Exhibit 4.1 - Non-Qualified Stock Option Agreement between
Xxxxx X. Xxxxxx and Registrant dated January 28, 1997
THE OPTION AND COMMON STOCK REFERRED TO HEREIN HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, THE FLORIDA
SECURITIES ACT, AS AMENDED, OR THE LAWS OF ANY OTHER STATE, AND
ARE BEING GRANTED PURSUANT TO EXEMPTIONS FROM REGISTRATION UNDER
THAT ACT AND SUCH STATE LAWS. OPTIONS OR SHARES OF STOCK
ACQUIRED BY OPTIONEE MAY NOT BE SOLD OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE OPTIONS OR
SHARES OF STOCK UNDER THAT ACT OR SUCH STATE LAWS AS MAY BE
APPLICABLE, OR PURSUANT TO EXEMPTIONS FROM SAID REGISTRATION
UNDER SAID ACT AND SAID LAWS. FURTHER, THIS AGREEMENT CONTAINS
SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY OF THE OPTIONS AND
SHARES OF STOCK.
XXXXXX INDUSTRIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement")
effective as of the _______ day of January, 1997, by and among
XXXXXX INDUSTRIES, INC., a Florida corporation (the "Company")
and XXXXX X. XXXXXX (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has entered into an Agreement and Plan of
Merger with Smart Choice Holdings, Inc. pursuant to which the
Optionee is assigning to the Company certain (a) options and (b)
any claims Optionee may have under that certain employment
agreement dated May 23, 1995, for the options described herein.
NOW, THEREFORE, in consideration of the foregoing recital,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
1. Grant of Options. Subject to the terms and conditions
set forth in this Agreement, the Company hereby grants to
Optionee, the option to purchase from the Company 100,000 shares
of the Company's Class A Common Stock, $.01 par value ("Common
Stock"), at the exercise price per share of $8.75 per share (the
"$8.75 Option") and 50,000 shares of Common Stock at the exercise
price per share of $10.00 per share (the "$10.00 Option"). The
shares issuable on exercise of the $8.75 Option and the $10.00
Option are referred to herein as the "Option Shares". The $8.75
Option and the $10.00 Option shall be exercisable, in whole or in
part, for a period of five (5) years (the "Exercise Period"),
which period shall commence on the date of execution of this
Agreement. The $8.75 Option and the $10.00 Option are referred
to herein collectively as the "Options". None of the Options are
intended to be "incentive stock options" as defined in Section
422(b) of the Internal Revenue Code.
2. Termination of the Options.
(a) The Options shall terminate and no longer be
exercisable upon the occurrence of the following:
(i) In accordance with the expiration of the
Exercise Period set forth above;
(ii) Involuntary dissolution of the Company.
(b) Termination in the event of death, disability or
termination of status as an employee.
(i) If Optionee dies while an employee of the
Company or within three (3) months after termination of his
status as an employee because of his permanent disability (as
defined below), his Options may be exercised, to the extent that
the Optionee shall have been entitled to do so on the date of his
death, by the person or persons to whom the Optionee's right
under the Options passes by will or applicable law, or if no such
person has such right, by his executors or administrators, at any
time or from time to time, but not later than the expiration date
specified in Section 1 or three (3) months after Optionee's
death, whichever is earlier.
(ii) If Optionee's status as an employee of the
Company shall terminate because of his total disability, he may
exercise his Option to the extent that he shall have been
entitled to do so at the date of such termination, at any time or
from time to time, but not later than the expiration date
specified in Section 1 or three (3) months after termination of
employment, whichever date is earlier.
(iii) If Optionee's status as an employee of the
Company shall terminate (A) involuntarily other than for cause,
death, or total disability, all rights to exercise his Option, to
the extent that he shall have been entitled to do so at the date
of such termination, shall terminate at the expiration date
specified in Section 1 or three months after termination of
employment, whichever date is earlier.
(iv) If Optionee's status as an employee of the
Company shall terminate for cause (as defined below), all rights
to exercise his Options shall terminate at the date of such
termination.
