50,000 SHARES EXERCISE PRICE: $2.00
STOCK OPTION AGREEMENT - XXXXXXXX
THIS STOCK OPTION AGREEMENT - XXXXXXXX (the "Option Agreement")
effective as of the 19th day of January, 1998, between THERMO-TILT WINDOW
COMPANY, herein referred to as the "CORPORATION", being incorporated under
the laws of the State of Delaware, maintaining its principal place of
business at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000; and XXXXXX X.
XXXXXXXX, herein referred to as "EMPLOYEE", of 000 X. Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the variety of services to be rendered by Employee, including
merger and acquisition structuring, negotiation and closing services, shall
represent an important and valuable aid to the conduct of the Corporation's
business enterprise, and as such Corporation deems it to be in the best
interests of the Corporation to hire Employee;
WHEREAS, in connection with the hiring of Employee, the Corporation has
entered into an Employment and Noncompetition Agreement - Xxxxxxxx dated January
19, 1998 (the "Employment Agreement"); and
WHEREAS, the Corporation desires to enter into this Option Agreement with
the Employee containing the terms and conditions hereinafter set forth, and to
grant to Employee stock options to purchase shares of the common stock of the
Corporation.
NOW, THEREFORE, in consideration of the promises and mutual agreements of
the parties herein contained, and for other good and valuable consideration, the
parties agree as follows:
1. GRANT OF OPTIONS. In consideration of the foregoing, the Corporation
hereby grants and issues to Employee the rights at the election of the Employee
(hereinafter referred to as the "Options") to purchase up to an aggregate of
50,000 shares of Common Stock, $.001 par value, of the Corporation (the "Common
Stock") at a price of $2.00 per share.
1.1 ANTI-DILUTION PROVISION. The number of shares of Common Stock
underlying the Options shall be proportionately increased in the event that the
Corporation causes to be issued additional shares in the form of a stock
dividend, stock splits, option exercise at less than book value (with the
exception of the exercise of options under (i) the Stock Option Agreement -
Xxxxxxxx, dated October 22, 1997, by and between the Corporation
and Employee; (ii) the Stock Option Agreement - Xxxxxxxx, dated October 22,
1997, by and between the Corporation and Xxxxx Xxxxxxxx, (iii) the Stock Option
Agreement - LD Capital, Inc., dated October 22, 1997, by and between the
Corporation and LD Capital, Inc. and (iv) the Stock Option Agreement - Xxxxxxxx,
dated October 22, 1997, by and between the Corporation and Xxxxxxx X. Xxxxxxxx)
or other such reclassification; or conversely, proportionately decreased in the
event of a reverse split or reclassification. In the event that stockholders of
the Corporation are granted the right to purchase additional shares from the
proceeds of a cash dividend by the Corporation, such event shall be treated as a
stock dividend as relates to the option.
2. VESTING OF OPTIONS. The Options shall vest as follows: (i) one-half
of the Options, representing 25,000 shares of Common Stock, shall vest upon the
execution of this Agreement; and (ii) one-half of the Options, representing
25,000 shares of Common Stock, shall vest on December 31, 1998.
3. EXCERCISEABILITY/EXPIRATION OF OPTIONS. Once vested, the Options
shall be exercisable, in whole or in part, at an exercise price of $2.00 per
share and shall expire at 3:00 p.m. Owensboro, Kentucky time on January 19,
2003. The Options may be exercised by giving written notice to the Corporation
to that effect. The Options evidenced hereby shall be exercisable by the
delivery to and receipt by the Corporation of: (i) this original Option
Agreement; (ii) a written Notice of Election to Exercise (the "Notice of
Election") in the form set forth on the Schedule I to Option Agreement, to this
Option Agreement, attached hereto and incorporated herein by reference,
specifying the number of shares to be purchased in not less than one thousand
(1,000) share denominations; and (iii) payment of the full purchase price,
either by federal funds wire transfer to the bank depository to be specified by
the Corporation or by certified check, U.S. funds, payable to the order of the
Corporation, or on such other terms as may be acceptable to the Corporation. If
the Notice of Exercise is for less than the total of 50,000 shares, and the time
for exercise has not expired, the Corporation shall provide the
Employee with a new or revised Option Agreement for the balance of the shares
then remaining unexercised, upon the same terms and conditions as stated herein.
