Exhibit 10.8
STOCK OPTION AGREEMENT
AGREEMENT made as of this 28th day of December 2000 by and between THE
XXXXXX BIOMECHANICS GROUP, INC., a New York corporation (the "COMPANY"), and
XXXXXX X. XXXXXX (the "OPTIONEE").
WHEREAS, the Optionee has on this date become employed by the Company
and is expected to provide valuable services to the Company; and
WHEREAS, the Company desires to reward such services and encourage
the Optionee's continued dedication and to afford the Optionee the
opportunity to acquire stock ownership in, or otherwise share in the
appreciation of the stock of, the Company so that the Optionee may
have a direct proprietary interest in the Company's success.
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. GRANT OF OPTION. (a) Upon the terms and subject to the
conditions set forth herein, the Company hereby grants to the Optionee,
during the period commencing on the date of this Agreement and, unless
earlier terminated pursuant to Section 5 or Section 6 hereof, ending ten (10)
years from the date hereof (the "EXPIRATION DATE"), the right and option (the
"OPTIONS") to purchase from the Company, at a price of $1.525 per share,
175,000 shares of the Company's Common Stock, par value $.02 per share (the
"COMMON STOCK"), pursuant to the Company's 1992 Stock Option Plan, as amended
(the "1992 PLAN"). Notwithstanding the foregoing, if the Optionee has not
taken the office of President of the Company on or before March 31, 2001,
then the Options shall terminate on such date, and the Optionee shall have no
further rights under this Agreement. The Options are intended to qualify
under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as
amended (the "CODE"), as an incentive stock option.
(b) Nothing in this Agreement shall confer upon the
Optionee any right to continue in the employ of the Company or interfere in any
way with the right of the Company to terminate or otherwise modify the terms
of the Optionee's employment.
2. VESTING AND EXERCISE OF OPTIONS. The Options shall vest
(subject to acceleration and termination under the provisions hereof) in three
installments as follows: options as to 58,333 shares shall vest on each of
December 31, 2001 and December 31, 2002 and Options for 58,334 shares shall vest
on December 31, 2003.
3. METHOD OF EXERCISING OPTIONS. The Optionee may exercise the
Options by delivering to the Company (i) a written notice stating the number of
shares of Common Stock that the Optionee has elected to purchase at that time
from the Company and (ii) full payment of the purchase price of the shares of
Common Stock then to be purchased.
Payment of the exercise price for the shares of Common Stock upon
any exercise of the Options may be made by check payable to the order of the
Company; provided, however, that in
Payment of the exercise price for the shares of Common Stock upon any
exercise of the Options may be made by check payable to the order of the
Company; provided, however, that in the event that the Optionee enters into
an Employment Agreement with the Company and Optionee's employment is terminated
without Cause or the Optionee terminates his employment for Good Reason (as and
if such capitalized terms are defined in his Employment Agreement with the
Company), subject to Sections 5 and 6 hereof, the Optionee shall have the right
to pay the exercise price for the shares of Common Stock by delivery of shares
of Common Stock of the Company or surrender of Options (having a fair market
value equal to the purchase price of the Common Stock issuable upon exercise of
the Options over the applicable exercise price) duly endorsed in blank or
accompanied by appropriate stock powers, together with such amount as the
Company shall, in its sole discretion, deem necessary to satisfy any tax
withholding obligation or tax arising by reason of the transfer of such shares
of Common Stock ("CASHLESS EXERCISE").
In connection with any Cashless Exercise, only full shares of Common
Stock of the Company with an aggregate fair market value not exceeding the
exercise price will be accepted in payment, and any portion of the exercise
price which is in excess of such aggregate fair market value must be paid in
cash or by certified or bank cashier's check payable to the order of the
Company, it being understood that the Company shall not be required to pay
cash in exchange for tendered certificates. If the tendered certificate(s)
evidence more shares of Common Stock than are accepted for payment, an
appropriate replacement certificate shall be issued to the Optionee for the
number of excess shares of Common Stock.
4. ISSUANCE OF COMMON STOCK AND PAYMENT OF CASH UPON EXERCISE OF
OPTIONS. As promptly as practicable after receipt of such written notification
of the Optionee's election to exercise the Options and full payment of such
exercise price and any applicable withholding taxes, the Company shall issue or
transfer to the Optionee the number of shares of Common Stock with respect to
which the Options have been so exercised and shall deliver to the Optionee a
certificate or certificates therefor, registered in the Optionee's name.
