EXHIBIT 10.130
EMPLOYEE STOCK OPTION AGREEMENT
This Employee Stock Option Agreement ("Agreement") is made and entered into
effective as of the 28/th/ day of August, 1998 (the "Effective Date"), by and
between LA-MAN CORPORATION, a Nevada corporation (the "Company"), and XXXXXXXX
X. XXXXXX, an employee of the Company or one or more of its subsidiaries
("Employee"):
RECITALS:
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A. The Company has previously adopted the La-Man Corporation 1994 Amended
and Restated Employee and Consultant Stock Compensation Plan, as amended by
Amendment No. 1 dated as of September 1, 1995 and Amendment No. 2 dated as of
August 29, 1997 (the "1994 Plan");
B. The Company has delivered to Employee a copy of the 1994 Plan,
Employee has read and understands the provisions of such plan, and has consulted
with his own legal and other professional advisors regarding the provisions of
such plan or has voluntarily determined not to seek such separate professional
advice;
C. Employee, as an employee of the Company or one or more of its
subsidiaries, is eligible as of the date hereof to participate in the 1994 Plan,
and the Company desires to grant to Employee certain options under the 1994 Plan
to purchase from the Company newly issued shares of common stock, par value
$.001 per share, of the Company ("Common Stock"), to induce Employee to continue
to pursue the best interests of the Company and to provide an incentive to
Employee to increase his or her equity interest in the Company, all on the terms
and conditions hereinafter stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Company and Employee hereby agree as follows:
1. INCORPORATION BY REFERENCE OF 1994 PLAN. The terms and provisions of
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the 1994 Plan, to the extent relevant to options granted hereunder and
thereunder, are incorporated by reference herein and, in addition to the terms
and conditions stated in this Agreement, terms and conditions of the 1994 Plan
shall apply to the applicable options granted to Employee hereunder to the same
extent and with the same force and effect as if fully set forth in this
Agreement.
2. GRANT OF OPTIONS.
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2.1 Grant of Options. The Company hereby grants to Employee the following
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options (collectively, the "Options") to purchase from the Company the following
number of newly issued shares of Common Stock ("Option Shares") at the exercise
price and prior to the expiration date ("Expiration Date") set forth below:
Non-qualified Options under the 1994 Plan for 75,000
shares of Common Stock exercisable at the price of
$3.56 per share, the fair market value per share of the
Common Stock on August 28, 1998, and, subject to
Section 3.2 hereof, expiring on August 28,2008.
2.2 Applicability of 1994 Plan. This Agreement is executed pursuant to the
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1994 Plan, and the Options granted to Employee hereunder and the obligations of
the Company with respect to the issuance of any Option Shares upon any exercise
of the Options are and shall be subject to all applicable terms and provisions
of the 1994 Plan. To the extent any applicable provisions of the 1994 Plan may
be deemed to conflict with the provisions of this Agreement, the provisions of
the 1994 Plan shall be deemed to govern.
3. EXERCISE OF OPTIONS.
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3.1 Conditions to Exerciseability. For purposes of this Section 3.1
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"Debentures" means the Company's $3,500,000 aggregate principal amount 8.75%
Convertible Debentures due March 2, 2005. Options shall not be exerciseable
unless and until all of the Debentures are fully paid at or prior to maturity,
or all the Debentures are fully converted into shares of Common Stock, or the
terms and provisions of the Debentures are amended or otherwise modified so as
to permit exercise of the Options without any adjustment to the conversion price
of the Debentures ("Debentures Amendment"). The Options shall become fully
exerciseable on the first (1st) business day following the earlier of:
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(a) the effective date of a Debentures Amendment;
(b) the effective date of conversion of all of the Debentures into
Common Stock; or
(c) the payment in full of all principal of, and accrued interest on,
the Debentures.
3.2 Modification of Option Term. When the Options become exerciseable as
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provided in Section 3.1, they shall remain exerciseable for a period of time
equal to the earlier of :
(a) the date five (5) years following the date such Options become
exercisable; or
(b) the expiration date provided in Section 2.1.
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3.2 Rate of Exercise. Options shall be exercisable by Employee, in the
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manner specified hereinbelow, in increments of not less than 1,000 Option
Shares. In no event shall the Company be required to issue any fractional Option
Shares.
3.3 Manner of Exercise. Employee may exercise the Options at any time
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prior to their respective Expiration Dates, by delivering notice to the Company
in accordance with the provisions of Section 10 hereof specifying the number of
Option Shares to be purchased and accompanied by cash, bank cashier's check or
immediately available wired funds, or check drawn on Employee's bank payable to
or to the order of the Company, in the amount of the per share exercise price of
the Options so exercised multiplied by the applicable number of Option Shares.