4. TERMINATION OF OPTIONS. In the event Employee's employment is
terminated by the Company for "good cause" pursuant to Section 2.1(ii) of the
Employment Agreement or by Employee pursuant to Section 2.1(iii) of the
Employment Agreement, any and all Options which have not vested as of the
termination date shall immediately terminate and Employee shall lose all rights
to such options, subject to applicable law. Such Options which have vested as
of the termination date shall be exercisable in accordance with Section 3 of
this Option Agreement.
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5. REGISTRATION RIGHT. The Corporation represents that upon delivery to
and receipt by the Corporation of a written notice from Employee to the effect
below, the Corporation will use its best efforts to prepare, file, and maintain
with the appropriate regulatory authorities an effective Registration Statement
on Form S-8 (the "Form S-8"), or other applicable form, for the shares of its
Common Stock underlying the Options granted by this Option Agreement, such Form
S-8 to allow for the immediate resale of the shares subject to the Option
Agreement, but only at such time as the Corporation is in compliance with the
requirements to use the Form S-8 or other applicable form.
6. NOTICES. All notices required to be given by either party shall be in
writing and (i) delivered by hand, (ii) sent by recognized overnight courier, or
(iii) sent by registered or certified mail, return receipt requested, to the
party being noticed at the address set forth in the first paragraph of this
Option Agreement. Any notice to the Corporation shall be addressed to the
attention of the President. Either party may effect a change in such address by
a prior written notice.
7. BINDING ACCEPTANCE. By acceptance of this signed Option Agreement,
the Employee does hereby agree to be bound by all of the terms and conditions
set forth herein.
8. GOVERNING LAW. This Option Agreement shall be construed under the
laws of the Commonwealth of Kentucky.
9. TOTAL AGREEMENT. This Option Agreement is the entire agreement
between the parties hereto relating to the subject matter hereof. This Option
Agreement rescinds any and all prior agreements and understandings between the
parties with respect to the subject matter covered in this Option Agreement.
10. ASSIGNABILITY. This Option Agreement is not assignable by Employee.
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IN WITNESS WHEREOF, the Corporation has executed this Option Agreement by
its duly authorized corporate officer as of the date set forth above.
"Corporation"
THERMO-TILT WINDOW COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
------------------------------
Accepted by:
"Employee"
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
XXXXXX X. XXXXXXXX
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SCHEDULE I TO OPTION AGREEMENT
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NOTICE OF ELECTION TO EXERCISE
TO: Thermo-Tilt Window Company
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
The undersigned Purchaser hereby elects to purchase ____ shares (the "Shares")
of the common stock ($.001 par value) of Thermo-Tilt Window Company (the
"Corporation") pursuant to the terms of the Stock Option Agreement - Xxxxxxxx
(the "Options"), dated as of January 19, 1998, by and between the undersigned,
or his predecessor by assignment, and the Corporation, (which Options must be
surrendered with this Notice of Election To Exercise).
Payment in full (U.S. Funds) is hereby tendered in the aggregate sum of
$______________, which sum represents shares (maximum 50,000) times the per
share purchase price of $2.00 by:
( ) Certified Check or ( ) Federal Funds Wire Transfer to the
Corporation's depository bank in accordance with your prior written
instructions.
( ) By Delivery vs Payment at:
-------------------------------------
or Account #:
-----------------------------------
You are hereby requested to issue a certificate representing the shares in the
name(s), and to the address(es) as specified below:
Name:
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Street: Number of Shares:
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City: State: Zip:
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Social Security or Tax I.D. Number:
---------------------------------
Purchaser acknowledges that no formal memorandum, prospectus or offering
document of any kind has been delivered by the Corporation with specific regard
to the exercise of these Options. However, by virtue of the Purchaser's
employment relationship with, and activities on behalf of the Corporation,
sufficient business and other information has been made available by the
Corporation to enable Purchaser to fully evaluate the investment potential of
the Shares being acquired. The Corporation's representatives have provided
information and answered all material questions.
Date:
-------------------------, ------- --------------------------------
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If no registration statement as to the Options and the Shares is effective as of
the date of exercise, include the following paragraph:
The purchaser represents and warrants that it is purchasing the Shares for
investment and not with a view to distribution thereof and understands and
acknowledges that the Stock Certificate(s) representing the Shares shall bear
the following legend:
The shares represented by this certificate have
not been registered or qualified for sale under
the Securities Act of 1933, as amended (the "Act"),
or any state securities or blue sky laws, and may
not be sold, transferred or otherwise disposed of
except pursuant to an exemption from registration
or qualification thereunder. The Corporation may
require, as a condition to transfer of this
certificate, an opinion of counsel satisfactory to
the Corporation to the effect that such transfer
will not be in violation of the Act or any such laws.
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