EXHIBIT 10.28
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated August 16, 1996,
between General Electric Company, a New York corporation ("GE") and Star
Technologies, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, GE desires to issue and the Company desires to acquire an
option from GE to purchase 11,917 shares of the Company's Series B Senior
Preferred Stock, having a par value of $.01 per share and 7,945 shares of
the Company's Series C Senior Preferred Stock, having a par value of $.01
per share (collectively, the "Shares") on the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
Grant of Option
Section 1.1 The Option
GE hereby irrevocably grants to the Company an option (the "Option") to
purchase the Shares (including without limitation all rights to accrued and
unpaid dividends, whether or not declared) from GE. The Option shall be
exercisable by the Company at any time between August 16, 1996 and
August 16, 1999, inclusive, by delivery by the Company to GE of a notice
substantially in the form attached hereto as Exhibit A, together with
payment in the amount of $600,000 (the "Purchase Price").
Section 1.2 No Rights in Shares
Except as provided herein, the Company shall have no rights in respect
of the Shares until such time as it exercises the Option and makes payment
to GE as herein provided.
ARTICLE II
Representations, Warranties and Covenants
Section 2.1 Representations, Warranties and Covenants of GE
GE represents and warrants to and covenants with the Company that:
(a) GE owns and holds good and valid title to the Shares, free and
clear of any liens, pledges, charges, claims, security interests,
restrictions, options, commitments or encumbrances (except such restrictions
on transferability as are imposed by applicable state and federal securities
laws) (collectively, "Charges");
(b) GE holds Certificate Nos. B-14 and C-14 evidencing the Shares.
Upon surrender to the Company of such Certificates by GE, duly endorsed and
accompanied by a duly executed stock power, and upon payment of the Purchase
Price by the Company, the Company will have obtained good and valid title to
the Shares, free and clear of any Charges;
(c) GE has not granted or permitted to exist any Charges with respect
to the Shares, or any rights to acquire any of the Shares, other than such
as are granted to the Company hereunder; GE shall not, so long as the Option
is exercisable, grant or permit to exist any Charges with respect to the
Shares, or any rights to buy or otherwise acquire any of the Shares, other
than such as are granted to the Company hereunder, or cause the Shares to be
converted, in whole or in part, into Common Stock of the Company;
(d) GE has the full and unrestricted right, power, capacity and
authority to enter into, execute and deliver this Agreement and to transfer
and sell good and valid title to the Shares free and clear of any Charges;
and
(e) This Agreement, when executed and delivered, shall constitute a
legal, valid and binding obligation of GE.
Section 2.2 Representations and Warranties of the Company
The Company represents and warrants to GE that as of the date first set
forth above:
(a) The Company has the requisite power to enter into this Agreement;
and
(b) This Agreement, when executed and delivered, shall constitute a
legal, valid and binding obligation of the Company.
ARTICLE III
Conditions Precedent
Section 3.1 Conditions Precedent to Obligations of the Company
All obligations of the Company under this Agreement are subject to the
fulfillment, on or prior to the date first set forth above, of each of the
following conditions:
(a) GE's representations and warranties contained in this Agreement
shall be true and correct in all material respects as of the date first set
forth above as though such representations and warranties were made as of
such time; and
(b) All documents contemplated by this Agreement shall have been
executed by the parties or shall be executed by the parties simultaneously
with the execution of this Agreement.
Section 3.2 Conditions Precedent to Obligations of GE
All obligations of GE under this Agreement are subject to the
fulfillment, on or prior to the date first set forth above, of each of the
following conditions:
(a) The Company's representations and warranties contained in this
Agreement shall be true and correct in all material respects on and as of
the date first set forth above, as though such representations and
warranties were made as of such time; and
(b) All documents contemplated by this Agreement shall have been
executed by the parties or shall be executed by the parties simultaneously
with the execution of this Agreement.
Section 3.3 Further Action
Each of the parties hereto shall, subject to the fulfillment of or
before the date first set forth above of each of the conditions to its
performance set forth in this Article III or any waiver thereof by any of
the parties, perform such further acts and execute such documents as may be
reasonably required to effectuate the transactions contemplated hereby.
ARTICLE IV
Miscellaneous
Section 4.1 Stop Transfer Instructions
GE authorizes the Company to issue stop transfer instructions to its
stock transfer agent, or, so long as it may act as its own transfer agent,
to make a stop transfer notation in the stock records of the Company.
Section 4.2 Governing Law
The interpretation and construction of this Agreement, and all matters
relating hereto, shall be governed by the laws of the State of New York,
excluding its conflict of law rules.
Section 4.3 Third Party Beneficiaries
Each party hereto intends that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person other than
the parties hereto.
Section 4.4 Severability
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 4.5 Captions
The Article and Section captions used herein are for reference purposes
only, and shall not in any way affect the meaning or interpretation of this
Agreement.
Section 4.6 Notices
Any notice or other communications required or permitted hereunder
shall be in writing and be sufficiently given if delivered in person or sent
by facsimile or by registered or certified mail, postage prepaid, addressed
as follows:
If to GE, to:
General Electric Company
Medical Systems Division
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and if to Company, to:
Star Technologies, Inc.
000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
or such other address as shall be furnished in writing by either party to
the other, and such notice or communication shall be deemed to have been
given as of the date so delivered, sent by facsimile or mailed.
Section 4.7 Parties in Interest
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns; provided, that neither party may assign its rights
or delegate its obligations hereunder without the prior written consent of
the other party, and any attempt to so assign or delegate without such
consent shall be void.
Section 4.8 Counterparts
This Agreement may be executed in one or more counterparts (or upon
separate signature pages bound together into one or more counterparts), all
of which taken together shall constitute one instrument.
Section 4.9 Waiver
Waiver by either party of any breach or failure to comply with any
provision of this Agreement by the other party shall not be construed as, or
constitute, a continuing waiver of such provision, or a waiver of any other
breach of or failure to comply with any other provisions of this Agreement.
Section 4.10 Entire Agreement
This Agreement contains the entire understanding of the parties hereto
with respect to the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
Section 4.11 Amendments
This Agreement may not be amended or modified orally, but only by an
agreement in writing signed by the parties hereto.
IN WITNESS WHEREOF, each of GE and the Company has caused this Stock
Option Agreement to be duly executed by its duly authorized representative
on the date first set forth above.
GENERAL ELECTRIC COMPANY
By /s/ Xxxxx X. Xxxxxx
Name: . . . . . . . . Xxxxx X. Xxxxxx
Title:. . . . . . . . .Vice President
STAR TECHNOLOGIES, INC.
By /s/ Xxxxxx X. Xxxxxxx
Name: . . . . . . . Xxxxxx X. Xxxxxxx
Title:. . . . . . . . . . . President
EXHIBIT A TO STOCK OPTION AGREEMENT
NOTICE OF EXERCISE
General Electric Company
Medical Systems Division
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Pursuant to the Stock Option Agreement dated August 16, 1996
between General Electric Company ("GE") and Star Technologies,
Inc. (the "Company") (the "Agreement"), the Company hereby elects
to exercise its option to purchase the Shares (as defined in the
Agreement).
Concurrently with delivery of this Notice of Exercise, the
Company has paid to GE the Purchase Price (as defined in the
Agreement).
Very truly yours,
STAR TECHNOLOGIES, INC.
By____________________________
Receipt of the above
is hereby acknowledged:
GENERAL ELECTRIC COMPANY
By___________________________