INFINITE GROUP, INC. Stock Option Agreement (This “Agreement”)
EXHIBIT
10.45
INFINITE
GROUP, INC.
(This
“Agreement”)
Dated:
December 28, 2017
(“Grant
Date”)
WHEREAS, Infinite Group, Inc., a
Delaware corporation (the “Company”) hereby desires to
compensate Xxxxx X. Xxxxx (the “Optionee”) with a fee pursuant to
the Company’s and the Optionee’s $75,000 line of credit
and note agreement and Modification Agreement No. 1 to Line of
Credit and Note Agreement (“LOC Agreement”) which
extends through January 2, 2023 (“Financing”); and
WHEREAS, the Optionee desires to provide
the Financing to the Company; and
WHEREAS, the Company and the Optionee
desire that the Optionee be compensated for originating the
Financing by the vesting of the options granted
hereby.
NOW THEREFORE, the Company and the
Optionee hereby agree as follows:
1.
Grant of Option.
The
Company hereby grants to the Optionee a stock option to purchase a
total of 400,000 shares of the Company's Common Stock, par value
$.001 per share (the “Common
Stock”), at $.04 (four cents) per share (the
“Exercise
Price”). Such option shall become fully vested and
exercisable on December 28, 2017.
2.
Term.
This
option shall expire on January 2, 2023 or such earlier date as
otherwise provided for herein (the “Termination Date”).
3.
Characterization of Options.
The
option granted pursuant to this Agreement is intended to constitute
a non-qualified option, subject to §83 of the Internal Revenue
Code of 1986, as amended (the “Code”).
4.
Exercise of Options.
(a)
Subject to earlier
termination or cancellation as provided in this Agreement, this
Option may be exercised at any time on or after the date hereof, in
whole or in part.
(b)
To the extent
vested prior to the Termination Date, this option shall be
exercisable by written notice of such exercise, in the form
prescribed by the Board of Directors of the Company (the
“Board”), to the
Secretary or Treasurer of the Company at its principal office. The
notice shall specify the number of shares of Common Stock for which
the option is being exercised (which number, if less than all the
shares then subject to exercise, shall be 100,000 or a multiple
thereof) and shall be accompanied by payment (i) in cash or by
check in the amount equal to the Exercise Price multiplied by the
number of shares to be purchased upon exercise, or (ii) in such
other manner as the Board shall deem acceptable. No shares shall be
delivered upon exercise of any option until all laws, rules and
regulations which the Board may deem applicable have been complied
with.
(c)
The Optionee shall
not be considered a record holder of the Common Stock issuable
pursuant to this Agreement for any purpose until the date on which
the Optionee is actually recorded as the holder of such Common
Stock in the records of the Company.
(d)
In the event of death of the Optionee, this option may be
exercised, to the extent vested on the date of death, at any time
within twelve months following such date of death by the Optionee's
estate or by a person who acquired the right to exercise this
option by bequest or inheritance.
(e)
In no event shall this option be exercisable after the Termination
Date.
5.
Anti-Dilution Provisions.
(a)
If there is any
stock dividend, stock split, or combination of shares of Common
Stock, the number and amount of shares then subject to this option
shall be proportionately and appropriately adjusted; no change
shall be made in the aggregate purchase price to be paid for all
shares subject to this option, but the aggregate purchase price
shall be allocated among all shares subject to this option after
giving effect to the adjustment.
(b)
If there is any
other change in the Common Stock, including recapitalization,
reorganization, sale or exchange of assets, exchange of shares,
offering of subscription rights, or a merger or consolidation in
which the Company is the surviving corporation, an adjustment, if
any, shall be made in the shares then subject to this option as the
Board may deem equitable. Failure of the Board to provide for an
adjustment pursuant to this subparagraph prior to the effective
date of any Company action referred to herein shall be conclusive
evidence that no adjustment is required in consequence of such
action.
(c)
If the Company is
merged into or consolidated with any other corporation, or if it
sells all or substantially all of its assets to any other
corporation, then either (i) the Company shall cause provisions to
be made for the continuance of this option after such event, or for
the substitution for this option of an option covering the number
and class of securities which the Optionee would have been entitled
to receive in such merger or consolidation by virtue of such sale
if the Optionee had been the holder of record of a number of shares
of Common Stock equal to the number of shares covered by the
unexercised portion of this option, or (ii) the Company shall give
to the Optionee written notice of its election not to cause such
provision to be made and this option shall become exercisable in
full (or, at the election of the Optionee, in part) at any time
during a period of 20 days, to be designated by the Company, ending
not more than 10 days prior to the effective date of the merger,
consolidation or sale, in which case this option shall not be
exercisable to any extent after the expiration of such 20-day
period.
