STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered
into, effective as of April 17, 1998 (the "Effective Date"), by and between
American Film Technologies, Inc., a Delaware corporation (the "Company"), and
Xxxx Xxxxxxxx (the "Holder").
RECITALS
WHEREAS, the Company has elected Holder to serve on its Board
of Directors and the Holder has concurrently herewith agreed to serve as a
Director of the Company; and
WHEREAS, as the sole and exclusive consideration to be paid to
the Holder for agreeing to be so served as a director of the Company, the
Company has agreed to grant the stock option provided for herein to the Holder.
NOW, THEREFORE, the Company and the Holder covenant and agree
as follows:
1. Grant of the Option. For good and valuable consideration,
the receipt of which is hereby acknowledged, the Company hereby grants to the
Holder a stock option (the "Option") to acquire from the Company, from time to
time on the terms and conditions set forth herein, all or any portion of an
aggregate of Two Hundred Fifty Thousand (250,000) shares of the Company's $.002
par value common stock (the "Common Stock"), at the price equal to the $.03 per
share (the "Exercise Price"). Each of the number of shares of Common Stock into
which the Common Stock is exercisable and the Exercise Price is subject to
adjustment as provided in Section 4 hereof. This Agreement supercedes and
renders null and void the Stock Option Agreement between the parties dated
January 23,1997.
2. Term of the Option. Subject to the provisions of Section 8
hereof, the Option will commence on the date hereof and will terminate on April
16, 2003 (the "Expiration Date").
3. Vesting; Exercise.
The Holder's right to exercise all or any portion of the
Option and receive the shares of Common Stock represented thereby shall become
exercisable immediately as of the date hereof.
4. Adjustments Upon Changes in Capitalization or Other
Significant Events. In the event of any increase or decrease in the number of
the issued shares of Common Stock by reason of a stock dividend, stock split,
reverse stock split or consolidation or combination of shares and the like at
any time or from time to time throughout the term of
the Option such that the holders of outstanding Common Stock shall have had an
adjustment made, without payment therefor, in the number of shares of Common
Stock owned by them or shall have become entitled or required to have had an
adjustment made in the number of shares of Common Stock owned by them, without
payment therefor, there shall be a corresponding adjustment as to the number of
shares of Common Stock into which the Option is exercisable and to the Exercise
Price, with the result that the Holder's proportionate share of Common Stock
shall be maintained as before the occurrence of such event without change in the
aggregate exercise price applicable in the event the Holder elected to exercise
the Option in full (except for any change in the aggregate exercise price
resulting from rounding-off of share quantities or prices).
5. Exercise of the Option. To exercise all or any portion of
the Option, the Holder must do the following:
(a) deliver to the Company a written notice, in the
form of Exhibit "A" attached hereto and made a part hereof, specifying the
number of shares of Common Stock for which the Option is being exercised;
(b) surrender the Agreement to the Company upon
complete exercise of the Option;
(c) tender payment, either in cash or by cashiers or
certified check of the aggregate exercise price for the shares of Common Stock
for which the Option is being exercised;
(d) pay, or make arrangements satisfactory to the
Board for payment to the Company of, all federal, state and local taxes, if any,
required to be withheld by the Company in connection with the exercise of the
Option or the relevant portion thereof; and
(e) execute and deliver to the Company any other
documents required from time to time by the Company in order to promote
compliance with the Securities Act of 1933, as amended (the "1933 Act"),
applicable state securities laws, or any other applicable law, rule or
regulation.
6. Delivery of Share Certificate. As soon as practicable after
the Option or any portion thereof has been duly exercised, the Company will
deliver to the Holder a certificate for the shares of Common Stock for which the
Option was exercised. Unless the Option has expired or been exercised in full,
the Company and the Holder agree that the Company may affix to this Agreement an
appropriate notation indicating the number of shares for which the Option was
exercised and return this Agreement to the Holder. If any law or regulation of
the Securities and Exchange Commission (the "SEC") or of any other federal or
state governmental body having jurisdiction shall require the Company or the
Holder to take any action prior to issuance to the Holder of the shares of
Common Stock specified in the written notice of exercise, or if any listing
agreement between the Company and any national securities exchange requires such
shares to be listed prior to issuance, the date for the delivery of such shares
shall be adjourned until the completion of such action and/or such listing.
7. Fractional Shares. In no event shall the Company be
required to issue fractional shares upon the exercise of any portion of the
Option.
8. Termination, Adjustments to Term and Exercisability of the
Option. Notwithstanding the provisions of Section 2 above, unless the Director
has served at least one year as a Director of the Company in which case the
provisions of this Section 8 shall not apply, the term of the Option shall
expire upon occurrence either of the following events:
(a) except as set forth in (b) below, upon the
expiration of thirty (30) days from the time that Holder ceases to serve as a
director of the Company; or
(b) in the event the Holder ceases to serve as a
director of the Company as a result of Holder's death, the expiration of one (1)
year from the date of Holder's death.