Options shall not be exercisable except in accordance with and in the manner
provided in this Section 3.2. The Company shall issue and deliver or cause to be
issued and delivered a certificate or certificates representing the applicable
number of Option Shares upon the exercise of any Options hereunder, upon
satisfaction of the following conditions:
(a) The obtaining of any approval or other clearance from any federal
or state governmental agency which the Company shall in its sole discretion
determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time following the
exercise of the Options as the Company may from time to time establish for
reasons of administrative convenience.
4. NONTRANSFERABILITY OF OPTIONS. Options granted hereunder shall not be
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sold, transferred, assigned, pledged, hypothecated or otherwise disposed of in
any way (by operation of law or otherwise) without the prior written approval of
the Company. Any attempt to sell, transfer, assign, pledge, hypothecate, or
otherwise dispose of any Options or any rights in connection therewith contrary
to the provisions of this Agreement or upon the levy of any attachment or
similar process upon such Options or rights shall cause such Options and rights
to immediately become null and void.
5. SHAREHOLDER RIGHTS. Employee shall not be, nor have any of the rights
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or privileges of, a shareholder of the Company in respect of any Option Shares
issuable upon exercise of any Options unless and until such Option Shares shall
have been fully paid for and a stock certificate or certificates registering
such Option Shares in the name of Employee shall have been duly issued. Employee
covenants and agrees to deliver to the Company or its registrar and transfer
agent any and all documents and instruments required in connection with the
issuance of any stock certificates representing Option Shares.
6. ANTI-DILUTION. In the event of any stock dividend, stock split,
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exchange of shares, recapitalization, reorganization, merger, consolidation,
rights offering or other change of corporate structure involving the Company's
Common Stock, appropriate and proportionate adjustments shall be made in the
number of Option Shares issuable upon exercise of the Options and,
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if appropriate, the applicable exercise prices therefor. In the event of any
such adjustment, the Company shall deliver to Employee in the manner specified
in Section 10 hereof a brief written summary of such event and the effect
thereof upon the number of Option Shares issuable upon exercise of any Options
and the effect, if any, on the exercise price of any such Options.
7. RESTRICTIONS ON TRANSFER OF OPTION SHARES. Unless and until the Option
Shares shall have been registered under the applicable provisions of the
Securities Act of 1933, as amended (the "Securities Act"), and any applicable
state securities laws, Employee shall not sell, transfer or otherwise dispose of
any Option Shares or any interest therein unless and until the Option Shares
have been so registered or Employee shall have delivered or cause to be
delivered to the Company an opinion of counsel (with the identity of such
counsel and the substance of such opinion satisfactory to the Company) to the
effect that such intended sale, transfer or disposition does not violate the
provisions of the Securities Act or any applicable state securities laws.
Without limiting the foregoing, if a registration with respect to the Option
Shares is not in effect under the Securities Act, Employee further agrees that
the Company shall have the right to require, as a condition to the exercise of
the Option, that the Employee represent to the Company in writing that the
Option Shares to be received upon exercise of the Option will be acquired by
Employee for investment and not with a view to distribution. Upon exercise of
any Options:
(a) If Employee is subject to the reporting requirements under
Section 16(a) of the Securities Exchange Act of 1934 (the "Exchange Act"),
Employee shall timely furnish to the Company a copy of each Form 3, Form 4
or Form 5 required to be filed by Employee with the Securities and Exchange
Commission (the "SEC") and will timely file with the SEC all reports
required to be file by Employee;
(b) Employee shall thereafter report all sales of Option Shares to
the Company in writing on the form prescribed from time to time by the
Company. Unless and until the Option Shares are registered under the
Securities Act and applicable state securities laws, certificates
representing any Option Shares may be imprinted with legend conditions
reflecting federal and state securities laws restrictions and conditions
and the Company may comply therewith by issuing "stop transfer"
instructions to its transfer agents and registrars without liability.
8. RELEASE BY EMPLOYEE. In consideration of the Options granted hereunder
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to Employee, Employee, for himself and his successors, assigns, heirs,
executors, administrators, legal representatives and all persons or entities
acting on Employee's behalf or who might claim through Employee, hereby
completely, unconditionally, voluntarily and knowingly release and forever
discharges the Company and its predecessors, successors, assigns, affiliates,
officers, directors, shareholders, employees, agents and representatives and all
persons who might be liable through any of the foregoing, of and from any and
all claims, demands, damages, actions, causes of action or suits at law and
equity, of whatsoever kind or nature, for or on account of or in connection with
any claim that the Company is obligated to issue, grant or deliver or cause to
be issued, granted or delivered to or for the account or benefit of Employee any
shares of capital stock, warrants, options (other than the Options granted
herein) or other securities of any kind or nature exchangeable for or
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convertible into securities of the Company, unless and only to the extent such
obligation is expressed in a written agreement duly signed on behalf of the
Company.
