EXHIBIT 4.2
E. KHASHOGGI INDUSTRIES
STOCK OPTION AGREEMENT
I. NOTICE OF STOCK OPTION GRANT
OPTIONEE:
You have been granted an option to purchase Common Stock of EarthShell
Container Corporation, a Delaware corporation ("ECC"), subject to the terms of
this Option Agreement, as follows:
Grant Number: No. ________
Date of Grant: July 1, 1994
Exercise Price per Share: $700.00
Total Number of Shares Granted:
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Total Exercise Price: $
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Type of Option: Nonstatutory Stock Option
Term/Expiration Date: July 31, 2003
VESTING SCHEDULE:
This Option shall become exercisable in one or more installments, in the
amounts and on the dates set forth below:
25% after 1 year, 25% after 2 years, and 50% after 3 years from the Date of
Grant.
TERMINATION PERIOD:
This Option may be exercised for six months after termination of employment
or consulting relationship, or such longer period as may be applicable upon
death or Disability of Optionee as provided herein, but in no event later than
the Term/Expiration Date as provided above.
II. AGREEMENT
1. GRANT OF OPTION. X. Xxxxxxxxx Industries, a California general
partnership (the "Company"), hereby grants to the Optionee named in the Notice
of Grant (the "Optionee"), an option (the "Option") to purchase the total number
of shares of Common Stock (the "Shares") of ECC set forth in the Notice of
Grant, at the exercise price per share set forth in the Notice of Grant (the
"Exercise Price") subject to the terms, definitions and provisions this
Agreement.
2. EXERCISE OF OPTION. This Option shall be exercisable during its
term in accordance with the Exercise Schedule set out in the Notice of Grant
except as provided as follows:
(i) RIGHT TO EXERCISE.
(a) This Option may not be exercised for a fraction of a
share.
(b) In the event of Optionee's death, disability or other
termination of employment, the exerciasblility of the Option is governed by
Sections 5, 6, and 7 below, subject to the limitation contained in subsection
2(i)(c).
(c) In no event may this Option be exercised after the date
of expiration of the term of this Option as set forth in the Notice of Grant.
(ii) METHOD OF EXERCISE. This Option shall be exercisable by
written notice (in the form attached as Exhibit A) which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised, and such other representations and agreements as
to the holder's investment intent with respect to such shares of Common Stock
as may be required by Company. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the
Secretary or other appropriate official of the Company. The written notice
shall be accompanied by payment of the Exercise Price. This Option shall be
deemed to be exercised upon receipt by the Company of such written notice
accompanied by the Exercise Price.
No Shares will be issued pursuant to the exercise of an Option unless
such transfer and such exercise shall comply with all relevant provisions of
law and the requirements of any stock exchange upon which the Shares may then
be listed. Assuming such compliance, for income tax purposes the Shares shall
be considered transferred to the Optionee on the date on which the Option is
exercised with respect to such Shares.
3. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable
pursuant to the exercise of this Option have not been registered under the
Securities Act of 1933, as amended, at the time this Option is exercised,
Optionee shall, if required by Company, concurrently with the exercise of all
or any portion of the Option, deliver to the Company his or her Investment
Representation Statement in the form attached hereto as Exhibit B, and shall
read the applicable rules of the Commissioner of Corporations attached to
such Investment Representation Statement.
4. METHOD OF PAYMENT. Payment of the Exercise Price shall be by any
of the following, or a combination thereof, at the election of the Optionee:
(i) cash; or
(ii) check; or
(iii) promissory note (as agreed to by the Company); or
(iv) surrender of other shares of Common Stock of ECC which are
owned by the Optionee and have a fair market value on the date of surrender
equal to the Exercise Price of the Shares as to which the Option is being
exercised.
5. TERMINATION OF RELATIONSHIP. In the event of termination of
Optionee's Continuous Status as an Employee or Consultant of the Company,
Optionee may, to the extent otherwise so entitled at the date of such
termination (the "Termination Date"), exercise this Option during the
Termination Period set out in the Notice of Grant. To the extent that Optionee
was not entitled to exercise this Option at the date of such termination, or if
Optionee does not exercise this Option within the time specified herein, the
Option shall terminate.
6. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section
5 above, in the event of termination of Optionee's Continuous Status as an
Employee or Consultant of the Company as a result of total and permanent
disability (as defined in Section 22(e)(3) of the Internal Revenue Code),
Optionee may, but only within twelve (12) months from the date of termination of
employment (but in no event later than the date of expiration of the term of
this Option as set forth in Section 9 below), exercise the Option to the extent
otherwise so entitled at the date of such termination. To the extent that
Optionee was not entitled to exercise the Option at the date of termination, or
if Optionee does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
7. DEATH OF OPTIONEE. In the event of termination of Optionee's
Continuous Status as an Employee or Consultant of the Company as a result of the
death of Optionee, the Option may be exercised at any time within twelve (12)
months following the date of death (but in no event later than the date of
expiration of the term of this Option as set forth in Section 9 below), by
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent the Optionee could exercise
the Option at the date of death.
8. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred
in any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by him/her. The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
9. TERM OF OPTION. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the terms of this Agreement.
10. TAX CONSEQUENCES. Set forth below is a brief summary as of the
date of this Option of some of the federal and California tax consequences of
exercise of this Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING
OF THE SHARES.
(i) EXERCISE OF NONSTATUTORY STOCK OPTION. There may be a regular
federal income tax liability and California income tax liability upon the
exercise of the Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the fair market value of the Shares on the date of exercise over the
Exercise Price. If Optionee is an employee, the Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(ii) DISPOSITION OF SHARES. In the case of an nonqualified stock
option, if Shares are held for at least one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
and California income tax purposes
X. Xxxxxxxxx Industries,
a California Partnership
By: X. Xxxxxxxxx Holdings, L.P.
Its Managing General Partner
By: X. Xxxxxxxxx Industries, Inc.
General Partner of X. Xxxxxxxxx
Holdings, L.P.
By:
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Xxxxx Xxxxxxxxx, President
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE
OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR EMPLOYMENT AT THE WILL
OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR
ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT
NOTHING IN THIS AGREEMENT, SHALL CONFER UPON OPTIONEE
ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY OF THE
COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH HIS OR HER RIGHT OR THE
COMPANY'S RIGHT TO TERMINATE HIS OR HER EMPLOYMENT OR CONSULTANCY AT ANY
TIME, WITH OR WITHOUT CAUSE.
Optionee hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option
and fully understands all provisions of the Option. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or intepretations of the
Company upon any questions arising under this Option.
Dated:
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Optionee
STOCK OPTION AMENDMENT AGREEMENT
This Stock Option Amendment Agreement (the "Agreement"), is made effective
as of February 15, 1995, by and between "Optionee" ("Optionee") and X. Xxxxxxxxx
Industries, a California general partnership (the "Company").
Whereas, the Company has granted to Optionee an option to purchase common
stock of Earthshell Container Corporation, a Delaware corporation ("ECC"),
pursuant to a Stock Option Agreement (the "Option Agreement") by and between the
Company and Optionee, dated July 1, 1994; and more specifically identified as
Grant No. ("Grant").
WHEREAS, the parties desire to amend certain provisions of the Option
Agreement;
NOW, THEREFORE, in consideration of the premises set forth herein and for
such other good and valuable consideration the receipt and sufficiency is hereby
acknowledged, the parties hereto agree as follows:
1. The term "Termination Period" as defined under Section I of the Option
Agreement is hereby amended in its entirety to read as follows:
TERMINATION PERIOD:
This Option may be exercised for six months after the termination
of a continuous relationship with the Company as an employee and/or
consultant, as applicable, or such longer period as may be applicable
upon death or disability of Optionee as provided herein, but in no
event later than the Term/Expiration Date as provided above. For
example, if Optionee terminates employment with the Company and
immediately thereafter continues as a consultant of the Company, the
Termination Period will not commence because Optionee has a continuous
relationship with the Company, first as an employee and then as a
consultant.
2. Paragraph 5 of Section II of the Option Agreement is hereby amended in
its entirety to read as follows:
5. TERMINATION OF RELATIONSHIP. In the event of any termination
of Optionee's continuous relationship with the Company as an employee
and/or consultant, as applicable, Optionee may, to the extent otherwise so
entitled at the date of such termination (the "Termination Date"), exercise
the Option during, but in no event later than, the Termination Period set
out in the Notice of Grant. To the extent that Optionee was not entitled
to exercise this Option at the date of such termination, or if Optionee
does not exercise this Option within the time specified herein, the Option
shall terminate. Notwithstanding the foregoing, if Optionee's relationship
with the Company as an employee is terminated by the Company, other than
for cause, Optionee may, to the extent otherwise so entitled at the date of
such termination, exercise the Option at anytime after Optionee's
termination but in no event later than the date of expiration of the term
of this Option as set forth in Section 9 below.
3. All other terms and conditions of the Option Agreement shall continue
in full force and effect.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement by their duly authorized representative.
OPTIONEE: COMPANY:
E. KHASHOGGI INDUSTRIES, a California partnership
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[Optionee] By: X. Xxxxxxxxx Holdings, L.P.,
Its: Managing General Partner
By: X. Xxxxxxxxx Industries, Inc.
Its: General Partner of X. Xxxxxxxxx
Holdings, L.P.
By:
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Xxxxx Xxxxxxxxx, President
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