9. Nontransferability. The Option is not transferable other
than (a) by operation of law, (1))to one or more trusts of which the Holder is a
trustor, or (c) by will or the laws of descent and distribution. The Option may
be exercised during the lifetime of the Holder only by the Holder or his or her
court-appointed legal representative.
10. Warranties and Representations of the Holder. By executing
this Agreement, the Holder accepts the Option and represents and warrants to the
Company and covenants and agrees with the Company as follows:
(a) THE SECURITIES OFFERED BY THIS INSTRUMENT HAVE
NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE, AND ANY SALE OF SUCH SECURITIES IS SUBJECT
TO COMPLIANCE WITH, OR THE AVAILABILITY OF EXEMPTIONS FROM COMPLIANCE WITH, THE
REGISTRATION AND QUALIFICATION REQUIREMENTS OF SUCH ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. THIS INSTRUMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION TO
ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION MAY NOT LAWFULLY
BE MADE. TRANSFER OF THIS INSTRUMENT AND THE SECURITIES OFFERED HEREBY IS
RESTRICTED AS PROVIDED IN SECTIONS 9 AND 12 HEREOF.
(b) The Holder acknowledges that no registration
statement under the1933 Act or under any state securities law has been filed and
that the Company has no obligation to file such a registration statement in the
future with respect to the Option or, any shares of Common Stock that may be
acquired upon exercise of the Option or any portion thereof.
(c) The Holder warrants and represents that the
Option and any shares of Common Stock acquired upon exercise of the Option or
any portion thereof will be acquired and held by the Holder for the Holder's own
account, for investment purposes only, and not with a view towards the
distribution or public offering thereof or with any present intention of
reselling or distributing the same at any particular future time.
(d) The Holder agrees not to sell, transfer or
otherwise voluntarily dispose of any shares of Common Stock that may be acquired
upon exercise of the Option or any portion thereof unless (i) there is an
effective registration statement under the 1933 Act covering the proposed
disposition and compliance with governing state securities laws, (ii) the Holder
delivers to the Company, at the Holder's expense, a "no-action" letter or
similar interpretative opinion, satisfactory in form and substance to the
Company, from the staff of each appropriate securities agency, to the effect
that such shares may be disposed of by the Holder in the manner proposed, or
(iii) the Holder delivers to the Company, an opinion of counsel reasonably
satisfactory to the Company, to the effect that the proposed disposition is
exempt from registration under the 1933 Act and governing state securities laws
(e) The Holder acknowledges and consents to the
appearance of a restrictive legend, in substantially the following form:
NOTICE: RESTRICTIONS ON TRANSFER
The securities represented by this certificate have
not been registered under the Securities Act of 1933, or any state
securities laws, and may not be offered, sold, transferred, encumbered,
or otherwise disposed of except upon satisfaction of certain
conditions. Information concerning these restrictions may be obtained
from the corporation Any offer or disposition of these securities
without satisfaction of said conditions will be wrongful and will not
entitle the transferee to register ownership of the securities with the
corporation.
(f) The Holder agrees not to sell, transfer or
otherwise dispose of the Option, except as specifically permitted by this
Agreement and any applicable securities laws.
11. Warranties and Representations of the Company.
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The grant of the Option to the Holder has been
duly authorized by all requisite corporation action on the part of the Company
and the shares of Common Stock represented by the Option have been properly
reserved for issuance.
(c) The number of shares of Common Stock represented
by the Option (when coupled with all shares currently outstanding and all shares
to be issued upon the exercise of all other currently outstanding options
granted by the Company which may be exercised absent an increase in the number
of authorized shares of common stock) does not exceed the number of shares of
Common Stock currently authorized for issuance by the Company's Certificate of
Incorporation (the "Certificate").
(d) No consents, approvals or permits are required
to be obtained from any third person, including, without limitation, any
securities commission, before the grant of the Option, nor do any conditions
precedent exist (other than those specifically identified herein) that would
impair the Company's ability to grant the Option hereunder.
(e) No consents, approvals, nor permits are required
to be obtained from any third person, other those which may be required under
applicable securities laws, before the issuance of Common Stock upon the
exercise of all or any portion of the Option.
12. Procedures Upon Permitted Transfer. Before any sale,
transfer or other disposition of any of the shares of Common Stock acquired upon
exercise of the Option, the Holder agrees to give written notice to the Company
of his or her intention to effect such disposition. The notice must describe the
circumstances of the proposed transfer in reasonable detail and must specify the
manner in which the requirements of Section 10(d) above will be satisfied in
connection with the proposed disposition. After (a) legal counsel to the Company
has determined in good faith that the requirements of Section 10(d) above will
be satisfied and (b) the Holder has executed such documentation as may be
necessary to effect the proposed disposition, the Company will, as soon as
practicable, transfer such shares in accordance with the terms of the notice.