(c) "Termination for cause" shall be defined as set
forth in the Employment Agreement between Company and Optionee
effective as of December 30, 1996. "Permanent disability" shall
be defined as set forth in the Employment Agreement between
Company and Optionee effective as of December 30, 1996.
3. Exercise. Optionee (or in the case of Optionee's death
or disability, the legal representative of Optionee) may exercise
the Options only by giving timely notice of the exercise of an
Option prior to the expiration or termination of the Exercise
Period to the Company at 0000 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000. Such notice shall state the number of
shares to be purchased which are attributable to the Option which
is being exercised, and shall be accompanied by the full purchase
price for such shares, payable in U.S. Dollars by certified check
or bank draft, unless the Company shall permit payment of the
purchase price in another manner.
4. Delivery of Option Shares. As soon as possible after
receipt by the Company of a timely notice of exercise of any of
the Options hereunder, of payment therefor, the Company shall
transfer to Optionee or his Legal Representative(s), as the case
may be, one or more certificate(s) for the number of shares with
respect to which the Options shall have been so exercised.
5. Restrictions upon Transfer.
(a) Neither the Optionee nor any other person or entity
shall have any interest in any specific asset or assets or stock
of the Company by reason of the granting of the Options. Any
attempt to assign or to transfer this Agreement or the Options
granted hereunder, whether voluntarily or involuntarily, by
operation of law or otherwise, shall immediately terminate this
Agreement, all the Options granted hereunder shall be of no
further force or effect and no interest or right hereunder shall
vest in any other person.
(b) Nothing in this Agreement shall be construed in
limitation of any restrictions upon transfer of any of the Option
Shares contained elsewhere, including any restrictions that may
be contained in the Certificate of Incorporation or the By-Laws
of the Company.
(c) Nothing in this Agreement shall be construed as a
modification of any existing agreements with respect to the gift,
sale, purchase, transfer, pledge, hypothecation, or other
disposition or encumbrance of the Option Shares between the
parties to this Agreement, or between or among either or both of
the parties to this Agreement and one or more persons not party
to this Agreement.
(d) The Optionee acknowledges that the certificate(s)
evidencing ownership of the Common Stock will be stamped or
otherwise imprinted on the face thereof with a legend in
substantially the following form:
"The shares represented by this Certificate
have not been registered under the federal
Securities Act of 1933, as amended (the
"Act") or any state securities act. No
sale, offer to sell or transfer of the shares
shall be made unless a registration statement
under the Act, or any applicable state
statute, with respect to the shares is then
in effect or an exemption from the
registration requirements of such Act or
state statute is then in fact applicable to
the shares."
6. Rights as Stockholder.
(a) Optionee shall have none of the rights of a
stockholder with respect to any of the Option Shares until any
Option granted herein shall have been exercised and until such
respective shares attributable to such Option shall have been
issued to Optionee.
(b) Nothing in this Agreement shall affect in any way
the rights or powers of the Company, or any parent or subsidiary
Company, or any of the directors or stockholders of any of the
Company, to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the
Company's capital structure or business, or any merger or
consolidation of the Company, or any issue of bonds, debentures,
preferred or prior preference stocks or other classes of
securities ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of the Company's assets or
business, or any grant of options to purchase securities of the
Company otherwise than under this Agreement, or to effect any
other corporate act or proceeding, whether of a similar character
or otherwise.
(c) If the outstanding shares of Common Stock of the
Company are increased, decreased, changed into or exchanged for a
different number or kind of shares or securities of the Company
or of another corporation or entity or shares of a different par
value or without par value through a recapitalization, stock
dividend, stock split, reverse stock split or a reorganization
under which the Company is not the surviving entity, an
appropriate and proportionate adjustment shall be made in the
number and/or kind of securities allocated to the Options,
without change in the aggregate Option Price applicable to the
unexercised portion of the outstanding Option but with a
corresponding adjustment in the Option Price for each share or
other unit of any security covered by the Option. No adjustment
shall occur under this Section 6 by virtue of the fact that the
Company purchases or sells Common Stock or any securities of the
Company for cash. No fractional shares shall be issued for any
such adjustment.
