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EXHIBIT 10.35
INCENTIVE STOCK OPTION AGREEMENT
OF
ORIOLE HOMES CORP.
AGREEMENT dated this 4th day of October, 1999, between Oriole Homes
Corp., a Florida corporation (hereinafter called the "Company"), and Xxxxxxx X.
Xxxx (hereinafter called the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to grant Employee a proprietary interest
in the Company in order to increase his/her efforts on its behalf; and
WHEREAS, the Company has this day granted to the Employee an option to
purchase the number of shares of Class B Common Stock, par value $.10 per share,
of the Company, and at the option price, all as hereinafter stated, such option
to be exercisable not more than five (5) years after the date hereof; and
WHEREAS, the Employee is willing to accept said option and to be bound
by the terms and conditions thereof; and
WHEREAS, the execution and delivery of this Agreement has been duly
authorized by the Board of Directors of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained and other good and valuable considerations, the
receipt whereof is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
GRANT OF OPTION; ADJUSTMENT
OF SHARES COVERED BY OPTION
1.1 The Company hereby grants to the Employee an option to
purchase from the Company, upon the terms and conditions hereinafter set forth,
***10,000*** shares of Class B Common Stock, par value $.10 per share, of the
Company, for a consideration of $1.50 per share.
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1.2 The number of shares of Common Stock above stated, and the
purchase price thereof, shall be subject to adjustment from time to time as
provided herein.
PAYMENT FOR SHARES
2.1 The option price of the shares to be purchased pursuant to
each exercise of the within option shall be paid to the Company by the Employee
in full, in cash or check or in whole or in part by:
a. transfer to the Company of shares of Class A or Class B
Common Stock having a Fair Market Value equal to the option exercise price at
the time of such exercise; or
b. delivery of instructions to the Company to withhold from
the option shares that would otherwise be issued on the exercise that number of
option shares having a Fair Market Value equal to the option exercise price at
the time of such exercise. If the Fair Market Value of the number of whole
shares transferred or the number of whole option shares surrendered is less than
the total exercise price of the option, the shortfall must be made up in cash or
check.
EXERCISE OF OPTION
3.1 The within option may be exercised during the lifetime of the
Employee and in whole or in part at any time after October 4, 2001 and
thereafter until on or before October 4, 2004.
3.2 At least twenty days prior to the date upon which all or any
portion of the within option is to be exercised, the person entitled to exercise
the option shall deliver to the Company written notice of his/her election to
exercise all or part of the option, which notice shall specify the date and time
for the exercise of the option and the number of shares in respect to which the
option is to be exercised. The date specified in such notice shall be a business
day and the time specified shall be during the regular business hours of the
Company.
3.3 The person entitled to exercise the option shall, at the date
and time specified in such notice, pay to the Company the consideration set
forth in Section 2 hereof at the principal office of the Company, the option
price of the shares in respect of which the option is being exercised, and
contemporaneously, or as soon thereafter as is practical, the Company shall
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deliver to the person entitled to exercise the option, registered in the name of
such person, certificates representing the number of shares of stock or other
securities in respect of which the option is being exercised.
EMPLOYMENT OF EMPLOYEE
4.1 If the services of Employee are terminated for any reason on
or prior to October 4, 2004, the Company has the right to redeem the shares that
have been acquired at the exercise price. If such right of redemption is not
exercised within THIRTY (30) days from the termination date, the Company's
rights of redemption shall have no further force or effect.
RESTRICTIONS ON EXERCISE OF OPTION
AND SALE OF STOCK BY EMPLOYEE
5.1 Unless the option and shares acquired upon the exercise of the
option are registered under the Securities Act of 1933, as amended (the
"Securities Act"), the Employee hereby represents and warrants to the Company
that any and all shares of Class B Common Stock which shall be acquired pursuant
to the exercise of the option shall be acquired for the Employee's own account
and not for the account or beneficial interest of any other person or entity,
that such shares of Class B Common Stock shall be acquired for the Employee's
own investment and that the shares of Class B Common Stock shall not be acquired
with a view to or for resale in connection with the distribution of all or any
part thereof. Furthermore, the Employee agrees that any shares of Class B Common
Stock so acquired will bear an appropriate legend to signify their restriction
under the applicable securities laws and that "stop-transfer" instructions will
be given to the Company's transfer agent.
The Employee agrees to be subject to and bound by any other
restrictions imposed by, or which the Company believes to be necessary or
advisable to comply with, any Federal or State securities laws, including but
not limited to restrictions governing the time and circumstances or disposition
of the shares being acquired by exercise of such option.
NO RIGHTS AS SHAREHOLDER
OR TO CONTINUED EMPLOYMENT
6.1 The Employee shall not have any rights as a shareholder of the
Company with respect to any shares of Class B Common Stock prior to the date of
issuance to the Employee of the certificate or certificates for such shares and
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the grant of the option does not confer to the Employee any right to be employed
by the Company and will not interfere in any way with the right of the Company
to terminate the employment of the Employee.
NO SECURITIES ACT
REGISTRATION OBLIGATION
7.1 The Company shall have no obligation to the Employee to
register the Common Stock under the Securities Act.
MISCELLANEOUS
8.1 This Agreement shall be binding upon and inure to the benefit
of the Company and its successors and the Employee and his executors and/or
administrators, provided that the within option shall be nontransferable by the
Employee otherwise than by will or by the laws of descent and distribution, and
during the lifetime of the Employee the option shall be exercisable only by him.
8.2 In the event there are any changes in the Class B Common Stock
of the Company through merger, consolidation, recapitalization, stock dividend
or other change in the corporate or capital structure of the Company,
appropriate adjustments, as may seem equitable to the Board of Directors of the
Company, shall be made in the number of shares and the exercise price per share
of the options to prevent dilution of the rights granted hereunder.
8.3 For the purposes of this Agreement, a transfer of the Employee
from the Company to a subsidiary, or vice versa, or from one subsidiary to
another, shall not be deemed a termination of employment.
8.4 This Agreement shall be deemed to be made under and shall be
construed in accordance with the laws of the State of Florida.
8.5 This Agreement shall become effective as of the date hereof
and, unless sooner terminated, shall remain in effect for a period of five (5)
years from the date hereof. This Agreement may be terminated at any time by
mutual consent of the parties hereto, but no modification or amendment of this
Agreement shall become effective until such modification or amendment shall have
been approved by the Board of Directors of the Company.
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8.6 The terms and conditions of the 1994 Stock Option Plan of
Oriole Homes Corp., as approved by Shareholders on April 5, 1994 (the "Plan")
are hereby incorporated herein by reference and if there is any conflict between
this Agreement and the Plan the provisions of the Plan shall govern.
IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement
to be executed by its President or Vice President and the Employee has executed
this Agreement, the day and year first above written.
ORIOLE HOMES CORP.
/s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, Chief Executive Officer
/s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, Vice President-Sales & Marketing
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