Any stock certificate issued upon such transfer will bear a restrictive legend,
in the form set forth in Section 10(e) of this Agreement, unless in the opinion
of the Company's legal counsel such legend is not required. Compliance with the
foregoing procedures is in addition to compliance with any separate requirements
applicable to the Holder under the Certificate or otherwise.
13. Rights as Stockholder. The Option, in and of itself, does
not create rights in the Holder as a stockholder of the Company; provided that
upon any such exercise of the Option or any portion thereof that complies with
the requirements of this Agreement, the Holder shall immediately be vested with
all the rights afforded to other stockholders of the Company, regardless of when
the Company actually delivers certificates representing Common Stock to the
Holder.
14. Further Assurances. The Holder and the Company agree, from
time to time, to execute such additional documents as the other party hereto may
reasonably require to effectuate the purposes of this Agreement.
15. Binding Effect. This Agreement shall be binding upon the
Holder, the Company, the Holder's heirs, successors and assigns, and any
corporation or other entity that succeeds to the rights and liabilities of the
Company.
16. Cost of Litigation. In any action at law or in equity or
any arbitration to enforce any of the provisions or rights under this Agreement,
the unsuccessful party to such litigation, as determined by the court or
arbitrator in a final judgment or decree, shall pay the successful party or
parties all costs, expenses and reasonable attorneys' fees incurred by the
successful party or parties (including without limitation costs, expenses and
fees on any appeals), and if the successful party recovers judgment in any such
action or proceeding, such costs, expenses and attorneys' fees shall be included
as part of the judgment.
17. Entire Agreement; Modifications. This Agreement
constitutes the entire agreement and understanding between the Company and the
Holder regarding the subject matter hereofl No modification of the Option or
this Agreement, or waiver of any provision of this Agreement, shall be valid
unless in writing and duly executed by the Company and the Holder. The failure
of any party to enforce any of that party's rights against the other party for
breach of any of the terms of this Agreement shall not be construed as a waiver
of such rights as to any continued or subsequent breach.
18. Governing Law. This Agreement shall be governed by and
interpreted under the law of the State of California applicable to agreements
wholly negotiated, executed and to be performed in that state.
19. Notices. Any notices that either party to this Agreement
is required or may desire to give to the other shall be given by sending the
same to the other at the address below, or at such other address as may be
designated in writing by any party in a notice to the other given in the manner
prescribed in this Section 19. All such notices shall be in writing and
delivered by telex, facsimile, personal delivery or if sent by mail, certified
or registered mail, return receipt requested deposited so addressed, postage
prepaid. If sent by mail notices shall be deemed delivered five (5) business
days after deposit in the mail. The addresses to which any such notices shall be
given are the following:
To Holder:
Xx. Xxxx Xxxxxxxx
President
Cable Network Insights
00 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Phone: (000) 000-0000
To the Company:
Xxxxxx X. Xxxxxxx
c/o American Film Technologies, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
20. Severability. Whenever possible, each provision of this
Agreement shall be interpreted so as to be effective and valid under applicable
law. If any provision of this Agreement is prohibited or deemed invalid under
any applicable law, however, such provision shall be ineffective only to the
extent of such prohibition or invalidity, and neither the remainder of such
provision nor this Agreement shall be invalidated as a result.
21. Counterparts. This Agreement may be executed by the
parties in one or more counterparts, all of which taken together shall
constitute one instrument.
22. Jurisdiction. The parties hereto agree to submit to the
exclusive jurisdiction of the Superior Court of the State of California, County
of Los Angeles, any controversy, claim or dispute arising out of or relating to
this Agreement or the method and manner of performance thereof or the breach
thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
z
"Company" American Film Technologies, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx
Chief Executive Officer
"Holder"
/s/ Xxxx Xxxxxxxx
------------------------------------------
Xxxx Xxxxxxxx
June 5, 1998
Xx. Xxxxxx Xxxxxxx
CEO
American Film Technologies, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxxx:
Pursuant to our Stock Option Agreement dated January 23, 1997, this notice
regards my address change. Please delete "0 Xxxx Xxxxx, Xxxxx 0, Xxxxxxxxx
Complex" and insert "16 Xxxxxx Drive", in section 19 ("Notices"). Also please
insert my "Facsimile No.
(000)-000-0000".
Thank you and Best regards,
Xxxx Xxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Phone: 000-000-0000 or 000-000-0000 (hm)
Fax: 000-000-0000
cc: Xxxxx Xxxxxx, Esq., Jeffery, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
