grantee's own tax advisors as to the tax consequences to the Grantee of any such delayed exercise. 11. Representations and Warranties of Grantee. (a) Grantee represents and warrants that this Option is being acquired by Grantee for Grantee's personal account, for investment purposes only, and not with a view to the distribution, resale or other disposition thereof. (b) Grantee acknowledges that the Company may issue Shares upon the exercise of the Option without registering such Shares under the Securities Act of 1933, as amended (the "1933 Act"), on the basis of certain exemptions from such registration requirement. Accordingly, Grantee agrees that his or her exercise of the Option may be expressly conditioned upon his or her delivery to the Company of an investment certificate including such representations and undertakings as the Company may reasonably require in order to assure the availability of such exemptions, including a representation that Grantee is acquiring the Shares for investment and not with a present intention of selling or otherwise disposing thereof and an agreement by Grantee that the certificates evidencing the Shares may bear a legend indicating such non-registration under the 1933 Act and the resulting restrictions on transfer. Grantee acknowledges that, because Shares received upon exercise of an Option may be unregistered, Grantee may be required to hold the Shares indefinitely unless they are subsequently registered for resale under the 1933 Act or an exemption from such registration is available, it being understood that the Company is making no representation regarding registration of any Shares. (c) Grantee hereby acknowledges that, in addition to certain restrictive legends that the securities laws of the state in which Optionee resides may require, each certificate representing the Shares may be endorsed with the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAW OF RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT REGISTRATION UNDER THE ACT AND APPLICABLE STATE LAW IS NOT REQUIRED. 12. Adjustment in the Shares. If the Shares, as presently constituted, shall be changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, split, reverse split, combination of shares, or otherwise) or if the number of Shares shall be increased through the payment of a share dividend, the Grantee shall receive upon exercise of the Option the number and kind of shares or other securities into which each outstanding Share shall be so changed, or for which each such Share shall be exchanged, or to which each such Share shall be entitled, as the case may be. If there shall be any other change in the number or kind of the outstanding Shares, or of any shares or other securities into which the Shares shall have been changed, or for which the Shares shall have been exchanged, then, if the Board shall, in its sole discretion, determine that such change equitably requires an adjustment in the Option, such adjustment shall be made in accordance with that determination. Notice of any adjustment shall be given by the Company to the Grantee. 13. Stop-Transfer Notices. Grantee understands and agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate "stop-transfer" instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records. 14. No Limitation on Rights of the Company. The grant of this Option shall not in any way affect the right or power of the Company to make adjustments, reclassifications, or changes in its capital or business structure or to merge, consolidate, dissolve, liquidate, sell, or transfer all or any part of its business or assets. 15. Rights as a Shareholder. The Grantee shall have the rights of a shareholder with respect to the Shares covered by the Option only upon becoming the holder of record of those Shares. 16. Compliance with Applicable Law. Notwithstanding anything herein to the contrary, the Company shall not be obligated to cause to be issued or delivered any certificates for Shares pursuant to the exercise of the Option, unless and until the Company is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded. The Company shall in no event be obligated to register any securities pursuant to the 1933 Act (as now in effect or as hereafter amended) or to take any other action in order to cause the issuance and delivery of such certificates to comply with any such law, regulation or requirement. The Board may require, as a condition of the issuance and delivery of such certificates and in order to ensure compliance with such laws, regulations, and requirements, that the Grantee make such covenants, agreements, and representations as the Board, in its sole discretion, considers necessary or desirable. 17. No Obligation to Exercise Option. The granting of the Option shall impose no obligation upon the Grantee to exercise the Option. 18. Agreement Not a Contract of Employment. This Agreement is not a contract of employment, and the terms of employment of the Grantee or the relationship of the Grantee with the Company or any Affiliate shall not be affected in any way by this Agreement except as specifically provided herein. The execution of this Agreement shall not be construed as conferring any legal rights upon the Grantee for a continuation of employment or relationship with the Company or any Affiliate, nor shall it interfere with the right of the Company or any subsidiary thereof to discharge the Grantee and to treat him without regard to the effect which that treatment might have upon him as a Grantee. 19. Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally or sent by certified, registered, or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally or, if mailed, four days after the date of deposit in the United States mails, to each party at its address set forth above or to such other address as may be designated in a notice given in accordance with this Section. 20. Governing Law. Except to the extent preempted by Federal law, this Agreement shall be construed and enforced in accordance with, and governed by, Nevada law. 21. Attorneys' Fees. In the event any litigation concerning any controversy, claim or dispute between the parties hereto, arising out or relating to this Agreement or the breach hereof, or the interpretation hereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, reasonable attorneys' fees and reasonable costs incurred therein or in the enforcement or collection of any judgement or award rendered therein. The "prevailing party" means the party determined by the court to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgement is rendered. 22. Entire Agreement. This Agreement contains all of the understandings and agreements between the Company and its Affiliates, and the Grantee concerning this Option and supersedes all earlier negotiations and understandings, written or oral, between the parties with respect thereto. The Company, its Affiliates and the Grantee have made no promises, agreements, conditions or understandings either orally or in writing, that are not included in this Agreement. 23. Headings. The headings of Sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Agreement. 24. Amendments. This Agreement may be amended or modified at any time by an instrument in writing signed by the parties hereto. IN WITNESS WHEREOF, the Company and the Grantee have duly executed this Agreement as of the date first written above. Media Services Group, Inc. __________________________ By:___________________________ Witness Grantee - -------------------------- ------------------------------ Witness -----END PRIVACY-ENHANCED MESSAGE-----