5. RETIREMENT, DEATH OR DISABILITY OF THE OPTIONEE. If the
employment of the Optionee shall terminate for any reason, other than "Cause" by
the Company or voluntarily by the Optionee without "Good Reason" (as such terms
are defined in Optionee's Employment Agreement with the Company), the Optionee
(or in the case of Optionee's death or disability his executor, administrator or
personal representative) shall have the right to exercise the Options which have
vested hereunder for the three (3) month period following such termination to
the extent that the Options were vested at the date of Retirement or death.
Upon a termination by the Company for "Cause", or a voluntary termination by
the Optionee without "Good Reason," all vested but unexercised Options and all
unvested Options shall, upon such termination, lapse and be of no further
effect.
6. ACCELERATION OF VESTING IN CERTAIN CIRCUMSTANCES.
Notwithstanding the vesting provisions of Section 2:
(a) if the Optionee's employment terminates by reason of
death or disability, a portion of the Options which would next have vested under
the schedule set forth in Section 2 will vest, pro rata in proportion to the
number of days in the calendar year expired through the date of
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termination and the remaining options shall lapse and be of no further effect;
and
(b) if the Optionee is terminated without Cause or
voluntarily terminates his employment for Good Reason (as and if said
capitalized terms are defined in his Employment Agreement with the Company),
all of the Options which are not then vested (or such portion thereof as the
Executive may elect) shall vest.
7. SECURITIES MATTERS. (a) Notwithstanding anything herein to the
contrary, the Optionee's ability to exercise this Option is subject to timely
shareholder approval of the increase in the number of shares of Common Stock
underlying the 1992 Plan (the "Increase") approved by the Board of Directors on
the date hereof.
(b) The shares of Common Stock issued pursuant to the
terms of this Agreement shall represent fully paid and non-assessable shares
of Common Stock. The Company represents, warrants and covenants that (i) the
Company has previously prepared and filed with the SEC a registration
statement on Form S-8 under the Securities Act of 1933, as amended (the
"ACT"), registering the sale of shares under the 1992 Plan, which
registration is currently effective, (ii) the Company shall as promptly as
practicable, after Optionee becomes President of the Company and the Increase
is approved by the shareholders of the Company, amend such registration on
Form S-8 to include the shares of Common Stock issuable pursuant to the terms
of this Agreement, and (iii) the Company shall maintain the effectiveness of
the registration statement, as so amended, until all of such Shares may be
sold without restriction under the Act.
8. THE OPTIONEE. Whenever in any provision of this Agreement
reference is made to the Optionee, under circumstances where such reference
should logically be construed to apply to the executors, administrators,
personal representatives or a person or persons to whom the Options may be
transferred by will or by the laws of descent and distribution, the reference
to the Optionee shall be deemed to include such person or persons.
9. NON-TRANSFERABILITY. The Options are not transferable by the
Optionee otherwise than by applicable laws of descent and distribution and,
except as set forth herein, are exercisable during the Optionee's lifetime only
by the Optionee or the legally appointed administrator of his affairs. No
assignment or transfer of the Options, or of the rights represented thereby,
whether voluntary or involuntary, by operation of law or otherwise (except by
will or the laws of descent and distribution), shall vest in the assignee or
transferee any interest or right herein whatsoever, but immediately upon such
assignment or transfer the Options shalt terminate and become of no further
effect.
10. RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any share of Common Stock covered by the Options
until the Optionee shall have become the holder of record of such share of
Common Stock, and no adjustment shall be made for dividends or distributions or
other rights in respect of such share of Common Stock for which the record date
is prior to the date upon which the Optionee shall become the holder of record
thereof.
11. ADJUSTMENT FOR RECAPITALIZATION, MERGER, ETC. The aggregate
number of shares of Common Stock that may be purchased pursuant to the Options,
the number of shares of Common
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Stock covered by the Options and the price per share shall be appropriately
adjusted for any increase or decrease in the number of outstanding shares of
Common Stock resulting from a stock split or other subdivision or consolidation
of shares of Common Stock or for other capital adjustments or payments of stock
dividends or distributions or other increases or decreases in the outstanding
shares of Common Stock effected without receipt of consideration by the Company.