6.
Investment Representation; Legend on
Certificates.
The
Optionee agrees that until such time as a registration statement
under the Securities Act of 1933, as amended (the
“1933 Act”),
becomes effective with respect to the option and/or the stock, the
Optionee is taking this option and will take the stock underlying
this option, for his own account, for investment and not with a
view to the resale or distribution thereof. The Company shall have
the right to place upon the face of any stock certificate or
certificates evidencing shares issuable upon the exercise of this
option such legend as the Board may prescribe for the purpose of
preventing disposition of such shares in violation of the 1933 Act,
as now or hereafter provided.
7.
Non-Transferability.
This
option shall not be transferable by the Optionee other than by will
or by the laws of descent or distribution, and is exercisable
during the lifetime of the Optionee only by the
Optionee.
8.
Certain Rights Not Conferred by Option.
The
Optionee shall not, by virtue of holding this option, be entitled
to any rights of a stockholder in the Company.
9.
Expenses.
The
Company shall pay all original issue and transfer taxes with
respect to the issuance and transfer of shares of Common Stock
pursuant hereto and all other direct fees and expenses necessarily
incurred by the Company in connection therewith.
10.
Optionee’s Representation and Warranties.
Other Agreements. Optionee
represents and warrants that he has the full right and authority to
enter into this Agreement. Optionee further represents and warrants
that he is not obligated under any contract (including, but not
limited to, licenses, covenants or commitments of any nature) or
other agreement or subject to any judgment, decree or order of any
court or administrative agency which would conflict with his
obligation to use his best efforts to perform hereunder or which
would conflict with the Company’s business and operations as
presently conducted or proposed to be conducted. Neither the
execution nor delivery of this Agreement, nor the carrying on of
the Company’s business will conflict with or result in a
breach of the terms, conditions or provisions of or constitute a
default under any contract, covenant or instrument to which
Optionee is currently a party or by which Optionee is currently
bound.
11.
Miscellaneous.
(a) No Implied Rights. In no event
shall this option be exercisable after the Termination Date.
Nothing herein shall be deemed to create any
employment.
(b) Notice. All notices and other
communications under this Agreement shall (a) be in writing (which
shall include communications by telecopy), (b) be (i) sent by
registered or certified mail, postage prepaid, return receipt
requested, by facsimile, or (ii) delivered by hand, (c) be given at
the following respective addresses and facsimile numbers and to the
attention of the following persons:
(i)
if to the Company
at:
Infinite Group,
Inc.
000
Xxxxx’x Xxxxx, Xxxxx 000
Xxxxxxxxx, XX
00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
(ii)
if to Optionee, to
it at the address set forth below Investor’s signature on the
signature page hereof;
or at
such other address or facsimile number or to the attention of such
other person as the party to whom such information pertains may
hereafter specify for the purpose in a notice to the other
specifically captioned “Notice of Change of Address”,
and (d) be effective or deemed delivered or furnished (i) if given
by mail, on the fifth Business Day after such communication is
deposited in the mail, addressed as above provided, (ii) if given
by facsimile, when such communication is transmitted to the
appropriate number determined as above provided in this Section and
the appropriate answer back is received or receipt is otherwise
acknowledged, and (iii) if given by hand delivery, when left at the
address of the addressee addressed as above provided, except that
notices of a change of address, facsimile or telephone number,
shall not be deemed furnished, until received.
(c) Governing Law. This Agreement
shall be governed by, and construed in accordance with, the laws of
the State of New York without reference to conflicts of law
principles. With respect to any matters that may be heard before a
court of competent jurisdiction, the parties consent to the
jurisdiction and venue of the courts of Monroe County, New York or
of any federal court located in the Western District of New
York.
IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed by their respective duly
authorized representatives.
INFINITE
GROUP, INC.
By:
__/s/ Xxxxx
Villa___________________________
Xxxxx
Xxxxx, President
Date: December 28,
2017
Regarding: Option
agreement dated December 28, 2017 for 400,000 shares of the
Company’s Common Stock, par value $.001 per share, at the
Exercise Price of $.04 per share, I accept the terms of this
agreement.
___/s/ Xxxxx X.
Hoyen____________________________
Xxxxx
X. Xxxxx, Optionee
Date:
December 28, 2017