(d) In the event of the proposed dissolution or
liquidation of the Company, the Company shall cause the Board of
Directors of the Company to notify the Optionee at least fifteen
(15) days prior to such proposed action. To the extent it has
not been exercised during such fifteen (15) day period, these
Options will terminate as to any unexercised portion thereof
immediately prior to the consummation of such proposed action.
7. Representations. Optionee will acquire Optionee's
shares for Optionee's own account, for investment only and
without a view to resale or distribution except in compliance
with the Securities Act of 1933, as amended (the "Act"), and any
applicable state securities laws, and upon the acquisition of the
shares, Optionee will enter into such written representations,
warranties and agreements as the Company may request in order to
comply with the Act, any applicable state securities laws and
this Option Agreement.
8. Reservation. The Company agrees, at all times during the
term of the Options, to reserve and keep available such number of
shares of the Common Stock as will be sufficient to satisfy the
requirements of the Options.
9. Tax Consequences and Withholding. Optionee agrees that
the Company is not responsible for the tax consequences to
Optionee of the granting of the Options or its subsequent
exercise by Optionee, and that it is the responsibility of
Optionee to consult with Optionee's personal tax advisor
regarding all matters with respect to the tax consequences of the
granting of the Options and its exercise by Optionee.
10. General Provisions.
(a) Agreement to be Bound by Contract. This Agreement
shall be binding not only by the parties hereto, but also upon
their heirs, executors, administrators, successors or assigns.
The parties hereto agree for themselves and their heirs,
executors, administrators, successors or assigns, to execute any
instruments and to perform any acts which may be necessary or
proper to carry out the purposes of this Agreement.
(b) Amendment or Alteration. This Agreement may be
altered or amended, in whole or in part, at any time, only by a
written instrument setting forth such changes signed by all
parties hereto.
(c) Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any party.
(d) Notices. Any notices permitted or required
hereunder shall be delivered to the parties personally, by tele
copier, or by United States Mail, with postage prepaid, certified
or registered, return receipt requested, addressed to the
respective parties at the following addresses and telecopier
numbers:
If to Company: Xxxxxx Industries, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopier: (407)
269-9680
If to Optionee: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
or such other address as either party hereto shall notify the
other as provided herein. The date of service of any notice or
communication hereunder shall be the date of the hand delivery or
receipt of telecopy, or three (3) days after the mailing, if
mailed by certified mail, return receipt requested.
(e) Validity. In the event that any provision of this
Agreement shall be held to be invalid, the same shall not effect,
in any respect, the validity of the remainder of this Agreement.
(f) Integrated Agreement. This Agreement and all
agreements executed in accordance with the terms hereof
constitute the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof, and
there are no agreements, understandings, restriction,
representations or warranties among the parties other than those
set forth herein.
(g) Attorneys' Fees. In the event any litigation
including any appeals, is instituted in connection with the
breach, enforcement or interpretation of this Agreement,
including, without limitation, any action seeking declaratory
relief, equitable relief, injunctive relief, or damages, the
prevailing party shall be entitled to recover from the non-
prevailing party all costs, expenses and attorneys' fees incurred
in connection therewith, including any costs of collection.
(h) State Law Governing Contracts. This Agreement
shall be governed by the laws of the State of Florida.
(i) No Construction Against Drafting Party. Each
party to this Agreement expressly recognizes that it results from
a negotiated process in which each party was given the
opportunity to consult with counsel and contributed to the
drafting of this Agreement. Given this fact, no legal or other
presumptions against the party drafting this Agreement concerning
its construction, interpretation or otherwise accrue to the
benefit of any party to this Agreement and each party expressly
waives the right to assert such a presumption in any proceedings
or disputes connected with, arising out of, or involving this
Agreement.
[THIS AREA INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Non-
Qualified Stock Option Agreement under seal as of the date first
above written.
THE COMPANY:
XXXXXX INDUSTRIES, INC.
By:
Print Name:
As Its:
OPTIONEE:
Xxxxx X. Xxxxxx
SS#:
