Exhibit 10.28
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is entered into as of July 6, 2001 by and between
XXXXXXX X. XXXXXXX ("Optionee") and XXXXXXXX.XXX, INC., a Delaware corporation
(the "Corporation").
W I T N E S S E T H:
WHEREAS, Optionee and the Corporation have concurrently herewith entered into a
certain Employment Agreement (the "Employment Agreement"); and
WHEREAS, the Corporation desires to grant to Optionee the option to acquire
shares of common stock, $.01 par value, of the Corporation (the "Common Stock")
upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants
set forth herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, Optionee and the Corporation hereby agree as follows:
1. (a) GRANT OF THE OPTIONS. Subject to the terms and conditions of this
Agreement, the Corporation hereby grants to Optionee the right to purchase
(individually referred to as the "Option" or collectively referred to as the
"Options") from the Corporation Five Hundred Thousand (500,000) shares of the
Common Stock (the "Option Shares"), subject to the following vesting schedule,
at the per share purchase price equal to the closing price of the Corporation's
Common Stock on the day preceding the date of this Agreement but in no event
less than $0.625 per share for a five (5) year period commencing on the date
hereof:
(i) 125,000 Option Shares shall vest on the date hereof;
(ii) 125,000 Option Shares shall vest one (1) year from
the date hereof;
(iii) 125,000 Option Shares shall vest two (2) years from
the date hereof;
(iv) 125,000 Option Shares shall vest three (3) years from
the date hereof
2. RIGHTS OF OPTIONEE. Optionee by virtue of holding the Options to purchase the
Option Shares shall not have any rights to any dividends to be distributed by
the Corporation to the shareholders or any other rights of a shareholder in the
Corporation with respect to any of the Option Shares until Optionee exercises
the Option to purchase the Option Shares pursuant to Section 5 of this
Agreement.
3. TRANSFERABILITY OF THE OPTIONS. The Options may not be assigned, transferred,
or otherwise disposed of, or pledged or hypothecated or in any way be subject to
execution, attachment or other process. Any assignment, transfer, pledge,
hypothecation or other disposition of the Options attempted contrary to the
provisions of this Agreement or any levy, execution, attachment or other process
attempted upon the Options will be null and void and without effect.
4. EXERCISE OF THE OPTIONS. The Option to purchase the Option Shares shall be
exercisable upon the terms and conditions hereinafter set forth:
Subject to the terms and conditions of this Agreement, the Option to purchase
the Option Shares shall be exercisable by Optionee upon delivery of notice to
the Corporation (the "Exercise Notice") in accordance with the procedure
prescribed in this Section 4. The Exercise Notice shall state that Optionee has
elected to exercise the Option or any portion thereof. The Option may be
exercised by the Optionee, in whole or in part, by the delivery of the Exercise
Notice to the office of the Corporation, and by payment to the Corporation of
the Purchase Price in cash or by wire transfer, for each share being purchased.
Upon the exercise of the Option, a certificate or certificates for the shares of
Common Stock so purchased, registered in the name of the holder, shall be
promptly delivered to the holder hereof within a reasonable
time. The person in whose name any certificate for shares of Common Stock is
issued upon exercise of the Option shall for all purposes be deemed to have
become the holder of record of such shares on the date on which the Exercise
Notice was delivered and payment of the Purchase Price was made, except that, if
the date of such surrender and payment is a date on which the stock transfer
books of the Corporation are closed, such person shall be deemed to have become
the holder of such shares at the close of business on the next succeeding date
on which the stock transfer books are open.
5. ACCELERATED VESTING AND EXERCISE PERIOD.
(a) DEATH OR DISABILITY. In the event of Optionee's death or Disability while
employed with the Corporation prior to Optionee's vesting or exercise of all of
the Options, then all of the Options shall become immediately vested and
exercisable. For purposes hereof, ADisability@ shall mean Optionee's failure to
perform his employment duties with the Company for a continuous three month
period, or an aggregate of four months during any six month period, as a result
of ANY illness or accident, as verified by at least two U.S. licensed medical
doctors reasonably acceptable to the Company.
(b) CESSATION OF EMPLOYMENT. Notwithstanding anything to the contrary contained
herein, in the event that Optionee ceases to be employed by the Corporation for
any reason other than Optionee's death, Disability or termination by the Company
without cause (as defined within the Employment Agreement) (the date of
Optionee's cessation of employment shall be referred to as the "Cessation
Date"), then all non-vested Options shall expire and be forfeited on the
Cessation Date. In the event that the Company terminates Optionee's employment
without cause, then all non-vested Options shall immediately vest as of the
Cessation Date.
(c) CHANGE OF CONTROL. In the event of a "Change of Control" or a sale of all or
substantially all of the assets of the Corporation, then all non-vested Options
shall immediately vest. For purposes of this Agreement, "Change of Control"
shall mean (i) the occurrence of any event or transaction or series thereof
pursuant to which any person or group (as used in Rule 13(d)-1 of the Securities
Exchange Act of 1934) acquires beneficial ownership or control in excess of 50%
of the outstanding voting shares of the Company, or (ii) that the directors of
the Company serving on its Board of Directors on the date immediately preceding
such event or transaction or series thereof shall, in the aggregate, represent
less than fifty percent (50%) of the Board of Directors after such event or
transaction or series thereof.
6. RESERVATION OF SHARES. The Corporation covenants and agrees that at all times
that this Stock Option Agreement shall be in effect it shall have authorized,
and reserved, Common Stock of the Corporation sufficient for the exercise of the
Options and the purchase of Common Stock by Optionee.
7. SUBSTITUTION OF THIS AGREEMENT UPON ADOPTION OF QUALIFIED STOCK OPTION PLAN.
It is possible that the Corporation will, within twelve (12) months from the
date of this Agreement, adopt a Qualified Stock Option Plan for members of its
senior executive management, including Optionee. In the event of such adoption,
the Corporation agrees upon written request from Optionee to amend this
Agreement so as to cancel all unvested option rights set forth herein, PROVIDED,
HOWEVER that the same economic terms (including numbers of share options,
vesting periods and price) remain the same with respect to Optionee, and are
granted to Optionee, pursuant to the terms of the adopted Qualified Stock Option
Plan. All rights existing as to vested Stock Options as set forth herein shall
remain in effect notwithstanding the adoption of a Qualified Stock Option Plan.
8. INVESTMENT. Optionee acknowledges that the Option Shares are not being
offered pursuant to a registration statement under the Securities Act of 1933,
as amended (the "Act"), or any other securities laws. Optionee acknowledges that
the Option Shares are being acquired for Optionee's own account for investment
purposes only and not with a view to, or for sale in connection with, any public
distribution thereof and will not sell, or offer to sell or otherwise dispose,
of any interest in the Option Shares acquired by Optionee in violation of the
Act. Optionee has had substantial experience in business and financial matters
and in making investments of the type contemplated by this Agreement, is capable
of evaluating the merits and risks of the purchase of the Option Shares and is
able to bear the economic risks of such investment.
2
9. LIQUIDITY. Although there can be no assurance that the Option Shares will be
registered under the Act, that an exemption from such registration will be
available, or that there will be a market for the Option Shares in the future,
the Corporation agrees to use its best efforts to enable and facilitate
Optionee's sale or disposition of the Option Shares in compliance with the Act
at the earliest date reasonably practicable. Furthermore, Optionee is hereby
granted registration rights as described in Exhibit A attached hereto and
incorporated herein.
10. ADJUSTMENTS. In the event of a stock dividend, stock split, share
combination, recapitalization, merger, consolidation or reorganization of or by
the Corporation, the number or class of shares purchasable (and purchase price
per share) upon exercise of the Option immediately prior thereto shall be
adjusted so that Optionee shall be entitled to receive the kind and number of
shares or other securities which Optionee would have owned or have been entitled
to receive after the happening of any of the events described above, had the
Option been exercised immediately prior to the happening of any of such events
or any record date with respect thereto. Any adjustment made pursuant to this
Section shall become effective immediately after the effective date of such
events retroactive to the record date, if any, for such events. In the event
that any director, officer or employee of the Company shall hereafter be granted
options or warrants with antidilution provisions in addition to the foregoing
adjustment provision, then Optionee shall be deemed to have been granted the
same antidilution provisions with respect to the Options granted by this
Agreement. In the event of the grant of more than one such future antidilution
provisions, then Optionee shall be deemed to have been granted the most
favorable of such antidilution provisions thereof.
11. NOTICES. Any notice required or permitted hereunder shall be deemed validly
given if delivered by hand, verified overnight delivery, or by first class,
certified mail to the following address of Optionee (or to such other address as
Optionee may notify in writing to Corporation):
If to Optionee: Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
If to the Company: xXxxxxxx.xxx, Inc.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
12. BENEFITS OF AGREEMENT. This Agreement shall inure to the benefit and shall
be binding upon the successors, heirs, legal representatives and permitted
assigns of the parties hereto.
13. SEVERABILITY. In the event that any one or more provisions of this Agreement
shall be deemed to be illegal or unenforceable such illegality or
unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
14. GOVERNING LAW; VENUE. This Agreement will be covered and construed under the
laws of the State of Florida, without giving effect to rules governing conflicts
of law, with proper venue with respect to all disputes related to this Agreement
being Broward County, Florida.
15. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
THE CORPORATION:
XXXXXXXX.XXX, INC., a Delaware
corporation
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
Title: Chairman of the Board and
Chief Operating Officer
OPTIONEE: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
4
EXHIBIT "A"
REGISTRATION RIGHTS
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Option to which this Exhibit A is attached.
(a) PIGGY-BACK REGISTRATION RIGHTS. If at any time commencing after January 1,
2001 until the expiration of the Option (the "Registration Period"),
xXxxxxxx.xxx, Inc. (the "Company") proposes to register any of securities under
the Securities Act (other than registration of a stock option, stock purchase or
compensation or incentive plan or of stock issued or issuable pursuant to any
such plan, or dividend investment plan, a registration of stock proposed to be
issued in exchange for securities or assets of, or in connection with the merger
or consolidation with, another person or entity , or a registration of stock
proposed to be issued in exchange for securities of such other person or
entity), the Company shall give prompt written notice thereof to the Holder and,
upon the written request made within ten (10) days after the Holder and, upon
receipt of such notice, the Company shall use its best efforts to effect as part
of such registration the registration under the Securities Act of that number of
the Option shares ("Option Shares") which the Holder requests the Company to
register, provided that if the registration relates to a firm commitment,
underwritten public offering, the managing underwriter of the Company's public
offering, if any, shall be of the opinion that the inclusion in such
registration of such number of Option Shares will not interfere with the
successful marketing of all of the Company's securities being registered. If the
managing underwriter, if any, reasonably requests the Holder to reduce in whole
or in part the number of Option Shares sought or be registered by the Holder,
the Holder shall comply with the request of the managing underwriter. In any
underwritten offering, the Holder shall sell the Option Shares registered as
part of such underwritten offering to the underwriters of such offering on the
same terms and conditions as apply to the Company. In connection with any
registration pursuant to this Section (a), the Holder shall provide the Company
with such information regarding the Holder and the distribution of the Option
Shares as the Company and the managing underwriter shall reasonably request for
use in the registration statement relating to such offering. The Company shall
pay all costs and expenses of the Holder. The Company shall not be obliged to
effect registration under the Securities Act pursuant to this Section (a) on
more than one occasion; PROVIDED, HOWEVER, that this limitation shall not apply
if the number of shares requested to be registered by the Holder shall have been
reduced pursuant to the second sentence of this Section (a) unless and until the
occurrence of an occasion on which the shares requested by the Holder to be
registered have not been so reduced.
(b) DEMAND REGISTRATION RIGHTS. During the Registration Period but subsequent to
January 1, 2002, the Holder shall have the following demand registration rights,
subject to the conditions herein:
(i) REGISTRATION REQUEST. At any time during the Registration Period but
subsequent to January 3, 2002, and within 45 days of receipt by the Company of
the written request of the Holder, the Company shall diligently proceed to file
with the Securities Exchange Commission (the "SEC") a registration statement
under the Securities Act, on Form S-3 (or any successor form), or if the Company
is not eligible for Form S-3, on such other appropriate form as the Company
shall select, covering such number of Option Shares as the Holder shall notify
the Company in writing. The Company will use its best efforts to cause such
registration statement to become effective as soon as practicable following such
request; provided, however, that the Company will not be required to file a
registration statement on more than one occasion.
(ii) INFORMATION AND COSTS. The Holder shall provide the Company with such
information for use in the registration statement relating to such offering with
respect to the Option Shares to be sold, the plans for the proposed disposition
thereof, and such other information as shall in the opinion of counsel for the
Company be necessary to enable the Company to include in such registration
statement (or any amendment or supplement thereto) all material facts required
to be disclosed with respect to the Holder. The Company shall bear the cost of
such registration, including, but not limited to, all registration and filing
fees, and printing expenses.
(iii) OBLIGATION OF THE COMPANY. If and when the Company shall be required to
prepare a registration statement pursuant to this Section (b), the Company will:
1) use its best efforts to effect and to keep effective the necessary
registrations or qualifications under the securities or Blue Sky laws of such
jurisdictions within the United States as the Holder may reasonably request so
as to permit the sale, transfer or other disposition of the Option Shares being
registered; provided, that the Company shall not be required in connection
therewith or a condition thereto to qualify to do business or file a general
consent to service of process in any such jurisdictions;
2) furnish to the Holder such number of prospectuses (and each amendment and
supplement thereto) conforming to the requirements of the Securities Act, and
the rules and regulations thereunder, and such number of preliminary
prospectuses (containing substantially the information required to be provided
in such prospectuses) as the Holder or its underwriters may from time to time
reasonably request.
3) promptly notify the Holder of the happening of any event as a result of which
any preliminary prospectus or prospectus included in any registration statement
hereunder includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing; and
4) register the Option Shares to be sold on the securities exchange on which the
common stock of the Company may be listed so that they may be freely
transferable without restriction on such exchange.
5) keep such registration effective until the earlier of (a) twelve (12) months
after the effective date of the registration period, (b) the date all the Option
Shares have been sold or (c) the Expiration Date.
(c) GENERAL CONDITIONS. In connection with each registration effected pursuant
to Section (a) or Section (b), the Company and the Holder agree as follows:
(i) INDEMNIFICATION OF HOLDER. The Company shall indemnify and hold harmless the
Holder against any and all losses, claims, damages, or liabilities to which the
Holder may become subject under the Securities Act, or any other statute or
common law, including any amount paid in settlement of any litigation, commenced
or threatened, if such settlement is effected with the written consent of the
Company, and to reimburse them for any legal or other expenses incurred by them
in connection with investigating any claims and defending any action insofar as
any such losses, claim, damages, liabilities or actions arise out of or are
based upon 1) any untrue statement or alleged untrue statement of a material
fact, contained in the registration statement relating to the sale of the Option
Shares, or any post-effective amendment thereof, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, 2) any untrue statement
or alleged untrue statement of a material fact, contained in a preliminary
prospectus, if used prior to the effective date of such registration statement,
or contained in the prospectus (as amended or supplemented, if the Company shall
have filed with the SEC any amendment thereof or supplement thereto), if used
within the period during which the Company is required to keep the registration
statement to which the prospectus relates current pursuant to the terms hereof,
or the omission or alleged omission to state therein (if so used) the material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The indemnification
agreement contained in this agreement, however, shall not: 1) apply to such
losses, claims, damages, liabilities, or actions arising out of, or based upon,
any such untrue statement or alleged omission, if such statement or omission was
in reliance upon and in conformity with the information furnished in writing to
the Company by the Holder for use in the registration statement or any
preliminary prospectus or prospectus contained in the registration statement or
any amendment thereof or supplement thereto, or 2) inure to the benefit of any
underwriter from whom the person asserting any such losses, claims, damages,
expenses or liabilities purchased the securities which are the subject thereof
(or to the benefit of any person controlling such underwriter), if such
underwriter failed to send or give a copy of the prospectus to such person at or
prior to the written confirmation of the sale of such securities to such person.
(ii) INDEMNIFICATION OF THE COMPANY. The Holder and each underwriter of the
Option Shares to be registered (such party and such underwriters being referred
to severally in this subparagraph as the
2
"Indemnifying Party") shall agree, in the same manner and to the same extent as
set forth in the preceding paragraph, to indemnify and hold harmless the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act, its directors and those officers of the Company who
shall have signed such registration statement, with respect to any statement in
or omission from such registration statement or any post-effective amendment
thereof or any preliminary prospectus (as amended or supplemented, if amended or
supplemented as aforesaid) contained in such registration statement, if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnifying Party for
use in such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any amendment thereof or supplement
thereto.
(iii) NOTICE OF INDEMNIFIABLE ACTION. Each indemnified party will, promptly
after the receipt of notice of the commencement of any action against such
indemnified party in respect of which indemnity may be sought from a party
hereto on account of an indemnity agreement contained in this Section, notify
the indemnifying party in writing of the commencement thereof. The omission of
any indemnified party so to notify an indemnifying party of any such action
shall relieve the indemnifying party from any liability in respect of such
action which it may have to such indemnified party on account of the indemnity
agreement contained in this Section, but shall not relieve the indemnifying
party from any other liability which it may have to such indemnified party.
(iv) TERMINATION OF OBLIGATION. The Company shall not be required to file a
registration statement or to keep a registration statement effective if the
Option Shares could be publicly sold without registration under the Securities
Act.
3