9. INFORMATION TO BE FURNISHED BY EMPLOYEE. Upon or prior to the exercise
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of any Option, Employee shall furnish to the Company in writing such information
or assurances as, in the Company's opinion, may be necessary to enable the
Company to comply fully with the Securities Act and the rules and regulations
thereunder and any other applicable federal or state statutes, rules and
regulations. The Company shall take such steps as may be necessary to comply
with all applicable laws and regulations, including the rules and regulations of
the SEC.
10. NOTICES. All Option exercise notices and other notices and
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communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by telex or telecopy (and promptly confirmed by
mail) to the parties as follows (or at such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notices of changes of address shall only be effective upon receipt):
If to the Company to:
La-Man Corporation
Attention: J. Xxxxxxx Xxxxxxxx, President
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to Employee to:
Xxxxxxxx X. Xxxxxx
0000 Xxx Xxxxxx
Xxxxxx Xxxx, XX 00000
11. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. GOVERNING LAW. This Agreement shall be governed by, and construed and
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interpreted in accordance with and under, the laws of the State of Florida. If a
court or other body of competent jurisdiction determines that any term or
provision of this Agreement is excessive in scope, such term or provision shall
be adjusted rather than voided and interpreted so as to be enforceable to the
fullest extent possible, and all other terms and provisions of this Agreement
shall be deemed valid and enforceable to the fullest extent possible.
13. BINDING EFFECT; PARTIES IN INTEREST. Subject to the nontransferability
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provision of Section 4 hereof, this Agreement shall be binding upon and inure to
the benefit of the respective heirs, representatives, successors and assigns of
the parties hereto. Nothing expressed or
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referred to in this Agreement is intended or shall be construed to give any
person other than the parties to this Agreement, or their respective successors
or assigns, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
14. ENTIRE AGREEMENT. Subject to the provisions of Sections 1 and 2.2
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hereof, this Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any and all
representations, agreements, arrangements or understandings not expressly set
forth herein.
15. TAXES. All taxes resulting from the issuance or exercise of the
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Options shall be the sole responsibility of Employee. The Company assumes no
responsibility for any taxes resulting from such issuance or exercise. Upon
exercise of the Options in whole or in part, the Company is authorized to
withhold (or cause the appropriate subsidiary of the Company to withhold) from
Employee's salary or other cash compensation such sums of money as are necessary
to pay Employee's withholding tax. The Company may elect to withhold from Option
Shares otherwise issuable hereunder a sufficient number to satisfy the Company's
withholding obligations. If the Company becomes required to pay withholding tax
to any federal, state or other taxing authority as the result of the granting of
the Options to Employee or the exercise thereof and Employee fails to provide
the Company with the funds with which to pay such withholding tax, the Company
may withhold up to 50% of each payment of salary or other consideration
otherwise payable to Employee (which will be in addition to any other required
or permitted withholdings), until the Company has been reimbursed for the entire
withholding tax it is required to pay.
16. ASSURANCES. Each of the parties hereto shall execute and deliver any
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and all additional papers and documents, and shall do any and all further acts
and thing, as may be reasonably necessary in connection with the performance of
their obligations hereunder and to carry out the intent of this Agreement.
17. ATTORNEYS' FEES. In the event that either party hereto brings an
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action or proceeding for a declaration of the rights of the parties under this
Agreement, for injunctive relief, for an alleged breach or default, or any other
action arising out of this Agreement or the transactions contemplated hereby, or
in the event that any party is in default of its obligations hereunder, whether
or not suit is filed or prosecuted to final judgment the prevailing party shall
be entitled to recover reasonable attorneys' fees, in addition to any other
court costs incurred and any other damages or relief awarded.
18. MODIFICATIONS, AMENDMENTS AND WAIVERS. No amendment, change or
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modification of this Agreement shall be valid unless it is in writing signed by
the parties hereto and expressly states that an amendment, change or
modification of this Agreement is being made. No claim of waiver, consent, or
acquiescence with respect to any provision of this Agreement shall be made
against any party hereto accept on the basis of a written instrument executed by
or on behalf of such party. The party hereto for whose benefit a condition is
herein inserted shall have the unilateral right to waive such condition.
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IN WITNESS WHEREOF, the Company and Employee have executed this Agreement
as of the date first above written.
LA-MAN CORPORATION,
a Nevada Corporation
By: /s/ J. Xxxxxxx Xxxxxxxx
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J. Xxxxxxx Xxxxxxxx
President and Chief Executive
Officer
EMPLOYEE
/s/ Xxxxxxxx X. Xxxxxx
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XXXXXXXX X. XXXXXX