In the event of a liquidation of the Company, or a merger,
reorganization or consolidation of the Company with any other corporation in
which the Company is not the surviving corporation or the Company becomes a
wholly owned subsidiary of another corporation, any unexercised Options shall
be deemed canceled unless the surviving corporation in any such merger,
reorganization or consolidation elects to assume the Options or to issue
substitute options in place thereof. Notwithstanding the foregoing, the
Company shall deliver written notice to Optionee of its intent to effect such
liquidation, merger or consolidation, following which the Optionee shall have
the right, exercisable during a ten (10) day period ending on the fifth day
prior to such liquidation, merger or consolidation, to exercise the Options
in whole or in part. Adjustments under this Section 11 shall be made in a
proportionate and equitable manner by the Board of Directors (or Committee),
whose determination as to the nature of the adjustments shall be made, and
the extent thereof, shall be final, binding and conclusive. In the event that
a fraction of a share results from the foregoing adjustment, said fraction
shall be eliminated and the price per share of the remaining shares subject
to the Options adjusted accordingly.
12. COMPLIANCE WITH LAW. Notwithstanding any of the provisions
hereof, except in connection with a Change of Control (as and if such
capitalized terms are defined in Optionee's Employment Agreement with the
Company) or the dissolution or liquidation of the Company, the Optionee
hereby agrees that the Optionee will not exercise the Options, and that the
Company will not be obligated to issue or transfer any shares of Common Stock
to the Optionee hereunder, if the exercise hereof or the issuance or transfer
of such Common Stock shall constitute a violation by the Optionee or the
Company of any provisions of any law or regulation of any governmental
authority.
13. NOTICE. Any notice or other communications required or
permitted hereunder shall be in writing and shall be deemed effective (a)
upon personal delivery, if delivered by hand, (b) upon receipt of electronic
confirmation, if sent by facsimile transmission, (c) three (3) days after the
date of deposit in the mails, if mailed by certified or registered mail
(return receipt requested), or (c) on the next business day, if mailed by an
overnight mail service to the parties,
if to the Company: if to the Optionee:
The Xxxxxx Biomechanics Group, Inc. Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxx Xxxx 31 The Birches
Xxxx Xxxx, XX 00000 Xxxxxx Xxxxxxx, XX 00000
Attn.: Chief Financial Officer
Copies of all notices to the Company or the Optionee under this Agreement shall
be sent to:
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Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address or facsimile number as either party may from time to
time specify to the other.
14. ENTIRE AGREEMENT. This Agreement sets forth the complete
understanding of the Company and the Optionee with respect to the subject matter
hereof and supersedes all prior understandings, whether oral or written.
15. CONFLICT WITH 1992 PLAN. This Agreement is subject to all of
the terms and provisions of the 1992 Plan and the Optionee shall be entitled,
with respect to the Options, to all of the rights and benefits provided by the
1992 Plan. In the event that there is any inconsistency between the provisions
of this Agreement and of the 1992 Plan, other than Section 9 hereof, the
provisions of the 1992 Plan shall govern.
16. GOVERNING LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York (without
giving effect to the principles of conflicts of law). The Company and the
Optionee each agrees that the federal or state courts located in the State of
New York shall have exclusive jurisdiction in connection with any dispute
arising out of this Agreement.
17. SEVERABILITY. If any provision of this Agreement, or any part
of any of them, is hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the the remainder of the covenants or
rights or remedies which shall be given full effect without regard to the
invalid portions. If any of the covenants set forth herein is held to be invalid
or unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision and in its
reduced form said provision shall then be enforceable.
18. HEADINGS. The headings of this Agreement are for convenience
of reference only and shall not affect in any manner any of the terms and
conditions hereof.
19. MODIFICATIONS AND WAIVERS. No term, provision or condition of
this Agreement may be modified or discharged unless such modification or
discharge is authorized by the Board and is agreed to in writing and signed by
the parties hereto. No waiver by either party hereto of any breach by the other
party hereto of any term, provision or condition of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
THE XXXXXX BIOMECHANICS GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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